South Africa:
Trade Secrets
28 February 2019
KISCH IP
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Is there specific legislation that governs trade secrets
or know-how in South Africa? If so, is there a legal definition for
this? Either way, how are trade secrets and know-how treated by the
courts?
South Africa does not have specific legislation governing trade
secrets or know-how, though they can be effectively protected under
South African common law.
Trade secrets can be protected if it can be established that the
information has the necessary quality of confidence, and that
anyone with access to the information owes its owner a duty of
confidence. It is not a requirement that a given recipient enters
into a non-disclosure agreement, though it is indicative of a
relationship of confidence. If a recipient then discloses that
information in breach of that confidence, legal action can be taken
by the owner.
Parties will often enter into agreements when transferring trade
secrets or know-how between each other for any purpose expressly
protecting the use and handling of the information, and setting out
the indemnities in respect of their loss or misuse. It is also
common in such agreements to include an express reference granting
the right to seek an injunction as first recourse in the event that
the information is lost or misused. The courts have been willing to
grant injunctions in recognition of the importance of trade
secrets.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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