Can an Employer Enforce a Restraint of Trade After Dismissal?

What the Labour Appeal Court decided in the Backsports case – and what it means for your business

Written by Roy Bregman, an admitted attorney with decades of experience in employment and commercial law.

If you run a business, a restraint of trade clause is one of the most useful ways to stop a departing employee from taking your clients, your staff or your trade secrets straight to a competitor. But a question comes up again and again: if you dismiss an employee for misconduct, does the restraint still count – or does firing them let them off the hook?

In a recent judgment, the Labour Appeal Court gave a clear answer. In this article we explain that decision in plain language, set out the legal principles behind it, and draw out the practical lessons for both employers and employees.

The short answer: Yes. Dismissing an employee does not automatically cancel a restraint of trade. As long as you acted lawfully and in good faith, the restraint can still be enforced – and the courts will protect genuine business interests like your customer relationships and goodwill.

The case at a glance

The judgment is Backsports (Pty) Ltd v Motlhanke and Another [2026] 1 BLLR 8 (LAC). The Labour Appeal Court (LAC) had to decide a single, practical question: is a restraint agreement still enforceable if the employee was dismissed for misconduct? The court confirmed that it can be.

Key takeaways

•      A restraint of trade can still be enforced even if the employee was dismissed for misconduct.

•      Courts will enforce a restraint where the employer can show a genuine interest worth protecting – such as customer connections, goodwill or confidential information.

•      Dismissal on its own does not cancel a restraint. The exception is where the dismissal was fraudulent or in bad faith.

•      A court can also step in to stop harassment, threats or sabotage that are linked to a restraint dispute.

The law behind restraints of trade

What is a restraint of trade?

A restraint of trade clause is a term in an employment contract that limits what an employee can do after they leave. It usually stops a former employee from:

•      working for a competitor;

•      approaching or poaching your customers;

•      recruiting your other staff;

•      using your confidential information; or

•      setting up a competing business in a particular area for a set period of time.

When will a court enforce one?

South African law recognises and enforces restraint agreements – but only if they are reasonable and they protect a genuine business interest. A restraint cannot simply be used to stop someone from earning a living or to punish competition for its own sake.

Two competing rights

When a restraint is challenged, the court has to weigh up two principles that pull in opposite directions:

Agreements should be honoured. If two parties freely sign a contract, they should generally be held to it. (Lawyers call this pacta sunt servanda.)

Everyone has the right to work. The Constitution gives every person the right to choose their trade, occupation or profession freely.

So, the court asks whether enforcing the restraint would unfairly stop someone from making a living – while also asking whether the employer has a real business interest that deserves protection.

The test the courts use

The leading case, Basson v Chilwan and Others, set out four questions a court works through:

•      Does the employer have an interest worth protecting?

•      Is that interest actually being threatened by the employee?

•      Do the employer’s interests outweigh the employee’s right to work?

•      Does public policy support enforcing the restraint?

Interests worth protecting typically include confidential information, trade secrets, customer connections, supplier relationships and goodwill.

Does being dismissed cancel a restraint?

Generally, no. An earlier case, Reeves and Another v Marfield Insurance Brokers CC and Another, established that a restraint can still apply even when employment ends in dismissal. The restraint stays in force unless the employer acted fraudulently or in bad faith – for example, by firing someone purely to trigger the restraint and shut them out unfairly. The Backsports judgment reaffirmed this principle.

What happened in Backsports

The background

Backsports operates in the internet, communications and technology sector. It employed the worker as a senior stream lead. His contract included restraint terms that, for 12 months after he left, prevented him from competing with the company, soliciting its customers, recruiting its staff, or working in the same field. The restraint applied across South Africa and other territories where the company did business.

The dismissal

The employee faced disciplinary proceedings on several misconduct charges. He pleaded guilty and was dismissed. He initially took an unfair dismissal dispute to the CCMA but later abandoned that claim.

The alleged breaches

The company then alleged that its former employee had:

•      approached major clients;

•      tried to recruit staff;

•      performed competing streaming services;

•      threatened company staff; and

•      threatened to sabotage company assets.

The evidence included WhatsApp messages and sightings of him working at events connected to the company’s clients.

The Labour Court said no

At first, the Labour Court refused to enforce the restraint. It reasoned that the employer had not proved the employee held confidential information, that he had worked there for less than 10 months, that the restraint was unreasonable, and that – because he had been dismissed rather than resigning – enforcing it would unfairly deprive him of a living. The Labour Court also held that it had no power to grant interdicts about threats and harassment, because the employment relationship had already ended.

The Labour Appeal Court disagreed

The restraint still applied

The Labour Appeal Court overturned that decision. Relying on the Reeves case, it confirmed that dismissal does not automatically invalidate a restraint. Crucially, there was no evidence that the dismissal had been fraudulent or made in bad faith – the employee had pleaded guilty and dropped his unfair dismissal claim. So the way his employment ended did not affect whether the restraint could be enforced.

There were real interests to protect

The court found the employer had genuine business interests worth protecting. The employee had contacted customers, performed competing work, approached staff to join competing activities, and tried to exploit customer relationships tied to the business. The court confirmed that customer connections and goodwill count as protectable interests – even where confidential information is not the main issue.

The employee breached the restraint

The court found that the employee’s conduct directly breached the agreement. By approaching customers and drawing staff into competing activities, he undermined the company’s commercial interests. The court therefore interdicted him from soliciting customers, recruiting staff, threatening employees, harassing the company, and damaging company property.

The court could deal with the threats too

The Labour Appeal Court also rejected the idea that it had no power over the threats and harassment. It held that the Labour Court can decide issues that are bound up with the main restraint dispute, including interdicts protecting staff and company assets – especially where that conduct is closely linked to the restraint dispute itself.

Why this judgment matters

Lessons for employers

•      Draft your restraint clauses carefully and clearly.

•      Spell out exactly which interests you are protecting.

•      Keep good records of your customer relationships and confidential information.

•      Act quickly and decisively when a breach happens.

The case shows that courts will enforce a reasonable restraint where you can show real harm – or a real threat of harm – to your business.

Lessons for employees

•      Being dismissed does not automatically cancel your restraint.

•      Approaching former clients can breach a restraint even if you never use confidential information.

•      Courts will look closely at what you actually do after you leave.

•      Interdicts can go beyond competition to cover harassment or sabotage.

In summary

The Backsports decision confirms that restraint of trade agreements remain enforceable even after dismissal, as long as the employer acts lawfully and in good faith. The courts will protect genuine business interests – customer relationships, goodwill and a stable workforce – while still balancing those interests against a person’s right to work and earn a living.

For businesses, the message is simple: a well-drafted restraint clause and prompt action when it is breached can make all the difference. For employees, it is a reminder that the obligations you sign up to don’t simply disappear when you leave.

Frequently asked questions

Can an employer enforce a restraint after dismissal?

Yes. South African courts have confirmed that dismissal does not automatically cancel a restraint agreement, unless the employer acted fraudulently or in bad faith.

What makes a restraint of trade enforceable?

A restraint is generally enforceable if it protects a genuine business interest and is reasonable in its duration, geographic area and scope.

What counts as a protectable business interest?

Things like confidential information, customer connections, goodwill, trade secrets, supplier relationships and a stable workforce.

Can a former employee be stopped from contacting old clients?

Yes. Soliciting former clients or customers can breach a restraint agreement and justify an interdict.

How long can a restraint of trade last?

It depends on the circumstances. A court will assess whether the length of the restraint is reasonable in relation to the interests the employer is trying to protect.

Need advice on a restraint of trade? Whether you are drafting employment contracts, enforcing a restraint, applying for an interdict or dealing with a post-employment dispute, Bregman Moodley Attorneys can help. Email us at info@bregmans.co.za and we will follow up with a phone call within 24 working hours.

Why People Put Off Drafting a Will in South Africa

 

Written by Roy Bregman, an admitted attorney with over 52 years' experience in wills and estate planning. Read Roy's full biography.

KEY TAKEAWAYS ·        A will is the only way to choose who inherits your assets, who raises your minor children, and who administers your estate. Without one, the Intestate Succession Act 81 of 1987 decides for you. ·        The common reasons for delay (feeling too young, avoiding the topic, assuming the family will sort it out, fear of cost or conflict, indecision) all get harder to resolve over time, not easier. ·        A properly drafted will reduces family disputes, shortens estate wind-up, and limits unnecessary tax leakage. It is one of the highest-value, lowest-cost legal documents you will ever sign. ·        At Bregman Moodley Attorneys you draft your will directly with a partner. Most straightforward wills are completed in one or two short meetings.

 

The gap between knowing and doing

Most adults know they need a will. Few have one in place. A will is the legal document where you decide who inherits your assets, who raises your minor children, and who winds up your estate. Without one, none of those decisions are yours.

The gap between knowing and doing is the single biggest source of avoidable family stress an estates practitioner sees in Gauteng. This article explains why people delay, what actually happens when they do, and how to take the matter off your worry list in a single meeting.

Why do people put off drafting a will?

Most reasons fall into one of five buckets. None of them hold up well under scrutiny.

"I am too young or too healthy"

Wills are not only for the elderly or the unwell. They are for any adult with assets, dependants, or both. Young families need wills more, not less, because there are minor children to provide for and guardians to nominate.

"I would rather not think about it"

Death is uncomfortable. Drafting a will, paradoxically, makes the topic easier to live with. Once your decisions are recorded, you stop carrying them around.

"My spouse and children will just inherit"

This is the most damaging assumption in South African estate practice. If you die without a will, the Intestate Succession Act 81 of 1987 decides who inherits and in what shares. The Act does not know about your blended family, your second marriage, the partner you never formally married, or the friend who raised you.

"It will be expensive or complicated"

A standard will from a reputable attorney is one of the lowest-cost professional documents you will ever sign. Complexity comes from the assets, not from the drafting.

"I cannot decide who should get what"

This is the most honest reason and the easiest one to resolve. A partner who has done this work for decades will usually walk you through the decision in one sitting.

What happens if you die without a will?

Your estate becomes intestate. The Master of the High Court appoints an executor (often someone you would not have chosen), and your assets are distributed under a statutory formula in the Intestate Succession Act.

The practical consequences are predictable. The wind-up takes longer because there is no nominated executor and no clear list of assets. Minor children's inheritances may be paid into the Guardian's Fund until they turn 18, with limited access in the meantime. Family members you wanted to provide for (a long-term partner you did not marry, a stepchild you did not formally adopt, a charity, a loyal employee) may receive nothing. Disputes among heirs are common and expensive. Litigation at this stage usually costs more than drafting a will twenty times over.

What does a properly drafted will actually do?

A well-drafted will does five things, in roughly this order of importance.

It directs your assets to the right people

You decide who inherits, in what proportions, and on what conditions.

It appoints an executor you trust

The executor controls the estate from the moment you die until it is wound up. A capable executor saves the family months and, often, real money.

It provides for minor children

You can nominate a guardian, set the age at which children receive their inheritance, and create a testamentary trust (a trust that comes into existence on your death) to hold and manage the inheritance until then.

It reduces disputes

Clear instructions, signed and witnessed correctly under the Wills Act 7 of 1953, are difficult to challenge. Most family fights happen where the wishes are unclear or unrecorded.

It supports sensible estate planning

A will is part of, not a substitute for, broader estate planning. Used well it can manage estate duty exposure, protect a vulnerable beneficiary, and align with any family trust or business succession plan you already have.

Why does delay make things worse over time?

Two things grow with time: the size of your estate and the complexity of your life. New property, new investments, a second marriage, children from different relationships, a growing business. Each one adds a layer that an out-of-date or non-existent will cannot handle. The point at which a will is hardest to draft is also the point at which it is most needed.

How long does it take to put a will in place?

For most clients, a straightforward will is done in two short meetings. The first covers your circumstances and instructions. The second is signing, witnessing, and taking custody of the original. Complex estates take longer, but rarely more than a few weeks.

Frequently asked questions

Is a handwritten or self-drafted will valid in South Africa?

It can be, but only if it complies strictly with the formalities in the Wills Act 7 of 1953. Most home-drafted wills fail on signing or witnessing and are partly or wholly invalid. The Master of the High Court rejects defective wills regularly. The cost of a properly drafted will is small compared with the cost of fixing a defective one after death.

What happens to my will when I get married, divorced, or have a child?

A subsequent marriage does not automatically invalidate your will, but it should be reviewed. Divorce has a specific effect: bequests to a former spouse generally lapse if you die within three months of the divorce. Any major life event (marriage, divorce, birth, death of a beneficiary, large inheritance, emigration) is a trigger to update.

Where should I keep my original will?

The original signed will is the only document the Master of the High Court will accept. Keep it somewhere fireproof, secure, and known to your executor. Many Bregman Moodley clients leave the original with us in safe custody at no cost and keep a certified copy at home.

Can I disinherit a spouse or child?

You can largely choose who inherits your estate. A surviving spouse may have a claim for reasonable maintenance under the Maintenance of Surviving Spouses Act 27 of 1990, and dependent children may have a maintenance claim against the estate. A clear will, drafted with these claims in mind, reduces the risk of a successful challenge.

Do I need a will if I already have a family trust?

Yes. A trust holds only the assets transferred into it. Anything in your personal name at the date of death (your home, vehicles, bank accounts, investments, personal effects) passes under your will. Trust and will should be drafted together so they pull in the same direction.

Conclusion

Drafting a will is one of the simplest, cheapest, and most generous acts of administration you can do for the people you love. The reasons people delay are real but solvable. The reasons not to delay are concrete and grow with time.

If you have been meaning to put a will in place, the next step is short: a single conversation with a partner who can give you a clear set of options and draft the document around your life, not a template.

Spam Calls Have Met Their Match: What the New Consumer Protection Regulations Mean for You

 

On 15 April 2026, the Minister of Trade, Industry and Competition, Mr Mpho Parks Tau, published the Consumer Protection Act Amendment Regulations, 2026 (Government Notice R. 7380 in Gazette No. 54521). The regulations amend the 2011 Consumer Protection Act Regulations and, for the first time, give South African consumers a practical, one-stop way to block unwanted direct marketing calls, SMSs and emails.

The idea is simple. Instead of fighting each marketer one by one, you register a single “pre-emptive block” with the National Consumer Commission (NCC). From that moment on, every registered direct marketer in the country is legally required to leave you alone.

What the new regulations actually do

The amendments insert new definitions and a new set of obligations into regulation 4 of the 2011 Regulations. In plain English, they do five important things.

•       Create a national opt-out registry. The NCC operates a central “opt-out registry” under section 11(3) of the Consumer Protection Act. The registry must be accessible to everyone in South Africa at all times, except during unforeseen technical interruptions.

•       Introduce a consumer “pre-emptive block”. A consumer can register a pre-emptive block by completing the form in the new Annexure O. One registration covers all direct marketers, not just the one who last bothered you.

•       Force direct marketers to register too. No company may contact a consumer for direct marketing unless the company is itself registered on the NCC’s opt-out registry, using the form in the new Annexure P. Initial registration is R2,574 in 2026, with annual renewal of R1,930.50 (rising each year).

•       Require monthly “cleansing” of marketing databases. Registered direct marketers must strip consumers who have registered a pre-emptive block out of their databases each month, checked against the Commission’s registry. This is no longer a once-off exercise — it is a continuous compliance duty.

•       Require marketers to identify themselves. Every direct marketing communication must show the marketer’s name, electronic address, physical address and contact number. Anonymous broadcasts from public platforms are prohibited.

Why this matters for consumers

Before 15 April 2026, the right to opt out existed on paper, but the system was broken in practice. You had to reply “STOP” to every SMS, hunt for unsubscribe links at the bottom of emails, and take fresh action every time a company bought or sold your data. As soon as your number changed hands, the spam started again.

The new regulations flip the script. The burden now sits with the marketer. If you have registered a pre-emptive block and a direct marketer contacts you anyway, the marketer is in breach of the regulations — even if it was another company that handed over your details. The onus is on marketers to check the registry and clean their data, every single month.

What you should do right now

If unwanted calls and messages are driving you up the wall, take these practical steps:

•       Register a pre-emptive block. Complete the Consumer Pre-emptive Block Form (Annexure O) with the NCC. It asks for your ID or passport number, name, contact details and physical address. Once captured, you are treated as having opted out of direct marketing across the board.

•       Keep your information current. Regulation 4(9) obliges you to keep the details on the registry up to date. If you change your cellphone number or email address, update the registry so the protection follows you.

•       Record every unwanted contact. Save screenshots of SMSs, WhatsApp messages and emails, and note the date, time and company name for any calls. Each contact after registration is a potential contravention.

•       Insist on the marketer’s details. Direct marketers are now required to disclose their full name, electronic address, physical address and telephone number in each communication. If they will not, that alone is a breach.

•       Lodge a complaint. Use the updated NCC complaint form (the new Annexure E) to report the marketer. The regulations preserve your right to pursue the company through the ordinary courts as well.

A word for businesses

If your business uses any form of direct marketing — cold calls, SMS campaigns, email blasts, WhatsApp broadcasts, in-app push messages — you now need to register on the NCC opt-out registry using Annexure P, pay the prescribed fee, and build a monthly cleansing process into your marketing operations. Failing to do so exposes the business to complaints before the NCC, referrals to the National Consumer Tribunal, and potential claims under POPIA where personal information has been misused.

How BMA Law can help

At BMA Law, we help consumers enforce their rights against aggressive direct marketers, and we help businesses bring their marketing operations in line with the new regulations before complaints start landing on their desks. Whether you need help filing an NCC complaint, drafting a cease-and-desist letter, or updating your marketing compliance framework, speak to our team for practical, no-nonsense advice.

Contact BMA Law: roy@bmalaw.co.za • www.bmalaw.co.za

 

Disclaimer: This article is for general information only and does not constitute legal advice. References to the Consumer Protection Act Amendment Regulations, 2026 are based on Government Notice R. 7380 published in Government Gazette No. 54521 on 15 April 2026. Consumers and businesses should consult a qualified legal adviser for advice on their specific circumstances.

Are Customary Marriages in South Africa In or Out of Community of Property?

 Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African matrimonial and customary law.

Key takeaways

·        Customary marriages before 15 November 2000 are generally governed by the older customary-law property system, subject to later constitutional and court developments.

·        Customary marriages entered into on or after 15 November 2000 are in community of property, unless the parties validly concluded an antenuptial contract before the marriage.

·        Courts have increasingly protected spouses, especially women, by recognising equality and proprietary rights in customary marriages.

·        Spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights. Failure to comply with legal requirements, including registration, can create serious evidential, administrative and financial risks.

Introduction

Customary marriages in South Africa are regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which came into operation on 15 November 2000. The Act gave full legal recognition to customary marriages and aligned this area of law with constitutional values such as equality and dignity.

A key aspect of the RCMA is the matrimonial property regime applicable to customary marriages:

·        Section 7(1) preserves the proprietary consequences of marriages concluded before the Act.

·        Section 7(2) provides that marriages concluded after the Act are automatically in community of property, unless the parties agreed otherwise through an antenuptial contract before marriage.

·        Section 7(6) regulates further marriages in polygynous unions and requires court approval of a written contract dealing with the matrimonial property system.

Registration deadline

Parties should also be aware of the current registration drive for unregistered customary marriages. A Government Gazette notice extended the period for registration and set 31 August 2026 as the deadline for registration of unregistered customary marriages.

Although failure to register does not necessarily make an otherwise valid customary marriage void, non-registration can cause major practical problems. In practice, an unregistered marriage may be difficult to prove and may create disputes or delays relating to inheritance, pension benefits, property rights, divorce proceedings, maintenance claims, and dealings with the Department of Home Affairs.

For that reason, spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights.

Case law developments

Gumede v President of the Republic of South Africa (2009)

Facts: The applicant was married under customary law before 2000. Under the traditional system, her husband controlled the family property, and she had no ownership rights.

Decision: The Constitutional Court held that the provision was unconstitutional and that monogamous customary marriages entered into before 2000 must be treated in a way that protects equality and proprietary rights.

Ramuhovhi v President of the Republic of South Africa (2017)

Facts: The case involved a polygynous customary marriage entered into before 2000.

Decision: The Court confirmed that women in such marriages must enjoy equal proprietary protection.

Mayelane v Ngwenyama (2012)

Facts: A husband entered into a second customary marriage without informing the first wife.

Decision: The Court held that the consent of the first wife is required in the applicable customary-law context.

MM v MN (2013)

Facts: The husband entered into a further marriage without proper court approval of a matrimonial property contract.

Decision: The Court held that the situation created serious property uncertainty, underscoring the importance of compliance with statutory requirements.

Conclusion

The legal position has developed significantly. Post-2000 customary marriages are in community of property by default unless excluded by antenuptial contract, while pre-2000 marriages require a more careful analysis in light of customary law and constitutional case law.

Registration is also now especially important. Even where a marriage may still be legally valid without registration, failure to register before 31 August 2026 may create serious proof and enforcement difficulties in practice.

Frequently asked questions

Are all customary marriages now in community of property?

No. It depends mainly on when the marriage was concluded and whether any valid antenuptial arrangement applies.

Can spouses change their matrimonial property system?

Yes. In appropriate cases, this can be done with court approval.

What happens if a husband takes another wife without court approval?

The further marriage may create validity and property consequences, especially in relation to the matrimonial property system and the rights of existing spouses.

What happens if a customary marriage is not registered by 31 August 2026?

The marriage may still be capable of legal recognition if it was otherwise valid, but the parties may face serious difficulty proving it and enforcing rights arising from it. This can affect estates, property transfers, pensions, maintenance, and divorce proceedings.