by slamatattorneys | May 24, 2021 | Contract Law
RESTRAINT OF TRADE versus PUBLIC INTEREST? IS THIS THE TRUE QUESTION?
RESTRAINT OF TRADE IN SOUTH AFRICAN LAW… AND THE PUBLIC INTEREST?
In essence, a restraint of trade provision is a term in a contract of employment that (typically) provides that after termination of employment, the employee is restricted in the work s/he can perform in that s/he will be restrained/restricted from performing the same/similar work in competition with his/her former employer, for an agreed period of time and in respect of an agreed geographical area. Further restrictions may be agreed to such as the number of people to be restricted, the types of entities and the industries involved.
These restraint provisions/terms aim to protect the employer’s proprietary interests, such as client and customer goodwill and connections, trade secrets, confidential information, know-how, business relationships, business territories, employment confidentiality.
A pertinent question to be asked is: to what extent is an employer legally capable to restrain a former employee?… especially where the employee only has the skills necessary to perform the job which s/he is restrained from performing?
The potential impact of restraint of trade terms/undertakings on former employees of a business is invariably substantially prejudicial and has it has been argued to prevent restrained persons from exercising their constitutional rights to choose their trade, occupation or profession.
A proper understanding and appreciation of how the law and the court will approach any application for a former employee to be restrained from competing with his former employer is to appreciate that there is no statute or legislation or regulation which provides an employer a right to this type of protection.
It is apposite to understand that unless the employee agrees in his contract of employment to be bound by a restraint, the employer has no legal entitlement to try and prevent him from working after termination of the employment relationship, even if this is in direct competition with the erstwhile employer.
Therefore, the manner in which the restraint terms are formulated in the contract of employment is critical, as the courts look very closely at the actual terms and conditions of these undertakings to determine if same should be enforced by the courts.
Invariably, the courts perform a balancing act between the rights of the employer not to be subjected to unfair competition, and the right of the employee to choose his trade.
The leading South African precedent dealing with these issues is Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SALJ 874 (A) which has been referred to with authority on numerous occasions since 1984. The Appellate Court, in 1984, laid down the general principle that, on the face of it, restraint terms are not unlawful per se and every restraint of trade agreement contained in an employment contract signed by an employee is assumed to be lawful and enforceable, The onus thus lies on the employee, if he/she wishes to be released from the restraint, to show that the restraint is unreasonable and contrary to public policy or the public interest as more commonly known.
In determining whether a restraint is enforceable, a court will consider, inter alia, the following factors:
- the duration of time that the restraint operates;
- any limitations on the employee working in his/her personal capacity or through a company;
- whether or not the restraint applies only to the employee or more than one person in association with the employee;
- whether the employee still has the ability to earn a living;
- the geographical area to which the restraint applies;
- whether a restraint payment was paid to the employee;
- the proprietary interests, goodwill, income assets, revenue flows, or capital assets that the employer seeks to protect.
Since 1993 (interim Constitution of South Africa) and 1997 (final South Constitution of South Africa) complex constitutional considerations have become applicable to restraint of trade provisions found in contracts of employment in that competing interests of employers and employees have to be weighed very carefully in light of the relevant constitutional provisions in the Bill of Rights and the manner in which same are applied in the law courts.
In the situation where an employee only possesses the skills of the particular job which s/he is restrained from performing, the consideration of the employee’s ability to continue to earn a livelihood will pose serious problems for the enforceability of any restraint.
The Magna Alloys case above also stated that “It is in the public interest that agreements entered into freely should be honoured and that everyone should, as far as possible, be able to operate freely in the commercial and professional world.” This provides for conflicting interests between the employer and employee which must be balanced in light of the public interest. This view has gained much plaudits and support over the years and particularly in the recent case law since 2010.
It is well established that the proprietary interests that can be protected by a restraint agreement are of two kinds. The first consists of the relationships with customers, potential customers, suppliers and others (trade connections). The second consists of all confidential matter which is useful for the carrying on of the business and which could therefore be used by a competitor to gain a competitive advantage (trade secrets).
In Aranda Textile Mills (Pty) Ltd v Hurn and another [2000] JOL 7350 (E), the court emphasised that employers’ proprietary interests sought to be protected must be properly described as belonging to the employer. The court pointed out that it will generally be contrary to the public interest to enforce an unreasonable restriction on a person’s freedom to trade. The court went on to record that:
“A man’s skills and abilities are a part of himself and he cannot ordinarily be precluded from making use of them by a contract in restraint of trade. An employer who has been to the trouble and expense of training a workman in an established field of work, and who has thereby provided the workman with knowledge and skills in the public domain, which the workman might not otherwise have gained, has an obvious interest in retaining the services of the workmen. In the eye of the law, however, such an interest is not in the nature of property in the hands of the employer. It affords the employer no proprietary interest in the workmen, his know-how or skills. Such know-how and skills in the public domain become attributes of the workman himself, do not belong in any way to the employer and the use thereof cannot be subjected to restriction by way of a restraint of trade provision. Such a restriction, impinging as it would on the workman’s ability to compete freely and fairly in the market place, is unreasonable and contrary to public policy.”
It will generally be contrary to the public interest to enforce an unreasonable restriction on a person’s freedom to trade/earn a living. However, where the proprietary interests of the employer, which needs protection, outweighs the employee’s interest in continuing his trade, such a restraint will be reasonable and enforceable.
In the recent case of PB Hairdressing Organisation v Rudolph Kruger and Jingles Hair Emporium, the Applicant employer in seeking to enforce a restraint of trade provision, failed to demonstrate any protectable interests. The Labour Court dismissed the employer’s application.
In the case of PB Hairdressing Organisation t/a Carlton Hair International v Vinciguerra and Another (J2948/16) [2017] ZALCJHB, the Labour Court dismissed the employer’s application to enforce a restraint of trade. The Labour Court found on the facts, inter alia, that the restraint sought to be enforced was contrary to public policy and thus unenforceable. The employee was 21 years old and had been employed a junior hair stylist. He averred that he only accrued between 20 to 30 regular clients in the 6 months that he spent working at Carlton Hair, where a more senior stylist would have 12 to 20 regular clients a day. In this instance, the court held that the restraint of trade which restrained him until 18 November 2017 from within a radius of ten kilometres (as the crow flies) from the front door of the salon, was against public policy and unreasonable because the employee was a junior employee, qualified for only 6 months and who was only 21 years old.
Clearly, employers face an uphill task to enforce restraint provisions in contracts of employment. It is vital that such restraint terms are professionally crafted, drafted in light of the prevailing business world and changing circumstances.
Copying and pasting of restraint of trade terms into employment contracts does not suffice.
by slamatattorneys | May 24, 2021 | Criminal Law
REVENGE PORN IN SOUTH AFRICA – LATEST CYBER SCOURGE
“Revenge Porn”, the new Social Media Pandemic?
Upcoming law in South Africa.
Law reform in the USA and UK has in recent years criminalized the activity known as “revenge porn” which involves the posting of intimate sexual images and/or videos of an ex-partner without their consent particularly when a relationship has ended. This typically happens when a jilted lover wants to get back at the other party when the relationship ends acrimoniously.
The recent US and UK laws apply also to the distribution of sexual imagery of someone on the web without their consent and applies to all forms of social mediums, including social media apps and online platforms whether on conventional PCs or on mobiles.
Further laws in the US, permit the US government to collect the content of emails, texts and other electronic communications without a warrant to aid in the prosecution of “revenge porn” criminal cases.
In the UK, the law defines “revenge porn” as “…photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”.
Case commentary from the UK shows that one person, Hazel Higgleton, a 25-year-old body piercer from Chelmsford, told that her ex-boyfriend posted a sex tape of them together on various pornographic sites last year. She said she had been “pressured” into recording the tape.
However, there is some dissent about the new laws as some legal groups fear it will lead to thousands of young people being criminalized. There are concerns that the sheer volume of complaints will be overwhelming and precisely how the law courts will interpret and apply the new laws.
SOUTH AFRICA – Upcoming Law Reform
In South Africa, there have been a number of new laws enacted by Parliament over the past years in response to law reform abroad, typically then process takes about 5-10 years however, recently law reform appears to be occurring more rapidly as the SA government appears to want to keep up with international law reform trends.
Another example of this action, is the upcoming amendments to the Films and Publications Act of 1996, which seeks to criminalize the activity known as “revenge porn” with severe sanctions for contravention of the Act.
In keeping with the recent legislative enactments to promote gender equality in South Africa, the intended amendments appear to be in furtherance of government’s trend to level the gender playing field.
The international literature on the subject of ‘revenge porn’ suggests that the affected persons are normally the women in relationship which is the subject of a “revenge porn” criminal case. These women are coming out of a relationship or break-up and find that their partner has released a photo or video publicly on the web and which was sent privately during the relationship.
The content is of course, a picture or video clip of the woman in a provocative light, which is sent in confidence to their partner in knowing or thinking that the content would remain between only them.
But, later the jilted partner sends the video to her your friends, family and even gone so far as to upload the content of a social media platform, reaching thousands of people. The side affects of this traumatising situation can lead to serious issues down the road to the woman’s dignity, self-confidence and mental well-being.
This “revenge porn” problem is dealt with in the Films and Publications Amendment Bill was signed off by the President. Two of the essential features of the Amendment Act are the following:
Films and Publications Amendment Act 11 of 2019
Prohibitions, offences and penalties on distribution of private sexual photographs and films
24E. (1) Any person who knowingly distributes private sexual photographs and films in any medium including the internet and social media, without prior consent of the individual or individuals in the said sexual photographs and films with the intention to cause the said individual harm shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150 000 or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.
(2) Any person who knowingly distributes private sexual photographs and films in any medium including through the internet, without prior consent of the individual or individuals and where the individual or individuals in the photographs or films is identified or identifiable in the said photographs and films, shall be guilty of an offence and liable upon conviction, to a fine not exceeding R300 000 or to imprisonment for a period not exceeding four years or to both a fine and such imprisonment.
Special feature – Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn.
Peer-Reviewed Journal: Feminist Criminology 2017, Vol. 12(1) 22–42
Background
Non-consensual pornography is a relatively new phenomenon that has grown substantially in the past few years and involves uploading nude or semi-nude images/videos of a person online without their consent.
Some nonconsensual pornography website administrators use computer hacking to obtain nude photos from women, and then extort them by pressuring them to pay a fee to have their photos removed (Laird, 2013). The public and the media have commonly referred to nonconsensual pornography as “revenge porn.”
Revenge porn occurs when a person uploads nude/semi-nude photos of someone online, often as revenge after a relationship has ended. Hence, revenge porn is included under the umbrella of nonconsensual pornography, but nonconsensual pornography does not always include revenge porn.
Several nonconsensual pornography websites encourage users to submit nude photos of their ex-partner(s) for revenge. These websites often include forums that allow others to leave derogatory or salacious comments about the women in the photos.
The first revenge porn website—isanyoneup.com—was created in 2010 by Hunter Moore (Stroud, 2014). In a 3-month period in 2011, the website received 10,000 photo submissions. Moore gained a significant profit from advertising on the website, sometimes bringing in US$13,000 per month in revenue.
The website was eventually shut down after Moore sold the website to an anti-bullying organization for an undisclosed amount, citing “legal hassles” and underage pornography submissions as reasons for selling the website (Visser, 2012). However, several other nonconsensual pornography websites have since been created and have gained a large following (Stroud, 2014).
The impact of nonconsensual pornography includes public shame and humiliation, an inability to find new romantic partners, mental health effects such as depression and anxiety, job loss or problems securing new employment, and offline harassment and stalking (Citron & Franks, 2014).
Citron and Franks (2014) reported on a nonrandom sample of 1,244 nonconsensual pornography survivors, and found that more than 50% of survivors’ full names and links to social media profiles accompanied the naked photos, and that 20% of survivors’ email addresses and phone numbers were posted with their photos. Once a photo is posted online, it is challenging to completely remove from the internet, which means the harm is continuous and long-lasting (Cecil, 2014).
In an attempt to reduce the emotional impacts of nonconsensual pornography, some women delete their online social media accounts. Removing all social media profiles often separates women from positive social connections with friends and family, as social media is a commonplace, contemporary way to stay connected with loved ones. Apart from the internet, in “real life,” some women completely alter their lives and routines to minimize the impact of nonconsensual pornography (Cecil, 2014).
Nonconsensual pornography did not exist on such a broad scale even 5 years ago. Smartphones, digital cameras, and computers have revolutionized photography – individuals frequently use smartphones for photography, and upload photos online in the privacy of their own homes.
A richer discussion of nonconsensual pornography has been present in the media recently, particularly through social media platforms such as Facebook and Twitter. Social media has contributed to a vocal feminist backlash against female oppression, as social media allows thoughts to be broadcasted to large audiences (Rentschler, 2014).
Even more recently, a widespread “celebrity photo leak” involving naked photos of many A-list celebrities, including Jennifer Lawrence and Kate Upton, sparked an even deeper discussion in the media regarding nonconsensual pornography, female oppression, and consent.
A Google search of “celebrity photo leak 2014” provides more than 2 million results with many online news articles, and even an entire Wikipedia page concerning how a long list of female celebrities experienced non-consensual pornography on a single day, August 31, 2014.
Despite recent media attention to nonconsensual pornography, relatively few academic studies focus on the topic. The few published academic articles regarding nonconsensual pornography concentrate mainly on its legal aspects and legal theories about these cases.
As of April 2016, no published peer-reviewed studies focus exclusively on the experiences of nonconsensual pornography survivors, the toll it takes on their mental health, and how this type of victimization is strikingly similar to sexual assault. The present study is designed to address this gap in the literature by providing a detailed analysis of the mental health issues and coping mechanisms of revenge porn survivors, and the similarities between revenge porn and other forms of sexual victimization.
Methods
The purpose of this qualitative, interview-based study was to understand the experiences of revenge porn survivors and how revenge porn affected their mental health. In-depth semi-structured interviews were conducted with 18 female revenge porn survivors.
Inclusion criteria for this study had two components: (a) Participants had to be 19 years of age or older, and (b) participants had to self-identify as victims or survivors of revenge porn. Some participants referred to themselves solely as “survivors,” some referred to themselves solely as “victims,” and some participants referred to themselves as both “survivors” and “victims” at different points throughout the interviews.
For the purposes of this article, participants will be referred to as “survivors” of revenge porn, which implies a more empowering label rather than giving “victim” labels that imply less agency. Allowing self-identification for inclusion criteria resulted in a broad range of revenge porn cases, ranging from survivors who experienced a widespread web release of naked photos, to photos being shared on a smaller scale (such as with a social circle), and to being threatened or blackmailed with naked photos.
Although there was a broad range of revenge porn cases among participants, common themes and patterns were found.
Results
The findings of this study were organized under two main themes: (a) Mental Health and (b) Coping Mechanisms. Under Mental Health, there are three sub-themes that focus on participants’ mental health issues after victimization: (a) trust issues after revenge porn; (b) PTSD, anxiety, and depression; and (c) self-esteem, confidence, and loss of control. Nearly all participants discussed a general loss of trust in others after being victimized by revenge porn. Many went from being very trusting to rarely trusting anyone after they were betrayed by someone they loved and cared about.
Along with the loss of trust, many participants experienced more severe and disruptive mental health effects, often being given official medical diagnoses of PTSD, anxiety, and depression. Many participants also noticed a change in their self-esteem and confidence after they were victimized. Part of the reason that revenge porn had such a negative effect on participants’ self-esteem and confidence was the loss of control they experienced. The loss of control over one’s body was a particularly violating aspect of revenge porn, similar to sexual assault. Frazier (2003) found that when sexual assault survivors perceived a loss of control, they experienced more distress and trauma. Overall, participants experienced many disruptive mental health issues after victimization that affected their daily lives.
Under Coping Mechanisms, there are two sub-themes that focus on participants’ coping mechanisms to their victimization: (a) negative coping mechanisms and (b) positive coping mechanisms. Participants generally engaged in negative coping mechanisms, such as denial and self-medicating, closer to when they were victimized, and turned to positive coping mechanisms, such as seeking counseling, as time passed. Negative coping mechanisms ranged in behaviors, such as avoidance, denial, excessive drinking of alcohol, and obsessing, over one’s victimization.
In terms of avoidance/denial, participants attempted to avoid thinking about revenge porn and pretended they had not been victimized. Participants also engaged in various positive coping mechanisms to deal with their emotions. The most common were seeing a counselor or therapist, speaking out and helping others, relying on support systems such as family or friends, and focusing on moving on. Counseling was helpful for most participants. Support systems played a huge role in participants’ lives and helped them feel safe after they were victimized. Participants expressed gratitude for their friends and family being there to support and help them in a time of need.
Every woman in this study experienced a horrendous invasion of sexual privacy and personal space, and in most cases at the hands of someone they loved and trusted. This study provided an analysis of the experiences of these survivors and how revenge porn forever changed and affected them. The negative mental health consequences of revenge porn for female survivors are similar in nature to the negative mental health outcomes that rape survivors’ experience.
Rape survivors frequently experience PTSD, anxiety, and depression, all of which participants in this study experienced. In terms of coping mechanisms, participants engaged in avoidance/denial and self-medication in attempt to avoid feelings of despair and distress regarding their victimization. These coping mechanisms are commonly found among rape survivors as well (Boeschen et al., 2001; Campbell, 2008). The characteristics of revenge porn are similar to other sexual crimes (Bloom, 2014).
As mentioned above, participants in the present study experienced a variety of negative mental health effects that sexual assault survivors also experience (Boeschen et al., 2001; Campbell, 2008; Littleton & Henderson, 2009; Monroe et al., 2005). Furthermore, sexual assault survivors report that the loss of control over their bodies and their own sexual agency contributes to their feelings of stress, anxiety, and distress (Frazier, 2003). The loss of control participants in the present study experienced contributed to feelings of anxiety and despair and was a major facet of why revenge porn was so violating.
Overall, findings of this study reveal striking similarities between the mental health effects of sexual assault and revenge porn for survivors, suggesting that revenge porn should indeed be classified as a sexual offense as Bloom (2014) recommended. Therefore, the two primary conclusions to take away from this study include the following: (a) The mental health effects of revenge porn and sexual victimization are similar among victims; and (b) because of these striking similarities, revenge porn should be classified as a sexual offense, treatment strategies for survivors of revenge porn should be similar to effective treatment strategies used for survivors of other forms of sexual victimization, and legislators should consider the similarities between revenge porn and sexual crimes when making legal changes to the status of revenge porn and drafting legislation.
by slamatattorneys | May 24, 2021 | Family Law
Parenting Plans – seek engagement of an expert attorney for common sense approach
A parenting plan is a useful collaborative contract in regard to the parenting arrangements agreed to by parents at the end of a relationship.
In this instance it is also important to note that it is not exclusive to divorce proceedings but can be applied to un-couplings and indeed also to relationships where the parents have never lived together in one household or at all.
In the event that a parenting plan is agreed to it is apposite to note that a parenting plan has greater impact in law when it has been made an order of a competent court than when it has only been registered with the Family Advocate’s Office.
Thus, it is imperative that an expert such as an attorney specializing in family law be engaged to attend to, inter alia, the consultations, drafting of and registration of parenting plans.
Competent, thoughtful and skilled drafting of legal documents is a pre-requisite for any legal agreement that is reduced to writing and these attributes are only acquired through years of knowledge and experience gained in the practice of law.
In cases where a divorce has already been decreed, a parenting plan can still be drafted thereafter and registered with the Family Advocate’s Office following the engagement and attendance of the attorney who is an expert is such matters as this provides the clients with an assurance that the matter will be dealt with professionally.
It is important to comply with the applicable law and standard documentation prescribed by law.
Various terms must be documented in regard to, inter alia, living arrangements, maintenance and parental contact and so forth with the pertinent issues being inter alia:
- where and with whom the child(ren) is(are) to live;
- how responsibility for the maintenance of the child(ren) is to be divided;
- contact arrangements in regard to the child(ren);
- daily routines;
- behavioural aspects;
- provisions regarding mutual respect and co-operation;
- frequency of communications;
- provisions in regard to schooling and religious upbringing of the child(ren).
Most if not all of the material issues in regard to the above will be included the parties settlement agreement, in the event of a divorce, with a parenting plan providing slightly more detail in that regard. Once the plan is finalized and signed by both parents, it becomes a legally binding agreement inter partes.
Upon filing with the Family Advocate’s Office, the agreement will be perused and considered in various respects and recommendations may be made if necessary and the parties can apply for the plan to be made an order of the court.
It is apposite to understand that there is no one type fits all parenting plan or set list of terms in regard to a parenting plan.
Equally important is that the parties to the parenting plan are permitted by law to re-assess the parenting plan from time to time to adapt to changing circumstances and life events.
There is also no need to go overboard in regard to the particularity of the terms of parenting plans such as the brushing of the child(ren)’s hair, clothes to be worn and styling thereof, lacing of shoes, etc etc as these are within the individual parents discretion in terms of their views on life and the child(ren)’s feelings, which are in a constant state of flux.
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by slamatattorneys | May 22, 2021 | Family Law
The Parenting Plan basics – in collaboration with an expert attorney
A parenting plan is modern, useful method of enabling parents who experience difficulties to manage the rearing of their child(ren) post a divorce or uncoupling. This can be achieved with the input of an expert attorney.
Introduced into South African law by the Children’s Act 38 of 2005 (the Act), it originated in many western civilised countries as a means by which these difficulties can be managed towards a non-confrontational mindset and practical solution post the end of a relationship.
A number of pieces of legislation were repealed by the Act when it essentially came into law on 01 June 2007, these include the following:
- the Children’s Act 33 of 1960;
- the Age of Majority Act 57 of 1972;
- the Child Care Act 74 of 1983;
- Children’s Status Act 82 of 1987; as well as
- the Guardianship Act 192 of 1993.
The implementation of certain chapters of the Act was delayed and those sections applicable to parenting plans were promulgated in 2010.
A parenting plan is the subject of regulation in sections 33 to 35 of the Act. While it is not mandatory in divorces or un-couplings, the Act does suggest that it be used when parents are experiencing difficulties in the decision-making pertaining to their children. Usually these difficulties arise or manifest more when parents are at the end of a relationship and when there are social or family related influences which affect their children, such as upbringing of the respective parents, differences in ideology, religion, race, financial means, culture, language and other social factors.
While the Act, in terms of sections 18(1) and (2) provides for the parental rights and responsibilities of both parents regarding the care and contact of the child(ren) and to have input in the major decisions regarding the child(ren)’s future, as well as the pivotal daily decisions pertaining to the care, contact, welfare, and personal development of the child, sometimes it does happen in life that parents do not or can no longer cooperate with each other on all or any of the decisions in regard to their child(ren), such as those like living arrangements, health, education, financial obligations, the involvement of new partners, step-parents, discipline, way of life, after school time, what the child(ren) do in the evenings and so forth. Some of these issues may seem trivial but invariably the aforesaid issues are actually the most frequent and hotly disputed.
The involvement of new partners or step-parents in the decision-making pertaining to a child(ren) is one which has always been contentious and recently the escalation of this issue has reached an unprecedented level and is one which must be considered very carefully when the terms of a parenting plan are considered and implemented.
While the primary objective of the parenting plan is to regulate the how, when, where parents will exercise their respective rights and responsibilities under the changed set of circumstances it is also intended to cater for the ever-changing needs of the minor child(ren) involved by considering the age, maturity and developmental stage of the child(ren), and always applying the best interests of the child principle in each particular case.
While the Act does not compel parents who are in agreement on co-parenting measures to conclude a parenting plan, it does stipulate that, in the event of disagreements and to avoid the risk of further litigation that they first attempt to on a parenting plan, prior to approaching the court for a determination on these rights and responsibilities. This implies meaningful consensus seeking from both parties.
From a purely legal perspective, certain basics would be attributes of a parenting plan. These are, inter alia, the following:
- The plan needs to be customised to a particular family and their circumstances.
- Full participation of both parents will be essential and nuances appreciated.
- Child(ren) participation to a reasonable, logical extent with age appropriateness.
Common sense and the practicalities of modern life remain invaluable guiding principles.
Compromise and the acceptance of the other parent’s wishes and way of life are also attributes of a sensible parenting plan and the methodology to be applied in drafting the terms of the parenting plan in a collaborative manner with an expert attorney.
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