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CONTRACT

Contract of employment/collective agreements Sponsorship Restraint of trade Agency. CONTRACT. Lawfulness (not contrary to statute or common law) Contractual capacity Intention to contract Consensus Formalities (if any) Certainty Performance must be possible.

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CONTRACT

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  1. Contract of employment/collective agreements Sponsorship Restraint of trade Agency CONTRACT

  2. Lawfulness (not contrary to statute or common law) Contractual capacity Intention to contract Consensus Formalities (if any) Certainty Performance must be possible Requirements for a valid contract

  3. An agreement in restraint of trade is one which purports to restrain a person from exercising and lawful craft or business at his/her own discretion and in his/her own way  Restraint of trade is valid and enforceable unless enforcement is contrary to public policy Restraint of trade

  4. Specific performance Cancellation Damages, but only patrimonial loss Remedies

  5. Rugby player, agreed to play rugby for remuneration during the 1991 season, but joined another club in February 1991 The Club (Troskie) sought order to compel:      - the player to continue playing for that club      - him not to play for another club during the 1991 season. Troskie en 'n Ander v Van Der Walt 1994 (3) SA 545 (O)

  6. The Court held:      - it would be inappropriate to order specific performance where personal service such as playing rugby must be rendered - where there is no express negative, the court will be reluctant to find such an implied term Troskie cont

  7. Contract provided that Lions would be able to renew the contract if terms offered by another union are matched. Natal Rugby Union (the Sharks) made a very lucrative offer to Venter for 2000 season and Venter accepted. Lions matched the offer in financial terms, but Venter refused to return to Lions. Venter claimed that clause compels him to accept unemployment or to accept employment with a union that he does not want to play for – contrary to public policy. Golden Lions Rugby Union v Venter and Others unreported 2/02/2000)

  8. While Lions matched offer in financial terms, they could not match other terms offered by Sharks, which included training on the beach and swimming in the sea and other special training methods. Had the clause been couched in more restrictive (financial) terms court would have ordered Venter to continue playing for Lions despite Venter’s claim of acrimony. Venter cont

  9. I cannot believe that what had gone before or as a result of any confrontation in these proceedings would disturb the equanimity and the professional approach of Mr Mains as a coach should his relationship with AJ Venter resume. Likewise, AJ Venter being a professional rugby player, I am perfectly confident that he would be able to resume a professional relationship with Mr Mains without being disturbed by any personal matters that had gone before. I consequently do not see the invoking of clause 5.4.2 as a restraint of trade against public policy in any way.” (Swart J) Venter cont

  10. Coetzee's contract with Ajax Cape Town expired. He wished to join Hellenic. Hellenic could not pay the transfer fee demanded by Ajax to obtain clearance certificate. Compensation, normally agreed upon by the two clubs involved. Failing this an arbitrator will make final decision on amount, using a set formula. No player input. Coetzee v Comitis and Others 2001 (1) SA 1254 (C).

  11. Transfer regulations is akin to a restraint of trade provision in a normal commercial contract. Magna Alloys and Research (SA)(Pty) Ltd v Ellis is still good law. A restraint enforceable unless it offends public policy. Public policy has a constitutional flavour. Transfer regulations offend the following constitutional principles: - Dignity        - Right to choose profession freely       - Freedom of movement (Bosman) Transfer regulations = unreasonable restraint of trade. NSL given 6 months to adjust regulations. Coetzee cont

  12. Igesund agreed to act as head coach for Santos for two years. After one year he signed a contract to coach a rival club (Ajax). Santos sought interdict to force Igesund to honour contract. Court a quo refused interdict Santos Professional Football Club (PTY) Ltd v Igesund (2002) 23 ILJ 2001 (C)

  13. Only reason for move is pecuniary Acrimony only as a result of intention to move specific performance in is a primary and not a supplementary remedy, but court has discretion if injured party elects to enforce specific performance, it knows the risk that defaulting party may not return with optimal enthusiasm. Specific performance ordered. Santos cont

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