Picture: THINKSTOCK
Picture: THINKSTOCK

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 notice — forms part of South African law‚ according to ENSafrica.

Gardening leave clauses are often inserted into the contracts of 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 using confidential and proprietary information to compete unfairly with their former employers.

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

ENSafrica acted for Vodacom in the case‚ which involved Vodacom’s chief officer: consumer business unit‚ Godfrey Motsa‚ who resigned on December 23 last year to take up the position of MTN’s vice-president of the South and East Africa Region on 1 January this year. Vodacom launched urgent court proceedings to enforce the terms of Mr 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 Mr Motsa had to spend six months on gardening leave until the expiry of his notice period in June. He was also prevented from working for MTN — or any similar competitor — for a further six months in terms of the restraint of trade clause.

The Labour Court heard that Mr 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.