In a supposed bid to safeguard their proprietary interests, some employers have, over the years, opted to include ‘restraint of trade’ clauses in the employment contracts entered into with their employees. In a nutshell, a restraint of trade clause, is a contractual term which limits a party’s freedom to engage in a particular trade or activity, for a stipulated time frame, especially after the termination of a contract. A simple example of a restraint of trade clause, is that of a term which is included in a motor vehicle mechanic’s employment contract, which states that if his contract of employment is terminated, he is not permitted to start his own mechanical repairs business or to be employed by another mechanical repairs company, in Bulawayo, for five years. In turn, when his contract is terminated, he is restricted from making a living through the skill he has acquired and mastered over the years.

Concerns have been raised by legal scholars and learned colleagues relating to the extent of legality and enforceability of restraint of trade clauses which are couched in contracts of employment, as well as the discretion which the court has to refuse to enforce a normally valid clause, on the grounds of it being contrary or against public policy. Public policy, in essence is a standard or principle of society; often unwritten. One must keep in mind, the conflict which such restraint of trade clauses cause between the freedom to contract, as well as each person’s freedom of profession, trade and occupation, as encapsulated in Section 64 of the Constitution of Zimbabwe.

In the landmark case, Magna Alloys and Research (SA) Pty Ltd v Ellis (384/82) [1984] ZASC 116, the South African courts presented a position which has been adopted by Zimbabwean Courts. It was held, in this case, that the restraints of trade clauses are in fact valid unless they are, in that specific case, so unreasonable and contrary to public policy. The onus to prove the unreasonableness of the clause, resting on the person attempting to escape it. However, with the introduction of the Constitution, the debate of enforceability has remerged, stemming from the need to find a balance between constitutional right to trade and associate freely and fairness in trade and contracts.

The case, Basson v Chilwan (332/1991) ZASCA 61, presented a ‘test’ to determine the reasonableness of a restraint of trade clause. The questions to be asked to make such a determination, are as follows; .