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UKZN Graduate Explores “Garden Leave”

April 19, 2017

Ms Aamina Danka.

A new concept in South African law, garden leave, has Masters in Business Law graduate Ms Aamina Danka’s heart racing.

When Danka initially explored topical issues in Corporate Law and Tax Law she was not too impressed. ‘The moment I heard of garden leave my heart started pounding furiously with excitement because it is an entirely new concept in South African law and I had the opportunity to explore and examine it,’ she said.

‘Garden leave is involved when an employee gives notice for the termination of their employment, the employer may require the person to spend either all or a part of the notice period not working, thereby allowing confidential information the employee had access to, to become stale and simultaneously the employee is kept out of a competitor’s clutches. The employee remains in the employer’s employ.

‘However, the employee is entitled to remuneration during the garden leave period and must be available to the employer should their assistance be needed,’ said Danka.

Her thesis, which critically examines restraint of trade in the South African employment context, was titled: “A Discussion Surrounding Restraint of Trade in Employment Law”.

Danka said for a restraint of trade clause to be enforceable in a court of law, both employer and employee need to satisfy certain requirements. ‘In February 2016, in a case that was the first of its kind in South African law, the Labour Court in Vodacom (Pty) Ltd v Godfrey Motsa and MTN Group Ltd (2016) 37 ILJ 1241 (LC) set a precedent as it did not only consider the concept of garden leave and its relationship, if any, with a restraint of trade but also upheld the garden leave provision.’

Danka is grateful to all those who supported and assisted her on her journey to completing her masters. ‘I am immensely grateful to the Almighty for granting me the courage and strength to attain a postgraduate degree. I am thankful for and indebted to my mum, without whom not a single of my achievements would have been possible. Her unwavering support, understanding, guidance and advice made getting my undergraduate and postgraduate degrees much easier. I also thank my siblings as they made my year bearable. I am also grateful to my supervisor Mr Darren Subramanien for his guidance, understanding, expertise, timeous feedback and advice.’

Danka hopes to be admitted as an attorney and practice law. During her masters, she co-authored two articles, attended lectures, submitted assessment and wrote examinations. ‘I love challenges and constantly require them, and my masters year provided that. I can now say I enjoyed it all - the sweat, frustration, anger, laughter, happiness, and tears.’

During her spare time, she enjoys hiking, playing and watching sport and participating in conversations which spark debate.

Raylene Captain-Hasthibeer

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