There had been no alleged breach of the restraint by the time the application was before me, which means that the remedy sought cannot be based on enforcement of the said restraints. It is trite that an employer seeking to enforce a restraint agreement is required to invoke it and show a breach of it. [See Experian SA (Pty) Ltd v Haynes 2013 (1) SA 135 (GSJ) at para 14]. Rather the applicant submits that this court has jurisdiction to provide the relief sought by virtue of section 77(3) of the BCEA i.e. that:
“The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.”
Rabkin-Naicker J in Concord Employment Contractors (Pty) Ltd v Bidfreight Port Operations (Pty) Ltd (C435/15) [2015] ZALCCT 47; [2015] 10 BLLR 1024; (2015) 36 ILJ 2864 (LC) (26 June 2015) at para [4].