Penalty Clauses in Restraint of Trade Agreements: The Case of Braddon Mc Cleland


In the Braddon Mc Cleland (Pty) Ltd t/a Network Associates v Calvin Le Roux case, the Eastern Cape High Court grappled with the enforceability of a penalty clause embedded in an employment contract. This clause obligated an employee to compensate the employer with a sum equivalent to 12 months’ salary should they breach their restraint of trade agreement. The case sheds light on the legal intricacies surrounding penalty clauses within restraint of trade agreements and the court’s approach to assessing their validity and enforceability.


Restraint of trade agreements are common contractual provisions designed to protect an employer’s legitimate business interests, such as client relationships, trade secrets, and confidential information, by restricting an employee’s ability to engage in competitive activities post-employment. These agreements typically impose limitations on an employee’s activities, such as working for a competitor or soliciting clients from their former employer, for a specified period and within a defined geographic area.

Penalty clauses, on the other hand, stipulate predetermined damages that an employee must pay in the event of a breach of the restraint of trade agreement. They serve as a deterrent against non-compliance and provide employers with a measure of financial compensation without the need to quantify actual damages incurred.

Court Findings

In the Braddon Mc Cleland case, the court examined the actions of Calvin Le Roux, a former employee who accepted a position with a competitor and subsequently approached clients of his former employer in contravention of the restraint of trade agreement. The crux of the dispute revolved around the enforceability of the penalty clause contained within Le Roux’s employment contract.

The court determined that the penalty clause constituted a contractual provision subject to the provisions of the Conventional Penalties Act 15 of 1962. Under this act, a penalty debtor (in this case, the former employee) has the opportunity to demonstrate to the court that the stipulated penalty is disproportionate to the prejudice suffered by the innocent party (the employer). However, the burden of proof rests with the debtor to establish prima facie that the penalty is excessive relative to the harm incurred.

In evaluating Le Roux’s argument against the enforceability of the penalty clause, the court considered the nature of his actions and the extent of the harm inflicted upon the employer. It was established that Le Roux, in his capacity as a customer relations manager, had cultivated personal relationships with the employer’s clients and exploited these relationships to solicit business for his new employer, thereby undermining the interests of his former employer.


In light of the evidence presented, the court ruled in favour of the employer, Braddon Mc Cleland (Pty) Ltd t/a Network Associates. It held that Le Roux’s actions constituted a breach of the restraint of trade agreement and warranted the imposition of the penalty stipulated in the employment contract. The court ordered Le Roux to pay R122,100, along with interest and costs, as per the terms of the penalty clause.


The Braddon Mc Cleland case underscores the importance of penalty clauses in restraint of trade agreements as a means of safeguarding employers’ interests and deterring employees from engaging in competitive activities post-employment. While restraint of trade agreements are legally enforceable, the quantification of damages for breaches can be challenging, making penalty clauses a practical solution for employers seeking recourse against non-compliant employees.

However, the enforceability of penalty clauses is contingent upon their compliance with the Conventional Penalties Act and their proportionality to the harm suffered by the innocent party. In this case, the court upheld the validity of the penalty clause, emphasizing the egregious nature of Le Roux’s actions and the need to protect the employer’s trade connections.

Ultimately, the Braddon Mc Cleland case serves as a cautionary tale for employees contemplating breaches of restraint of trade agreements and highlights the legal ramifications of such actions. Employers, meanwhile, are reminded of the importance of drafting clear and enforceable contractual provisions to safeguard their business interests in an increasingly competitive marketplace.

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