On the 13th of February McLarens OFF Road Racing presented itself for round one of the GXCC race series at Bronkhorstspruit.
The riders were all a little nervous especially the novices Barbara, Adel and JohnJack. The team sponsored by McLarens Attorneys was looking good with two McLarens Gazebos (Thank you Gary Nilson) , new shirts, bikes freshly branded and our ace pit boss Russell Campbell winner of national titles in four separate decades.
On arrival the race venue was buzzing with with anticipation and excitement. What was in store from champion racer now turned race director Louwrens Mahoney organizer of the new GXCC series. One thing was for sure, expectations were high from the man with an Irish name from an Afrikaans background, who was determined not to disappoint.
This year there was a new format for the start, hands on head feet on the ground engine running. Interesting to say the least with some spectacular failures off the line. Yours truly was unhappy as I fluffed the start, but managed to get back up to second with some hard racing with in the first three kilometers. Mark Davis our seasoned master started from the second row and drove around the chaos into a good position. Unfortunately Mark retired after two laps with mechanical failure.
Zack da Silva had a great day completing eight or nine laps, two of which he rode with a flat front tyre. At the end there was no doubt that he had given his all and had nothing left to offer.
The writer, Barbara, Adel, JohnJack completed six laps, a good day for the team.
Special mention to Russell Campbell our pit boss and the pit crew supporters Mario Da Silva, Roger Pieroni, Johan Botha
Our ace photog Craig Barendsen will have the race pics up early next week
All in all a good day with a special word of thanks to Louwrens Mahoney who exceeded our expectations.
McLarens is pleased to announce that it will be sponsoring McLarens OFF Road racing for the 2016 race season
The race team will take part in the GXCC race series hosted by race director Louwrens Mahoney.
Our team is supported by Russell Campbell Racing and Dirt and Trail Magazine.
Our first race of the season will be on Saturday the 13th of February at Bronkhorstspruit.
The Team consists of nine members.
McLarens will publish free to download images of all the competitors in the GXCC series.
We would like to take the opportunity to wish the team well for the season
The Prevention of Organised Crime Act 121 of 1998 (POCA) is a statute which aims at preventing organised crime in South Africa. Section 38, 48, 50, and section 1 gives a person the right to apply for certain property to be preserved (kept in a safe place) and then forfeited to the state if such property is either:
- an instrumentality of an offence;
- the proceeds of unlawful activities; or;
- property associated with terrorist or related activities.If a person believes that property is an instrumentality of an offence, the proceeds of unlawful activities, or property associated with terrorist or related activities, they must prove these elements on a balance of probabilities. If either of these elements are not proven then the provisions of POCA will not apply and the property cannot be forfeited to the state.
Recently McLarens were involved in an asset forfeiture application brought by the National Director of Public Prosecutions (the NDPP) against one of its client’s, Kalmar Industries, in Port Elizabeth where the test of POCA was applied.
When deciding on the issue the court looked at the provisions of Section 1 of POCA which defines an instrumentality of an offence as “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere”.
The court also looked at other cases one of which was The National Director of Public Prosecutions v Carolus 1999 (2) SACR 27 (C) wherein it was held that “property would only qualify as an instrumentality where it has been used as a means or instrument in the commission of an offence, or where it is otherwise involved in the commission of the offence”. In the present matter the property concerned was a lifting platform which was used to repair equipment in the Port Elizabeth Harbour.
The NDPP alleged that the lifting platform had been stolen by Kalmar and was therefore the instrumentality of an offence. The court applied the test in Section 38 of POCA and found that the lifting platform could not have been the instrumentality of an offence and as such the requirements of POCA had not been met and the property could not be forfeited to the state.
The application for a forfeiture order was dismissed and costs were awarded against the National Director of Public Prosecutions.
Read the KalmarJudgement
Over the past 12 months the Labour court has seen a vast increase in restraint of trade cases as opposed to the High court where these matters would normally be dealt with. The Basic Conditions of Employment Act (The BCEA) gives the Labour court 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 (Section 77(3) of the BCEA). Even though the Labour court is in itself a more equity driven court, the principles of restraints of trade have not changed, and restraints must always be seen as serious and should not be considered unenforceable.
- What is a restraint of trade?
A restraint of trade is an agreement between an employer and employee which sets out that if the employee leaves the employer, the employee will not become employed or associated with a competitor of the employer within a specified area and for a specified time. The restraint of trade will commence at the date of termination of the employee’s employment with the employer or on a date agreed between the parties.
- How does one determine if a restraint of trade is enforceable or not?
A party seeking to enforce a restraint of trade will have to prove the existence of the restraint of trade agreement and also show that it has been breached – ie. that the employee signed a restraint of trade and has since left the employers employ and has become employed or associated with a competitor. A restraint of trade will only be enforceable if the employer can show that it has a ‘protectable interest’ which is legally recognised and deserving of protection. This would be two fold – 1. that the employee in question was privy to confidential information whilst employed which could be used by a competitor to gain an unfair advantage in the marketplace, and/or 2. That the employee in question developed relationships with customers, potential customers, suppliers, and other related parties that go to make up what is known as a trade connection of a business, which could be used to gain an unfair advantage in the marketplace. The employer must then show that the employee has or will use the confidential information or trade connections since leaving the employer to gain an unfair advantage and has therefore breached his/her restraint of trade undertakings and should be restrained.
- How long and how wide are restraints of trade?
Restraints of trade will only be enforced for a period of time which the court deems reasonable and will only be enforced in areas which need to be protected. An example would be a restraint of trade which is enforced in the whole of the republic of South Africa for a period of one year because the employee in question operated as a sales manager and serviced clients throughout South Africa. In this case the party enforcing the restraint would argue that to mend or maintain its relationships with these clients would take up to 12 months and therefore a 12 months restraint is reasonable. Another example would be a restraint of trade which is enforced only in the province of Gauteng or Johannesburg for a period of 6 months as the former employee only operated in Gauteng and had limited dealings with customers. Another example would be a restraint which is not enforced at all by the court despite being in existence due to the fact that the former employee was not privy to any confidential information and did not have any trade connections.
Every situation is different and whether or not a restraint of trade is enforced entirely, whether the restraint of trade is reduced, or whether the restraint of trade is not enforced at all, is all dependant on the circumstances of each matter. Parties are advised to seek proper legal advice whenever an issue regarding a restraint of trade arises.