Moonlighting and Side Hustles

Moonlighting and Side Hustles (South Africa)

Definition of “Moonlighting and Side Hustles.” Moonlighting and Side Hustles refers to any secondary work undertaken by an employee in addition to their primary employment—whether paid or unpaid, as a second job, freelance gig, or a self-run business. In South African labour law, Moonlighting and Side Hustles implicate the common-law duty of fidelity, statutory working-time limits under the BCEA, safety obligations under OHSA, fair-discipline standards in the LRA, and contractual restraints of trade and confidentiality. This article explains how to design policies and contracts that allow legitimate outside work while protecting employers from conflicts, fatigue, and unfair competition.

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What Moonlighting and Side Hustles Mean in South African Labour Law

At common law, employees owe a duty of good faith to act in their employer’s interests. Moonlighting and Side Hustles are not automatically unlawful, but they become problematic when they create a conflict of interest side business, siphon clients, misuse confidential information, or cause performance or safety risks. Because the BCEA and LRA protect working time, fairness and safe work, employers must regulate Moonlighting and Side Hustles via contract terms, policy, and case-by-case approvals rather than a blanket ban.

Building Contracts that Govern Moonlighting and Side Hustles

Your starting point is a concise moonlighting clause employment contract: a disclosure-and-approval requirement, objective criteria for approval (no conflict, no capacity loss, no IP risk), a right to revoke approval on reasonable grounds, and express links to confidentiality, IP and performance standards. Mirror this in the handbook as a secondary employment policy South Africa with examples (e.g., tutoring vs. selling to the same client base), and set renewal timelines so approvals don’t run on indefinitely.

Duty of Fidelity, Confidential Information and IP Ownership

Moonlighting and Side Hustles often intersect with trade secrets (pricing, client lists, methods). South African law protects confidential information even without a formal NDA if it has commercial value and is treated as secret. Policies should remind employees that developing similar products or poaching clients may infringe confidential information and IP ownership and justify urgent interdicts. For side projects built after-hours, allocate ownership clearly: employer-owned if created in the course and scope or using proprietary tools; otherwise, the default may vest in the author but must never incorporate the employer’s IP.

Restraint of Trade: Enforceability in Practice

Restraints are prima facie enforceable in South Africa if reasonable between the parties and in the public interest (the Magna Alloys rule). Courts, including Reddy v Siemens, routinely uphold tailored restraints protecting customer connections, trade secrets and workforce stability. When Moonlighting and Side Hustles overlap with your market, targeted, time-limited restraints are more likely to meet the restraint of trade enforceability employee standard than broad, industry-wide prohibitions. Always pair restraints with clear definitions of proprietary interests and reasonable geography/duration.

BCEA Working-Time Compliance for Moonlighting and Side Hustles

The BCEA caps ordinary hours and regulates overtime, rest, Sunday and night work. If an employee takes on a second job, you still must avoid excessive scheduling. Track fatigue indicators and keep accurate records to manage BCEA working time concurrent jobs risk, particularly when your shift patterns plus a gig economy role push total hours into unsafe territory. Averaging (s 12) and compressed weeks (s 11) can legitimately flex hours but do not license chronic after-hours work.

OHSA Fatigue Management for Moonlighting and Side Hustles

OHSA s 8 requires employers to provide and maintain a working environment that is safe, which includes managing fatigue as a hazard. A practical Moonlighting and Side Hustles programme includes fatigue questionnaires, rest-window rules (e.g., minimum 10–12 hours between shifts for safety-critical roles), and coaching around sleep and commuting after night shifts. Document your assessments—especially in logistics, construction and mining—because OHSA fatigue and safety risk often sits at the heart of incident investigations.

Fair Discipline for Moonlighting and Side Hustles

Schedule 8 of the LRA (Code of Good Practice: Dismissal) requires substantive and procedural fairness. Build a clear disciplinary code for outside work that distinguishes neutral side gigs from misconduct: (1) undisclosed conflicted work, (2) use of company time, tools or secrets, (3) direct competition or client diversion, and (4) safety or performance harm. Use progressive discipline and proportional sanctions; dismissal is typically reserved for dishonesty, repeated violations, or serious competitive harm proven with evidence.

Public-Sector and Regulated Roles: Special Rules

Public servants and certain regulated professions (auditors, healthcare practitioners, some financial services roles) face additional permission regimes. If you operate in these sectors, your Moonlighting and Side Hustles policy should reference the relevant statute or professional code and require written proof of external-work approval as a condition of employment.

Approval Workflow and Policy Template for Moonlighting and Side Hustles

A defensible process protects both sides: (1) employee disclosures; (2) conflict screening against client lists and upcoming projects; (3) capacity and fatigue review; (4) conditions (no client contact, limits on hours, quarterly review); (5) renewal cadence (e.g., annually); (6) revocation where objective risks emerge. Store approvals centrally and train managers to spot early warning signs (missed KPIs, overlapping hours, unusual VPN logs) without intrusive surveillance.

Cross-Border, Remote Work and Conflicts of Law

Remote side gigs may trigger tax, immigration and export-control issues. If the side business operates abroad, think about data-transfer rules (POPIA), confidentiality of client data, and whether the second role could create permanent establishment risk for anyone. In approval letters for Moonlighting and Side Hustles, bar the use of your systems for cross-border side gigs and require the employee to warrant compliance with foreign permits and taxes.

FAQ — Moonlighting and Side Hustles

1) Can we impose a blanket ban on Moonlighting and Side Hustles?
A total ban is often unreasonable and hard to enforce. A disclosure-and-approval regime based on legitimate interests (confidentiality, capacity, safety and conflict) is more defensible and easier to administer.

2) Must employees disclose every side gig, even volunteer work?
If your policy requires disclosure, yes—at least a short form describing the nature, hours and any overlap with clients. You can exempt clearly non-commercial volunteer work, but reserve a right to review if conflicts emerge.

3) Does refusing approval amount to unfair labour practice?
Not if you can show objective grounds—conflict with active clients, measurable capacity risk, or safety concerns. Record your reasons and offer an appeal path to reduce perceptions of arbitrariness.

4) When does a side business become direct competition?
If it offers similar goods/services to the same customer base or uses your unique know-how. Even if clients initiate contact, solicitation can be inferred where employees leverage inside knowledge or relationships.

5) Are restraints of trade enforceable against side hustles after hours?
Yes, when they are reasonable in duration, geography and scope and protect real proprietary interests. Courts (e.g., Magna Alloys, Reddy v Siemens) often enforce narrow restraints tied to trade secrets or customer connections.

6) Can an employee use company laptops or email for a side gig?
No. Your policy should ban use of assets for Moonlighting and Side Hustles and emphasise that metadata is monitored for security and compliance (in line with POPIA notices).

7) How do we handle fatigue from a second job?
Use risk-based conditions (maximum weekly hours, mandatory rest windows, no side work within X hours before a safety shift). For incident-prone roles, require self-reporting of side-work schedules.

8) Do we owe overtime for the second job?
You owe overtime only for hours worked for you. Still, you must schedule safely and lawfully and avoid normalising excessive total hours that increase your liability.

9) How do IP rules apply to apps or content built after hours?
If built in the course and scope or using your materials, you likely own it. Otherwise, the employee owns it. Your contracts must avoid ambiguity and prohibit the inclusion of your confidential code or data.

10) Is non-disclosure about a side gig misconduct?
Yes, where disclosure is required and the non-disclosure conceals conflict or harm. Prove the rule, knowledge, and the risk or actual damage, and follow a fair process.

11) What if the side hustle improves the employee’s skills?
Approve with conditions. Capture learning benefits in development plans—but keep conflicts, confidentiality and fatigue controls intact.

12) Can we revoke previously granted approval?
Yes, on objective grounds (new client overlap, performance decline, safety incident). Provide reasons in writing and allow representations before the decision takes effect.

13) How should we treat public-sector moonlighting?
Public-sector employment often requires prior written permission. Make proof of that permission a condition in the approval letter and confirm it periodically.

14) Are gig-economy driving or delivery roles risky?
Potentially—late-night driving after long shifts raises fatigue and road-safety concerns. Apply stricter rest rules and consider barring such side work before or after safety-critical duties.

15) What evidence wins moonlighting disputes?
Time stamps, client communications, overlapping invoices, system-usage logs, and witness statements. Keep IPT (investigation, proportionality, transparency) as your mantra.

References

Useful Links

• Department of Employment and Labour – BCEA resources: Authoritative summaries and forms to align rosters and overtime approvals with the BCEA.

• Commission for Conciliation, Mediation and Arbitration (CCMA): Guidance on unfair labour practices and disciplinary procedures, useful when side-work cases escalate.

• International Labour Organization – Working Time & Fatigue: Research-backed measures to reduce fatigue risk in multiple-job scenarios.

For queries regarding the validity of employment contracts click here.

For information about employment rights in the entertainment industry click here.

For information about COIDA claims click here.

For general enforcement of employment rights click here.

For more information about rights in relation to remuneration click here.

For more information about rights during retrenchment click here.

For more information about the fairness of dismissals in absentia click here.

For more information about enforcing restraints of trade click here.

For more information about foreign nationals and working permits click here.

For more information about enforcing a CCMA award click here.

For more information about the right to parental leave click here.

For information about workplace bullying ad harassment click here.

For information about maternity leave click here.

For information about constructive dismissal click here.

For information about unfair labour practices related to training click here,

For queries about legal representation in disciplinary hearings click here.

If your query relates to how UIF is claimed click here.

If your query relates to a matter where the employee in question is a domestic worker click here

If your query relates to whether or not a party is an employee click here.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE).

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