Non-Disclosure Agreement (NDA)

South African legal context (2026 checklist)

A Non-Disclosure Agreement is a contract used to protect confidential information shared during business, employment, investment, tender, consulting, project, partnership, or due-diligence discussions. It can be one-way, where only one party discloses information, or mutual, where both parties exchange confidential information. The agreement should clearly define the confidential information, the permitted purpose, who may access the information, the receiving party’s duties, exclusions from confidentiality, duration of protection, security measures, return or destruction of information, intellectual property ownership, POPIA obligations, remedies for breach, and dispute resolution. In South Africa, confidentiality obligations are mainly enforced through contract law, common-law principles protecting confidential information and trade secrets, and statutory duties where personal information, intellectual property, company information, employment information, or competitive conduct is involved. If the NDA includes restraint of trade, non-solicitation, exclusivity, or competition restrictions, those clauses should be carefully limited so that they protect legitimate interests without being unreasonable or anti-competitive. Where personal information is disclosed, the parties should include POPIA-compliant processing, security, confidentiality, breach-reporting, retention, and deletion obligations. Where employees, contractors, consultants, advisers, or service providers will access confidential information, the NDA should require the receiving party to ensure that those representatives are also bound by suitable confidentiality duties.

• South African common law of contract
• South African common law protection of confidential information and trade secrets
• Protection of Personal Information Act 4 of 2013
• Electronic Communications and Transactions Act 25 of 2002
• Companies Act 71 of 2008
• Copyright Act 98 of 1978
• Trade Marks Act 194 of 1993
• Patents Act 57 of 1978
• Designs Act 195 of 1993
• Competition Act 89 of 1998
• Labour Relations Act 66 of 1995, where the NDA is linked to employment
• Basic Conditions of Employment Act 75 of 1997, where the NDA forms part of employment particulars or workplace duties
• Promotion of Access to Information Act 2 of 2000, where access-to-information rights and confidential records are relevant
• Cybercrimes Act 19 of 2020, where unlawful access, interception, or misuse of data is relevant
• Magna Alloys and Research SA (Pty) Ltd v Ellis 1984 (4) SA 874 (A)
• Coolair Ventilator Co SA (Pty) Ltd v Liebenberg 1967 (1) SA 686 (W)
• Aranda Textile Mills (Pty) Ltd v Hurn and Another 2000 (4) SA 455 (E)
• Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T)
• Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ)
• Meter Systems Holdings Ltd v Venter and Another 1993 (1) SA 409 (W)

Use this as a starting point only. Verify current gazetted amendments, tribunal rules, and SARS / DOL circulars that may apply to your matter.