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Freddie Lombard
Freddie Lombard, Attorney
Category: South Africa Law
Satisfied Customers: 2681
Experience:  Practicing attorney and conveyancer with 16 years post article experience.
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To whom it may concern........ I currently have a restraint

Customer Question

To whom it may concern........
I currently have a restraint of trade for 2 Years at my current employer and going to start up my own Consulting Company.
I currently dealing as A SHEQ Manager and the clause say "agreed to and I am restrained from taking up employment at and Opposition Company or any company that’s business involves colour and colourants, within any group that may contain such companies as I am bound by Restraint of Trade & Confidentiality Agreement"
Restrained from taking up employment ????????
I wont be taking up employment from someone as i will be working for my own Company.......
Submitted: 1 year ago.
Category: South Africa Law
Expert:  Freddie Lombard replied 1 year ago.

Hi there

Thank you for your question. I will try to assist you in answering it today but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

Your question is actually a very difficult one and subject of volumes of law books. You will therefore understand that it will be impossible for me or anybody to say to you 100% without a doubt that the clause will not hold up in court.

First of all, restraint of trade clauses are legal and valid but it can be attacked on certain basis. The reason for this is because it entails a balancing of rights. The first right is contractual freedom of parties to agree to be bound by certain contract terms. The second is your right to work and to work for whomever or wherever you want.

The company trying to enforce the restraint of trade will have to show:

1. That there is a right worth protecting;

2. That the period and area over which the restraint of trade is valid is fair and reasonable.

Examples of 1 is, that you became privy to some trade secrets or a secret recipe or even a client list.

The second point has to do with a reasonable period for which the restraint can be enforced. A clause that states that you are never again allowed to work for a competitor will not hold up. Usually one or two years or even a couple of months depending on the specific facts of the matter.

The area over which the restraint is valid must also be fair and reasonable. If, for instance, this company only operates in a certain town they cannot stop you from opening shop in a different town. The wider the restraint clause, the more difficult it will be to enforce it.

From the little that you have written it is difficult to say yes or no but I lean towards the no if this is all that the clause states.

As far as your argument that you will not be taking up employment from somebody else, I am afraid that this will not be a valid point as the meaning is clear.

I hope this answered your question.

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Expert:  Freddie Lombard replied 1 year ago.

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