6.5.

2 Vagueness

Where a clause in an agreement in restraint of trade regarding the area of applicability of the restraint is attacked
on the ground that it is too vaguely expressed, the court will have regard to the usual precepts applied when
considering clauses in contracts which are said to be void for vagueness. These were summed up by Nienaber JA in
CTP Ltd v Argus Holdings Ltd 128 when he said, commenting on the finding in the court a quo that the terms
"regional newspapers" and "local newspapers" in the agreement were too vague for enforcement because the line
between the regional and the local could not be determined:
With respect I disagree. Viewed in vacuo the precise line between the concepts 'regional' and 'local' is doubtless difficult
to define. But does that make the restraint clauses void for vagueness? Three points need to be made. One, the words in
a contract must not be interpreted in the abstract and out of context (cf Swart en 'n Ander v Cape Fabrix (Pty) Ltd
1979 1 SA 195 (A) at 202C). Two, a restraint which in general terms may be unduly wide or imprecise can be trimmed to
fit the common understanding in perceptions of the parties in the light of the circumstances prevailing at the time of its
enforcement (cf Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 4 SA 874 (A) at 896A­E, 898D). Three, a
conclusion of invalidity will only be reached as a last resort (cf Haviland Estates (Pty) Ltd and Another v McMaster
1969 2 SA 312 (A) at 337H; Lewis v Oneate (Pty) Ltd and Another 1992 4 SA 811 (A) at 819E­J).129

[Page 6­32]

Applying these principles, it has been held that a clause in a restraint agreement stipulating that "the employee will
not directly or indirectly work in opposition with the employer for a period of 12 months after termination of work
within a 50km radius" was not void for vagueness by reason of a failure to mention a point from which the 50km
radius was to be measured.130

In that case the court held that ". . . the inference is inescapable that it was the intention of these parties that
the centre of the 50km radius mentioned in clause 13 was the clinic at which the respondents were working when
they resigned. In my view the approach that I have taken is in conformity with what I may term the common sense
approach adopted in similar but not identical circumstances in Turner Morris (Pty) Ltd v Riddell".131

It might also, in particular circumstances and depending on the wording of the agreement in question, be
possible to infer a tacit term of the agreement in question so as to avoid striking it down for vagueness. Such a tacit
term would be one which denotes "an unexpressed provision of the contract which derives from the common
intention of the parties, as inferred by the court from the express terms of the contract and the surrounding
circumstances." The inference of such a tacit term would be permissible and necessary if all the circumstances
warranted it in law and if it assisted in ensuring the efficacy of the restraint agreement and the contract of
employment with which it was associated.132

The period of restraint should, for all practical reasons, not be longer than is necessary to enable the applicant to
place a new salesperson in the field in order to enable him or her to become acquainted with the products and the
customers and to make it clear to the latter that he or she is now the person with whom to deal on behalf of the
applicant.133

A restraint which is stated to be indefinite as to its time of operation will not necessarily be held to be
unreasonable for that reason alone.134 This is [Page 6­33] particularly so where, in the sale of goodwill, the
restriction as to area is considered to be reasonable.135 Similarly, a restraint which does not stipulate any
particular area will not necessarily be held to be unreasonable and unenforceable.136

Where the restraint in question is sought to be enforced or applied over an area where the applicant does not
trade and therefore has no interest which the law might protect, it will again be held to be unreasonable and
therefore unenforceable.137 This is what happened in Petre & Madco Ltd v Saunderson­Kasner.138 In that case the
applicant sought to restrain an ex­employee from being employed in an area in which there was no evidence that
he had ever set foot. The restraint was held, not surprisingly, on this ground alone, to be unreasonable and
therefore unenforceable.

In Mathewson's Micro Finances BK v Lombard 139 the court declined to hold that a restraint for an indefinite period
was invalid. Instead, it enforced a restraint for a one­year period and furthermore cut down an area of 300km
radius to one of only 100km radius.140

A further factor affecting the reasonableness or otherwise of a restraint, where the area or ambit of the restraint
is in question, is whether it is per se unreasonable and oppressive within the context of the case.141

Whilst not decisive in every case, a factor at least to be weighed by the court is an acknowledgment by the ex­
employee in the restraint sought to [Page 6­34] be enforced that the restraint is reasonable as to subject matter,
area and duration.142

Footnotes
128 1995 4 SA 774 (A).
129 At 787E­G. See also De Beer v Keyser 2002 1 SA 827 (SCA), para 13 and Namibian Minerals Corporation Ltd v
Benguela Concessions Ltd 1997 2 SA 548 (A) 561G­H.
130 Maritha Bergh NO v Bianca van der Vyver unreported ECD case no. 1123/10 (Plasket J) paras 23­24. In this case, the
court was able to determine the point in question from other facts adduced by the applicant.
131 Maritha Bergh's case above, para 29. See also Carthew­Gabriel v Fox and Carney (Pvt) Ltd 1978 1 SA 598 (RA).
132 Maritha Bergh' s c a s e (fn 131 a b o v e ) , p a r a 3 3 a n d Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial
Administration 1974 3 SA 506 (A) 531H.
133 Den Braven SA (Pty) Ltd v Pillay 2008 6 SA 229 (D) para 55 and Longfields Trading CC v Bradfield and Another
unreported case no. 10605/11 (KZNHC) Seegobin J para 23.
134 A restraint for an indefinite period was upheld in CTP Ltd v Argus Holdings Ltd 1995 4 SA 774 (A): See p 4­14 above
for a full discussion of this case, which was curious in that this restraint between the two companies was upheld,
despite the fact there was no recognisable protectable interest covered by either of the reciprocal restraints in
question, save for their mutual interest in not facing competition from the other in the area of business excluded in
each restraint. In Lifeguards Africa (Pty) Ltd v Raubenheimer 2006 5 SA 364 (D) the court enforced a restraint the
time and geographical ambits of which were completely undefined. These aspects were not even discussed by the
parties. It was held that it was reasonable to enforce the restraint at least to the extent of preventing the defendant
from supplying lifeguards to two major clients "poached" from the plaintiff after the defendant had left the plaintiff's
service. The correctness of this decision is questionable.
135 S e e Kin v Sharneck 1959 3 SA 534 (E) 536A­D; Weinberg v Mervis 1953 3 SA 863 (C) 870; Wohlman v Buron
1970 2 SA 760 (C) 763F; Connors Brothers Ltd v Connors [1940] 4 All ER 179 (PC) 195.
136 This was the case in Hawkwind CC v Goddard 2010 JDR 1519 (ECP). The court nevertheless acceded to the applicant's
request to restrain the respondent from dealing with or contacting a number of brokers in the Port Elizabeth area
specified in the order eventually handed down. Such an outcome must, however, be regarded as exceptional. In the
normal course of events a failure to stipulate an area of operation for a restraint will be fatal as to its enforceability.
137 In Baroque Medical (Pty) Ltd v Medtronic Africa (Pty) Ltd 2014 JDR 0758 (GSJ) the second respondent had only been
operative in the Pretoria, Nelspruit and Limpopo areas. The applicant sought enforcement over the whole Republic.
The court held that this factor alone rendered the restraint unreasonable and unenforceable. (para 42).
138 1984 3 SA 850 (W) 859C­D.
139 [2004] 2 All SA 422 (NC).
140 431j­436d.
141 Sunshine Records (Pty) Ltd v Frohling 1990 4 SA 782 (A); Forwarding African Transport Services CC t/a FATS v Manica
Africa (Pty) Ltd [2004] 4 All SA 527 (D) 535b. See also Vital Administration CC v Irenco (Pty) Ltd [2004] 4 All SA 354
(T) 363d­h. On clauses "in terrorem" in restraint provisions see Ch 6.6 p 6­38 below.
142 Experian South Africa v Haynes and Another 2013 1 SA 135 (GSJ) para 57. But such an acknowledgement can never
be decisive: see Ch 6.3.2.1 above p 6­23.