Christopher Whitcutt SC and Dean Whittington move the Labour Court to reconsider Oomph judgment

On 3 February 2021 judgment in the matter of Oomph Out of the Home Media (Pty) Ltd (“Oomph”) v Rory Lawrence Brien and Another [2021] ZAGPJHC 124 was handed down. The matter before the court related to the restraint of trade agreement entered into between Mr Brien and his erstwhile employer, Oomph. In summary the court found that Mr Brien had indeed entered into a restraint of trade agreement with Oomph and that Mr Brien was indeed in breach of his undertakings. By way of amplification of these findings the court specifically notes on the judgment that the challenges to the validity of the restraint are “without merit”.

Having made the findings set out above, the honourable court then makes the following statement which encapsulates the gravamen of the judgment:

For [Mr Brien] to be forced out of a career of choice to start working in a different field at a time when many businesses are closing down, retrenchments and lay-offs being common place and individuals doing everything possible to survive and cope with the health and devastating effects of the covid 19 pandemic, is plainly unreasonable and contrary to public policy and constitutional values. For these reasons given in this judgment I find that the restraint of trade agreement cannot be enforced.

Unsurprisingly the judgment has caused something of a stir in the field of restraints. Following this judgment in the labour court in the matter of Prima v Lemon and Others [2021] ZALCJHB 121, Christopher Whitcutt SC ably assisted by Dean Whittington, both of the Rivonia Group of Advocates, were confronted by reliance on the Oomph judgment in answer to proceedings instituted by an employer to enforce a restraint of trade.

The court in the Prima matter revisited the test set out by the Appellate Division in order to determine the reasonableness or otherwise of an agreement in restraint of trade and the onus relating to this aspect. It was pointed out by counsel for the applicant that considerations of public policy and constitutional values have indeed been considered by Supreme Court of Appeals which has held that public policy requires contracts to be enforced. It was stated by the SCA, in the same judgment, that this approach is consistent with the constitutional values of dignity and autonomy. Accordingly, the SCA held that restraint agreements are not against public policy and should be enforced.

Against these considerations the labour court was not persuaded by the approach adopted by the court in the Oomph matter and declined to follow it with the result that the restraint contended for by the employer was upheld.  

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