Lionel Arestide-Mangani

ARSLIO001
CML4607F ASSIGNMENT
25 MAY 2020

DECLARATION:

1. I know that plagiarism is wrong. Plagiarism is to use another’s work and to pretend
that it is one’s own.
2. Except where indicated explicitly and/or in footnotes, this assignment is my own
work.
3. I have not allowed anyone to copy my work with the intention of passing it off as
his or her own work.

1 5 2 1 1 1 8
Insert your Peoplesoft Student number Date: 25/05/2020

Part A:
1.a The parties involved in the dispute are Godfrey Motsa (the first responded) and
Vodacom (PTY) LTD.
1.b Godfrey Motsa had his contract of employment terminated. He was also interdicted
and restrained from engaging in, associating with and being employed by MTN
Group and any of its affiliates. Godfrey was also supposed to pay all legal fees
incurred by the applicant. He was also interdicted and restrained from disclosing any
confidential information of the applicant.
1.c The submissions are as follows: The point of dispute is on whether or not Motsa is
subject to both the contractual notice period as well as the restraint. Vodacom (PTY)
LTD contends that Motsa is required to serve his notice period of six months without
being required to work, after which the restraint will become operative. Motsa on the
other hand contends that he was relieved of any obligation of a notice after his
resignation since his termination was immediate.
1.d The issues that had to be decided by the court were the contractual notice and

2.1 A garden leave refers to a period of time in which a former employee, after
terminating his/ her contract of employment is not allowed to associated themselves,
affiliated or be employed by their previous employers competitors or companies
operating in the same field. The company will pay the former employee to remain at
home until a time that the inside knowledge he has about the company is considered
to be outdated. This is done so as to protect the former employer’s trade secrets to
allow for fair completion in the industry.

3.1 The restraint of trade agreement is a period of time during which the employee is not
to seek employment of associate themselves with competitors. This is very similar to
a garden leave with the difference being in a garden leave the employee is rendered
economically in active until the end of the period agreed or negotiated. In a restraint
of trade, the employee is not completely inactive as dictated by the agreed terms in the
restraint. Courts have tended to be more flexible when it comes to garden leaves as
compared to the restraint of trade. In some cases there is no clear relationship between
the two and will have those both enforced unless the court acknowledges that the
leave its self is substantially too long for the employee to be inactive. In such cases
the court will decline any further protection to the employer. If the contract of
employment has stated that the employee is subject to both the restraint of trade and
garden leave, if the length of time is such that it is reasonable and will not cause the
employee enough harm, then it will be enforced. If the court considers that the period
of time for which the employer is entitled to protection ends whilst the employee is on
garden leave, it will enforce the garden leave provision for that particular period and
will decline any post termination restriction. This is because the court has deemed that
the employer has received enough protection he is entitled to. The labour court has
decided to take the approach of considering whether the amount of time the responded
is out of the market. Thus any amount of time the employee was made to be inactive
prior to the termination of his contract is also considered.
 4.1 The first responded Godfrey Motsa

5.1 The outcome is as follows: Godfrey Motsa had hi contract terminated. He was to
serve the restrain from 1 July 2016 to 31 December 2016 during which he was not to
seek employment from, associated with MTN holdings and all their subsidiaries. He
was also not allowed to consult with as well as being involved with any affiliate
within Southern African and West African region.

Part B
Section 1
1. Jafta responded to a job advertisement by Ezemvelo KZN Wildlife and was offered a
position by Ezemvelo. He received a job offer on the 13 of December 2006. On the
28th of December, his laptop malfunctioned but he managed to send a response on 29
December 2006 at 7:51 pm. On the same date He received a text from Human
Resources Officer saying he must respond to the offer. He replied saying he replied in
the affirmative in the email. The Human resources manager denies the word
affirmative in the SMS. Ezemvelo deny receiving the email.

2.a The contents of the SMS were to be analysed to see if they meet common law
acceptance of a contract. Under the common law, the first requirement for an
acceptance of an offer is that it must be clear, unequivocal and unambiguous. The
major question was did the SMS contain the word affirmative. Phakathi's SMS, to
which Jafta was responding, urged Jafta to confirm that he would start on 1 February
2007.Jafta's reply "to the affirmative" was a direct response to Phakathi and Mkhize's
enquiry. Acceptance of the starting date was implicitly acceptance of the offer. Jafta's
SMS was therefore an unequivocal acceptance of the offer. Jafta also managed to send
his offer on time. Since he was given by the end of December and he managed to send
the SMS in the late hours of 29 December, he met the deadline.

2.b Since Phakathi initiated communication by SMS, Jafta reciprocated in the same mode.
Also he was responding to the most critical issue, which was if he was able to make
the given start date. Also according to the Electronic Communication and Transaction
Act, Time and place of dispatch of data message, unless otherwise agreed between the
originator and the addressee, the dispatch of a data message occurs when it enters an
information system outside the control of the originator or of the person who sent the
data message on behalf of the originator. SMS is considered a data message even
though it is not explicitly stated in the Act. Hence an SMS was deemed an appropriate
way to conclude a contract.

3. Yes it applies to all electronic contracts so long as the data message is sent and
received through electronic means
Section 2
Ethics in the field of engineering is crucial to the day to day operations. The fact that we
interact with people and the environment on a day to day basis requires us to look after the
environment as well as ensuring the safety of the people we work with and those around us.
Engineering code of conduct requires us to be Competent in what we do. Meaning we should
only undertake work that our qualification has allows us. This not only protects us as
individuals but also those around us since one performing a task they are competent at allows
us to follow the proper safety protocols for the particular field. We are also required to
display integrity, by doing our tasks diligently and honestly as well as performing our tasks
without and corruption or dishonest deeds that may inconvenience those we work with.