'Gardening leave part of SA law'

The Johannesburg Labour Court has issued a first-of-its-kind judgment, in which it confirmed that so-called gardening leave - when an employee does not come to work while serving the notice period - forms part of South African law.

Gardening leave clauses are often inserted into the contracts of employment of senior employees, with the aim of "sterilising" the confidential and proprietary information held by them, and to prevent them from immediately taking up employment with competitors and utilising confidential and proprietary information to unfairly compete with their former employers.

The employee is entitled to full benefits during the gardening leave period.

Law firm ENSafrica acted for Vodacom in the case, which involved Vodacom's chief officer: consumer business unit, Godfrey Motsa.

He resigned on December 23 2015 to take up the position of MTN's vice-president of the South and East Africa region on January 1.

Vodacom launched urgent court proceedings to enforce the terms of Motsa's contract, which included a six-month notice period and a restraint of trade for a further six months.

Vodacom was successful and the court confirmed that Motsa must spend six months on gardening leave until the expiry of his notice period in June 2016.

He is also prevented from working for MTN - or any similar competitor - for a further six months in terms of the restraint of trade clause.

The Johannesburg Labour Court heard that Motsa had access to significant confidential and proprietary information relating to Vodacom's business and that some of the information had a useful lifespan of more than one year. - TMG Digital

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