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January 15, 2016

Restraint of trade - establishing a protectable proprietary interest.

In Super Group Trading (Pty) Ltd v Naidoo and another, the court enunciated the criteria for enforcing a restraint, namely whether:

·        there was a contract of employment between the employer and the employee, which included as one of its terms, the restraint of trade;
·        the employer has any proprietary interests warranting protection;
·        the employee breached the employment contract with the employer and was in breach of the restraint.
The legal position where an employer seeks to enforce a restraint of trade agreement on the basis of a risk of harm to its trade connections and in particular its connections with its customers, is as follows. The need of an employer to protect his trade connections arises where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he leaves the employer’s service he could easily induce the customers to follow him to a new business. A protectable interest in the form of customer connections does not come into being simply because the former employee had contact with the employer’s customers in the course of their work. The connection between the former employee and the customer must be such that it will probably enable the former employee to induce the customer to follow him to a new business. Based on the facts, the Court found that the applicant did not establish a protectable proprietary interest.

January 10, 2016

How healthy are you, legally speaking?

Legal Health Barometer

I invite you to go through the following assessment to see if you need legal help.
Are you married?    Yes □ No □
If so, are you aware of the pitfalls of a marriage in community of property? Yes □ No □
Do you know that you can convert your marriage in community of property to one out of community of property, to protect the assets of one or both spouses?
Are you living together? Yes □ No □
Do you know that there is no such thing as a “common law marriage” in our law and that if you choose not to get married, you do not enjoy the same protection as married couples? Yes □ No □
To protect yourself, you should conclude a cohabitation, or life partnership, agreement.
Do you have a will? Yes □ No □
If not, why not? If you appoint me as the executor of your will, I won’t charge you to draft the will.
Noisy Neighbours
Do you live in an urban area? Yes □ No □
If so, are you troubled by noisy neighbours, and do you know what your legal remedies are?
Are you about to buy or sell a property? Yes □ No □
Do you know how important it is to have an independent inspection done so that both parties know what defects may exist? In this way, you can avoid legal disputes once the ink on the paperwork has dried.
Are you a landlord or a tenant? Yes □ No □
Are you aware that there is a legal obligation on the landlord to invest your deposit in an interest-bearing account, and on the part of both parties to inspect the leased premises on taking occupation and on termination of the lease?
Employment Law
Are you an employer or an employee? 
Are you aware of your legal rights and obligations concerning your employment relationship? For example, if your employee is underperforming, do you know what steps you have to follow to improve performance or, if necessary, take steps that may lead to his or her dismissal?
Company Act compliance
Are you a director of a company or do you hold an executive position?
Yes □ No □
If so, are you aware of your responsibilities as a director or a prescribed officer, and the consequences (such as personal liability or even criminal prosecution) if you do not comply strictly with the provisions of the new companies act?
Consumer Protection Act
Are you aware of the provisions of the Consumer Protection Act? Yes □ No □
The rights of the consumer are entrenched and it is very important that a supplier of goods or services revisits its application for credit and terms and conditions, to make sure that it is fully compliant with the act.
Divorce Mediation
Are you in an unhappy relationship and considering divorce? Yes □ No □
If so, have you given thought to approaching an accredited divorce mediator to facilitate a resolution of the dispute? Adopting this approach will minimise the stress and certainly save you a great deal of money. A holistic approach is always a better option.
Deceased estates
Have you recently lost a loved one? Yes □ No □
We offer a free initial consultation to discuss the quickest and most cost-effective way of finalising your loved one’s deceased estate, thereby giving you peace of mind during your period of bereavement.
Rights of grandparents
Are you a grandparent?  Yes □ No □
If so, do you experience any difficulties in seeing your grandchildren?
Divorced spouse lives overseas
Are you divorced and do your ex-spouse and children live overseas? Yes □ No □
Do you have adequate contact with your children?
Estate Planning
Did you know that if you die with an estate worth more than R3.5 million, your estate will pay the taxman estate duty of 20% on the surplus? Yes □ No □
Have you considered minimising this effect by careful estate planning?