What Are Your Rights When a Contract Is Breached in South Africa?

 

Written by Roy Bregman, an admitted attorney with over 51 years' experience in contract and business law. Read Roy Bregman's full biography.

KEY TAKEAWAYS •      South African law recognises five forms of breach of contract: mora debitoris, mora creditoris, positive malperformance, repudiation and prevention of performance. •      Repudiation does not automatically end a contract. The innocent party may choose to enforce the agreement or cancel it by accepting the repudiation. •      Contract clauses can survive termination. In Twenty-Third Century Systems v SAP Africa Region [2025] ZASCA 51, the SCA allowed a party to rely on exclusion and time-bar clauses even after it had repudiated the agreement. •      Act quickly. Contractual time bars and prescription can extinguish a valid claim. Take legal advice before cancelling or accepting a repudiation.

 

Why Every Contract Needs a Breach Clause: The Legal Principles

Contracts can make people nervous, but they exist to protect everyone who signs them. Reducing an agreement to writing, with all its relevant clauses, gives both parties certainty, and no clause earns its keep more than the breach clause, which spells out the consequences if things go wrong.

South African contract law rests on the principle of pacta sunt servanda: agreements freely and seriously entered into must be honoured, as the Constitutional Court reaffirmed in Beadica 231 CC v Trustees, Oregon Trust 2020 (5) SA 247 (CC). When one party fails to keep their side of the bargain, the law steps in, but the remedies available depend on the type of breach committed and on what the contract itself says. As recent case law shows, the consequences of a breach are often governed by the very contract that was broken.

What Are the Five Types of Breach of Contract in South African Law?

1. Mora debitoris: late performance by the debtor

This breach occurs when the debtor (the party who must perform) fails to perform on time and the delay is their fault. A builder who misses an agreed completion date without lawful excuse is a classic example.

2. Mora creditoris: delay caused by the creditor

Here the creditor (the party entitled to receive performance) causes the breach. Their delay or lack of cooperation prevents or postpones the debtor's performance, for instance, an owner who refuses a contractor access to the site.

3. Positive malperformance: defective or improper performance

The debtor does perform, but badly. Either the performance is defective or improper, or the debtor does something the contract forbids, such as delivering substandard goods or doing work not specified in the agreement.

4. Repudiation: walking away from the deal

Repudiation occurs when a party indicates, by words or conduct, that they no longer intend to be bound by the contract, typically by trying to withdraw without justification. It may be total or partial. The test is objective: would a reasonable person conclude that proper performance will not be forthcoming? (Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA)).

5. Prevention of performance: making performance impossible

This final form of breach arises when either party culpably renders performance impossible, whether the debtor disables their own performance or the creditor makes the debtor's performance impossible.

Type of breach	What it means	Everyday example
Mora debitoris	The debtor is late in performing, through their own fault.	A builder misses the agreed completion date without lawful excuse.
Mora creditoris	The creditor's delay obstructs the debtor's performance.	An owner refuses the contractor access to the site.
Positive malperformance	Performance is rendered, but defectively or contrary to the contract.	A supplier delivers substandard goods.
Repudiation	A party shows they no longer intend to be bound.	A tenant announces they will not return after lockdown and stops paying.
Prevention of performance	A party culpably makes performance impossible.	A seller sells the same property to a third party.

 

Recent Case Law: Can a Party Rely on a Contract It Has Broken?

The facts: Twenty-Third Century Systems v SAP Africa Region [2025] ZASCA 51

In this 2025 Supreme Court of Appeal decision, a Zimbabwean IT company and its Botswana subsidiary had been resellers of SAP software across sub-Saharan Africa under agreements concluded in 2016. In July 2019 SAP terminated the agreements 'for good cause' and told the customer base that the companies were no longer accredited. The companies treated SAP's conduct as repudiation, accepted it, and the contract came to an end. They then sued SAP for more than US$68 million in lost profits.

SAP raised two defences drawn from the contract itself: a clause excluding liability for loss of profits, and a time-bar clause requiring any claim to be brought within one year. The companies argued that SAP could not breach the contract by repudiating it and then hide behind its clauses, in other words, that SAP was 'blowing hot and cold' (approbating and reprobating).

The decision: secondary obligations survive termination

The SCA dismissed the appeal. It confirmed that repudiation, even once accepted, does not erase the contract. Acceptance of a repudiation ends the parties' primary obligations (the duty to perform) but activates the secondary obligations: those terms that regulate the consequences of breach, such as damages, arbitration, limitation-of-liability and time-bar clauses. Because the agreement contained a survival clause stating that these provisions would endure 'any termination', SAP was entitled to rely on them, and the loss-of-profit claim failed.

The lesson is sobering: the clauses you sign today will govern your rights long after the relationship has collapsed, even against the party at fault.

More Key Cases Every Business Owner Should Know

Beadica 231 CC v Trustees, Oregon Trust: courts will hold you to your bargain

In Beadica 231 CC v Trustees, Oregon Trust 2020 (5) SA 247 (CC), franchisees leased business premises from a trust. Their leases gave them an option to renew, but only if they exercised it in writing by a fixed deadline. They missed the deadline and, facing the collapse of their franchises, argued that enforcing the clause strictly would be unfair and contrary to good faith.

The Constitutional Court disagreed. It held that abstract values such as fairness and good faith are not free-standing rules that allow a court to escape the terms of a contract; a court will only refuse to enforce a clause where enforcement would be so unfair or unreasonable as to be contrary to public policy. The deadline stood. The message for business is clear: the courts expect contracting parties to comply with their agreements to the letter.

Datacentrix v O-Line: get your breach notice right or lose your cancellation

In Datacentrix (Pty) Ltd v O-Line (Pty) Ltd [2022] ZASCA 162, a party purported to cancel a contract on the strength of a breach notice. The SCA held that the purpose of a notice requiring a defaulting party to remedy a breach is to tell that party exactly what it must do to avoid the consequences of its default. The notice must leave the defaulting party 'in no doubt as to what is required'; if it does not, the notice is invalid and the purported cancellation fails. A botched cancellation is dangerous: it can itself amount to repudiation, turning the innocent party into the guilty one.

How Should You Respond to a Breach? A Step-by-Step Approach

If you believe the other party has breached your contract, a measured sequence protects your rights:

1.   Read the contract first. Identify the breach clause, any notice requirements, time bars, and clauses (such as exclusions of liability) that survive termination.

2.   Gather your evidence. Keep correspondence, invoices, delivery notes and a timeline of events while memories are fresh.

3.   Send a proper breach notice. Follow the contract's notice formalities precisely and state clearly what must be remedied and by when.

4.   Elect your remedy deliberately. Decide, with advice, whether to enforce the contract or cancel it; an election, once made, is binding.

5.   Watch the clock. Diarise contractual time bars and the three-year prescription period; a late claim is a dead claim.

How to Protect Yourself When Drafting a Contract

The best time to win a breach dispute is before you sign. Insist on a clearly drafted breach clause setting out notice periods, remedies and grounds for cancellation. Scrutinise exclusion-of-liability, time-bar and survival clauses: as the SAP case shows, they will bind you even after the relationship ends, so negotiate them down if they are one-sided. Consider an arbitration or mediation clause for faster, private dispute resolution, and a domicilium clause so notices reach the right address. Above all, have the agreement reviewed by an attorney before signature; an hour of drafting advice is far cheaper than a year of litigation.

What Remedies Do You Have for Breach of Contract?

An innocent party may generally elect to uphold the contract and claim specific performance; or, where the breach is sufficiently serious or the contract grants a right of cancellation, to cancel and claim restitution. In either event, damages may be claimed to place the innocent party in the position they would have occupied had the contract been performed. Procedure matters: in Datacentrix (Pty) Ltd v O-Line (Pty) Ltd [2022] ZASCA 162 the SCA confirmed that a breach notice must leave the defaulting party 'in no doubt as to what is required', failing which a purported cancellation may be invalid.

Remember, too, that an election is final: once you choose to cancel or to enforce, you cannot later change course, which is why the choice should be made with professional advice. Note also that many commercial contracts contain penalty clauses fixing the amount payable on breach; these are enforceable, but a court may reduce a penalty that is out of proportion to the prejudice actually suffered, under the Conventional Penalties Act 15 of 1962.

Conclusion

A breach clause is not boilerplate; it is the rulebook for your worst-case scenario. The courts will hold parties to their bargain, including exclusion, time-bar and survival clauses that operate even after termination. Whether you face a late-performing debtor, defective work or an outright repudiation, your rights depend on acting correctly and promptly: electing the right remedy, giving proper notice and claiming within time. Expert advice at the outset, both when drafting and when a dispute looms, is the cheapest insurance you will ever buy. 

Frequently Asked Questions About Breach of Contract

Can I cancel a contract immediately if the other party breaches it?

Not always. You may generally only cancel if the breach is material (it goes to the root of the contract) or if the contract itself gives you a right to cancel, and you must strictly follow any notice procedure the contract prescribes.

What is the difference between repudiation and cancellation?

Repudiation is a form of breach: one party shows they no longer intend to be bound. Cancellation is the innocent party's response: by accepting the repudiation, they terminate the duty to perform and may claim damages.

How long do I have to claim for breach of contract in South Africa?

Ordinary contractual debts prescribe after three years, but contracts may impose shorter time bars. In the SAP case, a one-year contractual time bar defeated a US$68 million claim, so check your contract and act quickly.

Can the party who broke the contract still rely on its terms?

Yes. The SCA confirmed in 2025 that secondary terms, such as exclusion-of-liability, time-bar and arbitration clauses, survive termination and may be invoked even by the party who repudiated the agreement.

Do I need a written contract to sue for breach?

No. Oral agreements are generally binding (with limited exceptions, such as sales of land). A written contract, however, makes the terms, and any breach, far easier to prove.

Facing a Breach of Contract? Let's Resolve It Together

Whether you need a watertight contract drafted or a breach resolved decisively, Bregman Moodley Attorneys has specialised in contract and business law for over five decades. Don't let a time bar extinguish your claim. Contact us today on +27 (0)11 646-0335, email roy@bmalaw.co.za or visit bregmans.co.za for a consultation, and turn your contract from a source of worry into your strongest protection.

Must a Contract Be in Writing to Be Binding in South Africa?

 

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in contract and commercial law. Read Roy’s full biography. Taking the Sting Out of Legal Problems Since 1974

KEY TAKEAWAYS •    In South Africa most contracts are binding whether they are spoken, written or sealed with a handshake — writing is the exception, not the rule. •    A few contracts must be in writing to be valid, including the sale of land, suretyships, leases longer than ten years, antenuptial contracts and wills. •    A written contract is far easier to prove and protects both sides if a dispute arises, so it is almost always worth putting the deal on paper. •    The courts have confirmed that even an email can create or cancel a binding agreement — so think carefully before you hit send.

 

The short answer: not always

Many people assume a deal “doesn’t count” unless it is signed on paper. In South African law, that is usually not the case. As a general rule, an agreement is binding the moment the parties reach genuine consensus — whether they shake hands, agree over the phone, or sign a formal document. Writing is required only for a limited category of contracts. This article explains when a contract is binding, which contracts must be in writing, and why putting your agreement in writing is almost always the wiser course.

What makes a contract valid?

Before worrying about whether a contract is written, it helps to understand what turns an ordinary agreement into a binding contract. Every valid contract rests on the same building blocks:

1.      An offer by one party (the offeror — usually the seller or service provider) to supply goods or services to the other party (the offeree — the buyer or client) for an agreed price or fee.

2.      Acceptance of that offer by the offeree. The contract becomes binding at the moment the offer is accepted.

3.      Agreement on what is actually being offered — in other words, a genuine meeting of the minds.

4.      An intention to contract freely and voluntarily. If either party is misled, the contract can be set aside, and a person who is coerced or bullied into signing has a defence of duress.

The parties must also have the legal capacity to contract. Each person must be mentally capable and sober enough to understand what they are agreeing to and must be a major (18 years or older) unless assisted by a parent or guardian.

Oral or written — which contracts must be in writing?

As a rule, parties are free to do a deal with a handshake or even by word of mouth, and that deal will be enforceable. South African law recognises only a few categories of contract that must be in writing to be valid:

1.      The sale of immovable property — land, a house or a building.

2.      Suretyship agreements, credit agreements, antenuptial (marriage) contracts, leases of land longer than ten years, and contracts for donations to be performed in the future.

3.      Wills.

It is also worth remembering that some agreements are unenforceable no matter how carefully they are recorded. A contract that is illegal, contrary to public policy (contra bonos mores), or impossible to perform cannot be enforced — whether it is oral or written.

What have the courts said about oral and written contracts?

South African courts have grappled with this question for more than a century, and two decisions neatly capture the position.

Goldblatt v Fremantle (1920) — writing is usually not essential

In this early but still-cited decision, the Appellate Division considered an arrangement in which one party had undertaken to supply the other with goods over time. The court confirmed the principle that, as a general rule, no formalities are needed for a valid contract: writing is not essential to validity unless the law or the parties themselves require it. The judgment also laid down a practical rule still applied today — where the parties intend to be bound only once their agreement has been reduced to writing and signed, the contract comes into existence at that point and not before. The party who claims that an informal agreement was never meant to be binding until signed carries the burden of proving it. In short, a verbal agreement can be perfectly binding; whether it is depends on what the parties intended.

Spring Forest Trading v Wilberry (2015) — can you create or cancel a contract by email?

This more recent Supreme Court of Appeal decision shows how the principle works in the digital age. Spring Forest had leased mobile car-wash equipment from Wilberry under written agreements. Each agreement contained a non-variation clause stating that any cancellation had to be in writing and signed by both parties. When a dispute arose, the parties exchanged emails agreeing to cancel the agreements. One side later argued that the cancellation was invalid because the emails had not been signed in the traditional sense.

The Supreme Court of Appeal disagreed. It held that emails are a form of “writing” recognised by the Electronic Communications and Transactions Act, and that the parties’ typed names at the foot of their emails amounted to valid electronic signatures. The cancellation was therefore binding. The lesson for businesses and consumers alike is simple: an email can make or break a contract, so think carefully before you commit anything to writing.

Why put it in writing even when the law doesn’t require it?

Even where an oral agreement is perfectly valid, reducing it to writing is almost always the smarter choice. A written contract is far easier to prove if a dispute ends up in court. It records exactly what each party promised, sets out the consequences of a breach and the remedies available, and removes the room for “he said, she said” arguments that creep in as memories fade.

For businesses, the benefits are even clearer. A written contract sets out the terms and conditions of the transaction — the products, the prices, the delivery dates — and heads off misunderstandings before they start. Clients who have a clear written agreement are far more likely to resolve a problem amicably than to rush to litigation. Written contracts also allow a business to include protective terms, such as non-compete clauses that limit how a departing employee may use specialised knowledge of the business. And unlike a verbal deal, a written agreement can be amended cleanly by mutual consent whenever circumstances change.

How do you end a contract?

Contracts come to an end in several ways. Some terminate automatically — a fixed-term lease or a fixed-term employment contract simply runs its course. Where an agreement continues indefinitely, the parties can agree to end it once the business relationship has run its course.

The form of termination should match the form of the contract. An oral contract can be ended verbally, but a written contract should be terminated in writing. Many written contracts also require the innocent party to give the defaulting party written notice to fix the breach before the contract can be cancelled. Where a party is in breach — for example, the goods sold are defective or the services provided are poor — the other party can rely on the remedies set out in the contract or provided by law, such as the Consumer Protection Act. Importantly, ending a contract does not wipe out liability for a breach that occurred before termination.

The bottom line

A binding contract does not have to be in writing. In South Africa, a handshake or a verbal “yes” can create a fully enforceable agreement, and the courts will hold parties to their word. The exceptions — the sale of land, suretyships, long leases, antenuptial contracts and wills — must be in writing, but they are exactly that: exceptions. For everything else, the safest course is to put your agreement in writing anyway. It costs little, protects both sides, and turns a vague understanding into a clear, enforceable record.

Frequently asked questions

Is a verbal agreement legally binding in South Africa?

Yes. As a general rule a verbal agreement is just as binding as a written one, provided the parties reached genuine agreement and intended to be bound. The difficulty with a verbal contract is not its validity but proving its terms if a dispute arises.

Which contracts must be in writing to be valid?

The main ones are the sale of immovable property, suretyship agreements, credit agreements, antenuptial contracts, leases of land longer than ten years, contracts for future donations, and wills. These are not enforceable unless they are in writing and, in most cases, signed.

Can a contract be cancelled or changed by email?

It can. South African courts have accepted that emails are a form of writing and that a typed name at the foot of an email can be a valid electronic signature. Be careful what you commit to in an email, because it may bind you.

Why should I bother with a written contract if a verbal one is binding?

Because a written contract is far easier to prove, records exactly what each party agreed, and sets out what happens if something goes wrong. It protects both sides and reduces the risk of a costly dispute.

What makes a contract unenforceable even if it is in writing?

A contract that is illegal, contrary to public policy, or impossible to perform cannot be enforced, no matter how carefully it is written or signed.

 

Not sure whether your agreement is binding? Don’t leave it to chance. Bregman Moodley Attorneys has been taking the sting out of legal problems since 1974. Call us on 011 646 0335 or email roy@bmalaw.co.za for clear, practical advice on drafting, reviewing or enforcing your contract. Bee at ease — we’ll handle the rest.

 

Separated isn’t the same as divorced — and it could make your marriage void

 

Imagine this. A young couple, deeply in love, has a beautiful civil wedding. Years later, sorting out something routine, they discover their marriage was never valid at all. Why? Because the husband had married someone else years before under customary law. He’d long since moved on, separated and started a new life — but he never formally divorced his first wife. In the eyes of the law, he was still married.

It sounds like a technicality. It isn’t. It’s one of the most common — and most painful — surprises we see in family law.

Here’s the thing many people don’t realise: separating from a partner is not the same as divorcing them. A customary marriage is a real, legally recognised marriage. Walking away, even for ten or fifteen years, doesn’t end it. Only a court can. Until that happens, you are still legally married to your first spouse.

And the law is very clear that you cannot be married to two people at once. So if you enter a civil marriage while an earlier customary marriage is still legally alive, that second marriage is void — treated as if it never legally existed.

What “void” actually means for a couple

A void marriage is one the law says never counted. The couple may have a certificate, a ceremony, years of shared life — but none of it created a valid marriage. That has real consequences for property, inheritance, medical decisions and more.

The good news, and it matters: the children are protected. South African law no longer uses words like “illegitimate.” Children born of a marriage that turns out to be void are treated exactly like any other children, with full rights to both parents. Their security doesn’t depend on a paperwork problem their parents didn’t even know about.

Void vs voidable — a quick plain-English guide

•     A void marriage never legally existed (for example, one partner was already married, or the person who married you wasn’t a real marriage officer).

•     A voidable marriage is valid until a court sets it aside, because of a problem that existed on the wedding day — things like one partner being forced into it, or a serious deception.

•     A divorce, by contrast, ends a perfectly valid marriage that has simply broken down later.

Three different things, three very different outcomes.

The simple lesson

If you were ever married — by custom, in community, abroad, anywhere — and you split up, do not assume it just “fell away.” Tie off the loose ends properly before you marry again. A formal divorce, however overdue, is a few weeks of effort. Discovering a problem years later, often at the worst possible moment, is far harder to unwind.

If any of this sounds even a little familiar, it’s worth a quick, confidential conversation before it becomes a crisis. At Bregman Moodley Attorneys we’ve been helping Johannesburg families untangle exactly these situations since 1974 — hands-on, contactable and quick to respond.

🐝 Bee at ease. Send us an enquiry and we’ll follow up with a phone call within 24 working hours. bregmans.co.za

This post is general information, not legal advice. For your specific situation, please speak to a qualified attorney.

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.