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Non-Circumvention Agreement

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Create a non-circumvention agreement that prevents a party from bypassing another party after receiving introductions, contacts, opportunities, leads, suppliers, investors, clients, or confidential deal information.

A Non-Circumvention Agreement is used where one party introduces another party to a business opportunity, client, supplier, investor, funder, buyer, seller, broker, agent, tender opportunity, or transaction and wants protection against being bypassed. It is commonly used in referrals, brokerage, deal sourcing, procurement opportunities, investor introductions, property transactions, distribution discussions, agency arrangements, joint ventures, consortiums, supplier introductions, mergers and acquisitions discussions, and confidential commercial negotiations.

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South African legal context (2026 checklist)

A non-circumvention clause should be clear, reasonable, and limited to legitimate business protection. It should identify the protected contacts, protected opportunity, prohibited conduct, duration, territory, compensation, and remedies. If drafted too broadly, it may be challenged as an unreasonable restraint of trade or contrary to public policy. The agreement should also avoid competition-law risks, especially where competitors share sensitive information or agree not to deal with certain parties. Where contact details or personal information are shared, POPIA obligations should be included.

  • South African common law of contract
  • Law of delict, where unlawful interference or misuse of confidential information causes loss
  • Constitution of the Republic of South Africa, 1996, section 22: Freedom of trade, occupation and profession
  • Competition Act 89 of 1998
  • Protection of Personal Information Act 4 of 2013
  • Electronic Communications and Transactions Act 25 of 2002
  • Companies Act 71 of 2008, where a company is a party and authority to contract is relevant
  • Consumer Protection Act 68 of 2008, where the arrangement involves consumers or consumer-facing services
  • Property Practitioners Act 22 of 2019, where the arrangement relates to estate agency or property-practitioner services
  • Financial Advisory and Intermediary Services Act 37 of 2002, where the introduction relates to financial services or advice
  • National Credit Act 34 of 2005, where the referral or introduction relates to credit agreements
  • Copyright Act 98 of 1978, where documents, proposals, designs, databases, or deal materials are protected
  • Prescription Act 68 of 1969
  • Arbitration Act 42 of 1965, where arbitration is selected as the dispute-resolution mechanism
  • Conventional Penalties Act 15 of 1962, where a penalty or liquidated damages clause is included
  • Magna Alloys and Research (SA) (Pty) Ltd v Ellis [1984] ZASCA 116
  • Reddy v Siemens Telecommunications (Pty) Ltd [2006] ZASCA 135
  • Barkhuizen v Napier 2007 (5) SA 323 (CC)
  • Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others [2020] ZACC 13

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

Typical questions we'll walk you through

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What is the full legal name of the party giving the undertaking?
What is the full legal name of the party giving the undertaking?
What is the full legal name of the party receiving protection?
What is the full legal name of the party receiving protection?
Is the agreement one-way or mutual?
Is the agreement one-way or mutual?
What business opportunity, transaction, project, investment, tender, supply arrangement, sale, referral, or introduction does the agreement relate to?
What business opportunity, transaction, project, investment, tender, supply arrangement, sale, referral, or introduction does the agreement relate to?
What contacts, clients, suppliers, investors, funders, brokers, agents, buyers, sellers, or business partners will be protected?
What contacts, clients, suppliers, investors, funders, brokers, agents, buyers, sellers, or business partners will be protected?
Will the protected contacts be listed in a schedule?
Will the protected contacts be listed in a schedule?
What conduct is prohibited: direct contact, indirect contact, bypassing, dealing through another person, using information, or concluding a transaction without consent?
What conduct is prohibited: direct contact, indirect contact, bypassing, dealing through another person, using information, or concluding a transaction without consent?
Will the restriction apply to related companies, directors, employees, agents, consultants, subcontractors, nominees, family members, or associates?
Will the restriction apply to related companies, directors, employees, agents, consultants, subcontractors, nominees, family members, or associates?
How long will the non-circumvention period last?
How long will the non-circumvention period last?
Will the restriction apply in South Africa only or internationally?
Will the restriction apply in South Africa only or internationally?
What fee, commission, referral fee, success fee, profit share, or compensation must be paid if a deal is concluded?
What fee, commission, referral fee, success fee, profit share, or compensation must be paid if a deal is concluded?
When does the protected party become entitled to payment?
When does the protected party become entitled to payment?
Will the agreement include confidentiality obligations?
Will the agreement include confidentiality obligations?
Will the agreement include non-solicitation or restraint-of-trade wording?
Will the agreement include non-solicitation or restraint-of-trade wording?
What information must be treated as confidential?
What information must be treated as confidential?
Will personal information or contact details be shared?
Will personal information or contact details be shared?
May a party contact protected contacts with written consent?
May a party contact protected contacts with written consent?
Are any existing relationships excluded from the restriction?
Are any existing relationships excluded from the restriction?
Are public-domain contacts or independently known contacts excluded?
Are public-domain contacts or independently known contacts excluded?
What evidence will prove that an introduction was made?
What evidence will prove that an introduction was made?
What remedies apply if the agreement is breached: interdict, damages, commission, accounting, legal costs, or specific performance?
What remedies apply if the agreement is breached: interdict, damages, commission, accounting, legal costs, or specific performance?
Will the agreement include a penalty or liquidated damages clause?
Will the agreement include a penalty or liquidated damages clause?
How will disputes be resolved?
How will disputes be resolved?
Which law will govern the agreement?
Which law will govern the agreement?
Who will sign the agreement on behalf of each party?
Who will sign the agreement on behalf of each party?

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