PRINCIPLES OF RESTRICTIVE COVENANTS AND THE RIGHTS OF AN EMPLOYEE IN THE WORKPLACE Shoprite Checkers (Pty) Ltd v Kgatle [2023] ZAWCHC 159

Abstract

Indubitably, employees have been subjected to ill treatment and improper working conditions by their employers. Prior to South Africa attaining full democracy and adopting the Constitution of the Republic of South Africa, 1996 (the Constitution) as supreme law, and the passing of post-democratic labour legislation, employees suffered at the hands of their employers. Section 23 of the Constitution, dealing with labour relations, guarantees certain fundamental rights for employees in the workplace. Furthermore, the Labour Relations Act (66 of 1995), read together with the Basic Conditions of Employment Act (75 of 1997), has key provisions aimed at protecting and promoting the rights of employees in the workplace. Non-compete agreements, which can lawfully be introduced by an employer in a contract of employment, find difficult application, particularly because the South African government, especially the legislative branch, has travelled lengths to uphold and protect the rights of employees. In terms of the law, employers have the right to include non-compete agreements in the employment contract. The rationale for non-compete agreements is to prevent an employee from moving to a different employer in a similar trade or business to that of the employer after the employee’s contract of employment is terminated either by the employee or the employer. The question that is most raised in disputes regarding the enforcement of non-compete agreements is whether the agreement violates the employee’s right to work in an occupation of their choice. Another equally important consideration regarding non-compete agreements is whether such agreements unnecessarily limit the employee’s chances of being economically active and of providing for themselves, and possibly dependants.

In this light, this case note reviews the judgment in Shoprite Checkers (Pty) Ltd v Kgatle ([2023] ZAWCHC 159). This case is significant in the South African context since it not only revisits some of the important principles of non-compete agreements, but does so having regard to the rights of employees. What is commendable in this case is the court’s readiness to protect the rights of the employee in question. However, before analysing the case, it is essential to restate some of the legal principles of both contract law and employment law.