South Africa has no specific legislation governing trade secrets or know-how, although 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
  • anyone with access to the information owes its owner a duty of confidence.

A given recipient need not enter into a non-disclosure agreement, although it is indicative of a relationship of confidence. If a recipient then discloses that information in breach of that confidence, the owner can take legal action.

Parties will often enter into agreements when transferring trade secrets or know-how between each other for any purpose. These agreements expressly protect the use and handling of information and set out the indemnities in respect of its loss or misuse. Such agreements also commonly include an express reference granting the right to seek an injunction as first recourse if the information is lost or misused. The courts have been willing to grant injunctions in recognition of the importance of trade secrets.

For further information on this topic please contact Kevin Dam at KISCH IP by telephone (+27 113 243 000) or email (kevind@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

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