A restraint of trade has been breached. What now? What must either side prove to the court?

When a restraint of trade has been signed between the employer and employee, what does each of them need to prove to the court, in order to be successful. From the employee's perspective, he/she will need to prove that the restraint of trade, which was signed, was unreasonable.

The employer on the other hand does not need to prove that the breach of the restraint has resulted in suffering actual harm. It will simply need to show that potentially its trade secrets or business connections could be exploited and that there was secret information to which the employee had access to which the employee could transmit to the new employer should he desire to do so.

In a recent case at the Gauteng High Court, these were the very issues, which were played out. An employee who was commenced employment in March 2022 as a technician in the Point of Sales solutions in the food industry, signed a restraint of trade where he undertook that for a period of 12 months and within a radius of 300km of the employer's business, he would not compete directly or indirectly with the employer's business, nor would he render the services or products which the employer provided in the marketplace. In addition he signed a confidentiality agreement not to use or disclose any confidential information of the employer for his personal benefit or that of any third party.

In April 2025 he resigned from that company and in May 2025 took up employment with a direct competitor. The former employer then immediately approached the high court citing a violation of the restraint of trade and confidentiality agreement, which he signed.

It said that the employee had access to its sensitive trade secrets, which could damage the competitive position of the employer and there were "protocols" which were not publicly available and were known only to a few of its employees in the company, one of whom was the employee.

The employee conceded that he was working for a direct competitor but said that enforcing the restraint would mean he would become unemployable and by implication that it was unreasonable. He said the point of sale industry was the only one in which he had held employment and knew no other industry, saying he held no post - school qualifications, was 27 years of age with a Grade 12 school qualification. He challenged the restraint saying that at the time he signed it, he was not on an equal bargaining footing with his employer.

Whilst the court accepted the employee's position that it should not be rendered unemployable, it said that the employee did not provide sufficient proof that he would become unemployable. The court said it was not necessary for the employer to prove actual harm and that it only needed to show that potentially its trade secrets or business connections could be exploited and that there was secret information to which the employee had access to and theoretically could transmit that to the new employer should he desire to do so.

However the court found the 300kms radius to be unreasonable and reduced the range of the restraint to a 100kms radius. On the rest of the employer's claim, the court took the view that the employee failed to provide sufficient proof that the scope and duration of 12 months of the restraint were unreasonable and granted the employer the right to enforce its restraint of trade against its former employee.

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