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On 27 October 2025, the Labour Appeal Court (“LAC”) gave reasons for why it enforced a restraint of trade agreement on 30 July 2025, in the matter of Backsports (Pty) Limited v Motlhanke and Another (JA2025/091548) 2025 ZALAC 50 (27 October 2025).
The appellant was Backsports (Pty) Ltd, a producer of live streaming and television broadcasting content, and the previous employer in this case. The first respondent was Mr Ofentse Motlhanke, the previous employee and the restrainee.
The Labour Court refused to enforce the restraint, firstly on the basis that the appellant had not established protectable interests, and further because the appellant had dismissed the first respondent, and had purportedly waived its right to enforce the restraint by doing so.
The LAC’s judgment is important, insofar as it rejects the Labour Court’s position that an employer who dismisses an employee, thereby waives it’s right to enforce a restraint of trade agreement against that employee.
The Labour Court’s abovementioned finding was contrary to established case law which explains that the manner in which the employment relationship ended does not matter for enforcement of the restraint. The LAC thus returned to the established authority on this point.
On the merits, the appellant proved the existence of the restraint and that the first respondent breached the restraint. Further, the appellant proved that it had protectable interests in its trade connections, which the first respondent had been soliciting for business.
The Labour Appeal Court upheld the appeal and reaffirmed the legal position that the act of dismissing an employee does not constitute a waiver of the right to enforce a restraint of trade agreement against that employee.
