Non-disclosure agreements (NDAs) have faced widespread criticism in several jurisdictions for their role in silencing victims of workplace harassment.
While countries such as the United States of America (USA), Canada, and Ireland have introduced legislation to regulate the misuse of NDAs, South Africa’s legal framework already provides robust protections against workplace harassment.
Significant debate
Recently, the use of NDAs in harassment has sparked significant global debate, particularly about whether such agreements protect organisations at the expense of complainants’ rights. Zelda Perkins, former personal assistant to Harvey Weinstein, highlighted the plight of silenced employees by establishing the Can’t Buy My Silence campaign in the United Kingdom (UK) to challenge the abuse of NDAs. In response, the UK government announced measures prohibiting employers from using NDAs to silence aggrieved employees.
The proposed reforms will prevent employers from including confidentiality clauses in settlement agreements where misconduct is alleged, thereby ensuring individuals are not legally bound to remain silent about their experiences. This aligns with a broader global shift towards transparency and the protection for victims of workplace abuse.
Several jurisdictions have taken steps to restrict the misuse of NDAs in cases of workplace harassment and discrimination. In the USA, various states have implemented anti-harassment laws regulating NDAs, complemented by the federal Speak Out Act, which bans pre-dispute NDAs.
Kenneth Coster, Hassan Mahlawe and Megan Wilkinson 31 Jul 2025 Similarly, Prince Edward Island in Canada enacted the Non-Disclosure Agreements Act in 2022, which prohibits NDAs designed to conceal allegations of harassment or discrimination, promoting transparency and protecting employees' rights to speak openly about abuse. These examples highlight a global trend towards greater accountability and the prioritisation of victims' rights over institutional secrecy.
South Africa also regularly deals with cases involving harassment, discrimination, and sexual misconduct. While other jurisdictions have introduced legislation to tackle the specific misuse of NDAs, South Africa has not yet enacted reforms of this nature. However, various legal principles and developments provide protections in this space.
Current legal framework governing NDAs in South Africa
NDAs are generally enforceable under South African contract law, provided they are reasonable in scope and duration, and do not violate public policy.
The Labour Relations Act 66 of 1995 (LRA), the Employment Equity Act 55 of 1998 (EEA), and the Protected Disclosures Act 26 of 2000 (PDA) all offer protections to employees who report harassment or discrimination.
While the EEA does not expressly prohibit NDAs, any agreement that silences victims of harassment or discrimination arguably undermines the purpose of the EEA. Section 6 of the EEA prohibits unfair discrimination and harassment. Victims may not be prevented from reporting such conduct to the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Court or Equity Court. If an NDA prevents such reporting, it may be found to be contrary to public policy and therefore unenforceable.
The EEA also imposes a duty on employers to take steps to eliminate harassment. If an NDA is used to cover up harassment rather than resolve it, the employer could remain liable, regardless of the existence of the agreement.
The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Harassment Code), issued under the EEA, aims to eradicate all forms of workplace harassment. It provides a formal mechanism for reporting discrimination or harassment. The Harassment Code also holds employers vicariously liable for employees’ conduct unless they can demonstrate that reasonable steps were taken to prevent and address such behaviour. These provisions arguably prohibit the use of NDAs to silence complainants or avoid accountability.
Section 2(3) of the PDA provides that any clause in a contract of employment or other agreement that seeks to exclude or waive rights under the PDA is void. This includes agreements preventing the institution or continuation of proceedings under the PDA. This statutory override invalidates any NDA (or other contractual term) that seeks to silence whistleblowers.
Notably, the PDA defines “disclosure” broadly as any disclosure of information about the conduct of an employer or employee, made by a person who reasonably believes that the information shows, among other things, unfair discrimination as contemplated in the EEA or the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
Under section 8 of the Occupational Health and Safety Act 85 of 1993 (OHSA), employers are obligated to provide a working environment that is safe and without risk to employees’ health. If employers rely on NDAs to conceal harassment rather than address the underlying issues, they may fail to meet this obligation. As a result, contracts attempting to circumvent these responsibilities may be rendered unenforceable.
While victim-initiated settlements may be permissible, they do not negate an employer’s broader duty to comply with statutory obligations and actively promote a harassment-free workplace.
The LRA protects employees against victimisation and unfair labour practices. In harassment cases, NDAs may be used to prevent or restrict victims from disclosing their experiences. This undermines the right to a safe and fair workplace and may foster impunity. The LRA ensures employees can challenge such practices, thereby safeguarding their rights and supporting a culture of accountability.
Sections 187(1)(d) and (h) of the LRA classify dismissals as automatically unfair if they are linked to the enforcement of workplace rights or if silence leads to constructive dismissal. In the context of NDAs, such agreements may pressure employees into remaining silent about harassment or other misconduct. If the terms of an NDA create an intolerable working environment that results in resignation, it may constitute constructive dismissal.
Nuances and caveats
While South Africa's legal framework theoretically protects harassment victims from NDA misuse, practical enforcement remains challenging. The existing legislation provides comprehensive protections that may render specific anti-NDA reforms unnecessary. However, employers and legal practitioners must understand that NDAs cannot lawfully silence harassment complaints, and victims should be aware of their rights under existing legislation. The focus should be on strengthening enforcement mechanisms rather than creating new laws.
Practical guidance
Employers must carefully review settlement agreements to ensure compliance with statutory obligations under the relevant legislation. Any clauses that prevent employees from reporting harassment or discrimination to regulatory bodies such as the CCMA, Labour Court, or Equity Court should be avoided, as these are likely to be deemed unenforceable and contrary to public policy. Instead, employers should focus on protecting legitimate business interests, such as confidential commercial information, trade secrets, or preventing disparagement, whilst ensuring that such provisions do not silence the core harassment complaint or restrict employees' legal recourse. Crucially, employers must maintain robust harassment prevention and response procedures, as NDAs cannot absolve them of their statutory duty to provide a safe working environment or eliminate workplace harassment.
