Non-disclosure agreements (NDAs) are a common form of legal agreement in South Africa, used to protect confidential information and trade secrets in various business contexts. In this article, we'll explore the legal requirements and key considerations for NDAs in South Africa, including the purpose of NDAs, the legal requirements for compliance and the potential consequences of breaching NDAs.

What is an NDA?

NDA is an acronym which stands for “non-disclosure agreement” and are also known as confidentiality agreements.

NDA’s are legally enforceable contracts that are used when a person who has sensitive and confidential information shares this information with another a person and it creates an contractual obligation on the person who acquires access to this information not to share or disclose this information to third parties.

In effect, an NDA creates a confidential relationship.

What is the Purpose of an NDA?

Sharing sensitive and confidential information is often necessary and critical if a person or entity is seeking investment or potential partners in a business venture, obtaining new clients or hiring key employees. NDA’s enable parties to disclose such information with the peace of mind that this is some form of legal protection in place when doing so. Such a document helps create and maintain a certain level of trust between the parties.

NDAs are used to protect confidential information and trade secrets in various business contexts, including:

• Employment agreements: NDAs can be used in employment agreements to prevent employees from disclosing confidential information to competitors or other parties.

• Business transactions: NDAs can be used in business transactions, such as mergers and acquisitions, to protect the confidentiality of sensitive information.

• Intellectual property: NDAs can be used to protect the confidentiality of trade secrets and other confidential information related to intellectual property, such as patents and trademarks.

When To Use an NDA?

NDA’s should be used whenever a party discloses any confidential information to potential investors, creditors, employees, advisors, clients, or suppliers—or any other stakeholders that need access to the company's confidential information.

What Information is Covered by an NDA?

The information covered by a NDA can be unlimited, however only confidential and/or proprietary information can be protected by an NDA e.g. information which is in the public domain will not be capable of being covered by an NDA.

Legal Requirements for Compliance

NDAs in South Africa are subject to legal requirements for compliance, including:

• Written agreement: NDAs must be in writing and signed by both parties to be legally binding.

• Specificity: NDAs must be specific about the information being protected and the obligations of the parties involved.

• Reasonableness: NDAs must be reasonable in scope and duration, to ensure that they do not unduly restrict the rights of the parties involved.

Consequences of Breaching NDAs

Breaching an NDA can have significant legal and financial consequences, including:

• Breach of contract: Breaching an NDA can be considered a breach of contract, which can result in financial damages and legal action.

• Loss of reputation: Breaching an NDA can damage the reputation of the party that breached the agreement, and can lead to a loss of trust and business relationships.

• Legal action: Breaching an NDA can result in legal action, including injunctions, damages, and other remedies.

Protecting Confidential Information

To protect confidential information and comply with NDAs, parties can take several steps, including:

• Limiting access: Parties can limit access to confidential information to only those who need to know.

• Implementing security measures: Parties can implement physical and digital security measures to protect confidential information, such as encryption and password protection.

• Monitoring compliance: Parties can monitor compliance with NDAs, and take legal action if a breach occurs.

Conclusion

NDAs are an important legal agreement in South Africa, used to protect confidential information and trade secrets in various business contexts. By understanding the legal requirements and consequences of breaching NDAs, parties can take proactive steps to protect their confidential information and comply with legal obligations.

Barter McKellar has extensive experience with reviewing, negotiating and drafting NDA’s and assisting clients with critical business transactions. If you would like to schedule a consultation with one of our specialist business lawyers, contact us our offices today.