Introduction

A non-solicitation of employees clause prevents one party in a commercial contract from poaching or enticing the other party’s employees, typically during the contract term and for a set period afterward. Best practice is to draft the clause narrowly—covering only key employees, for a reasonable duration, and tied to legitimate business interests—because overly broad restrictions risk being unenforceable. In South Africa, courts balance these clauses against constitutional rights to trade and work, enforcing them only if they are reasonable and protect legitimate interests.

What the Clause Is

• Definition: A contractual provision that prohibits one party (e.g., a supplier, client, or former employee) from directly or indirectly recruiting or enticing employees of the other party.
• Purpose: Protects workforce stability, prevents unfair competition, and safeguards investment in training and employee relationships.

Best Practices in Drafting

• Scope: Limit to employees who are critical to the business (e.g., senior staff, key technical experts).
• Duration: Typically 6–12 months post-contract termination; longer periods may be challenged.
• Geographic reach: Avoid blanket restrictions; tailor to regions where the business operates.
• Clarity: Define “solicitation” precisely (e.g., direct job offers, indirect approaches via recruiters).
• Mutuality: In joint ventures or partnerships, consider reciprocal clauses to protect both parties.
• Integration with other covenants: Align with confidentiality and non-compete clauses for consistency.

Legal Implications

• South African context:
  • Enforceable if they protect legitimate business interests (e.g., confidential information, workforce stability).
  • Must not infringe Section 22 of the Constitution, which guarantees freedom of trade, occupation, and profession.
  • Courts apply a reasonableness test: balancing employer protection against employee mobility rights.
• Case law: Courts have upheld clauses where solicitation threatened confidential information or strategic staff, but struck down overly broad restrictions.
• Risks of poor drafting:
  • Overly broad clauses may be void for being against public policy.
  • Ambiguity can lead to disputes over what constitutes “solicitation.”
  • Enforcement often requires urgent interdict proceedings, which can be costly.⁴

Comparison Table

Key Takeaways

• Use non-solicitation clauses to protect legitimate business interests, not to restrict competition unfairly.
• Draft with precision and proportionality—narrow scope, reasonable duration, clear definitions.
• In South Africa, enforceability hinges on reasonableness and compliance with constitutional rights.
• Poorly drafted clauses risk being unenforceable or struck down by courts.

References and Further Information

• https://meyerattorneys.co.za/2025/08/01/non-solicitation-clauses-explained/
• https://www.lawinsider.com/clause/non-solicitation-of-employees
• https://www.lexology.com/library/detail.aspx?g=0ef631a4-2b2b-463c-adcf-79f292f2f09b
• https://legalclarity.org/what-is-a-non-solicitation-clause-and-is-it-enforceable/
• numberanalytics.com. https://www.numberanalytics.com/blog/ultimate-guide-non-solicitation-clauses
• https://www.saflii.org/za/cases/ZAGPPHC/2023/224.pdf

Disclaimer

This practice note is intended for general informational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy of the information provided, laws and regulations may change, and the application of legal principles can vary in specific circumstances. For advice tailored to your particular situation, please consult a qualified legal professional.