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IN THE LABOUR COURT OF SOUTH AFRICA

SITTING IN JOHANNESBURG CASE NO. J236/97

THANDI MASHABA APPLICANT

AND

CUZEN & WOODS RESPONDENT

JUDGEMENT

ZONDO J:

[1] The applicant commenced employment with the respondent on the 6^th January 1997. There seems to be a dispute between the parties as to the status of the applicant’s employment as on that date and thereafter. The respondent says that was a two months’ period of probation during which the contract of employment was terminable on 24 hours notice. The applicant denies this. The respondent also says this two months’ probationary period was intended by the parties to give the respondent an opportunity to assess the applicant so as to decide whether or not to offer her articles of clerkship. The applicant appears to deny this. Although the applicant does not appear to say so in so many words, it would appear, having regard to the pleadings and the pre-trial minute, that she suggests that the parties had already concluded a deal on the issue of articles of clerkship and that what remained to be done in that regard was a formality.

[2] After the applicant’s commencement of employment, she was issued with a manual for the guidance of newly recruited candidate attorneys in the respondent law firm. About the 20^th February 1997 or so the applicant informed the respondent that she was pregnant. There seems to be a dispute of fact about when the applicant “discovered” that she was pregnant. In the statement of facts which the applicant intends to rely upon for her unfair dismissal claim, the applicant has alleged that she found out on the 5^th February 1997 that she was pregnant. Apparently it is common cause that the respondent’s Ms Woods, a partner in the respondent, put it to the applicant, after hearing of her pregnancy, that her failure to disclose the fact of her pregnancy gave her (i.e. Ms Woods) cause to doubt her trustworthiness which was among the considerations pertinent to the issue whether or not the respondent would be willing to enter into articles of clerkship with her. In clause 2.5. of the pre-trial minute signed by the parties on the 10^th September 1997 it is said to be common cause that on the 27^th February 1997 the respondent informed the applicant that the respondent would not be offering her articles of clerkship and terminated her employment and paid her one month’s pay in lieu of a notice of termination.

[3] In a direction contained in a letter from the registrar dated 26^th October 1997,

Brassey A.J. directed the parties to “consider whether it will be advisable to

determine separately the question of whether articles of clerkship produce a

contract of employment within the contemplation of the Labour Relations Act 66

of 1995.”

[4 ] Pursuant to that direction, the parties concluded on the 6th November 1997 an agreement to separate the issues in this matter and they accepted Brassey AJ’s direction, namely that the point in limine be heard first and separately from the merits of the matter. The point in limine was said to be :- “Whether the relationship of principal and candidate attorney under a contract of articles of clerkship is not an ordinary employment relationship and is a sui genesis (sic) statutory relationship goverened by the provisions of the Attorneys Act No. 53 of 1979 and therefore falls outside of the Labour Relations Act 1995, i.e. outside the jurisdiction of the above Honourable Court.” Clause 5 of the agreement signed by the parties on the 6th November says: “If the above Honourable Court finds in favour of the plea as set out in par 2 above the above Honourable Court should dismiss the action together with an appropriate order as to costs. If the above Honourable Court finds against the respondent in respect of the plea as set out in paragraph 2 above the above Honourable Court should direct that the matter be set down for trial on the remainder of the issues.” In paragraph 2 of the pre-trial minute prepared pursuant to a pre-trial conference held on 8 May 1998 the following is said: “It is accepted by the applicant that should the respondent be successful in this specific defence, then this will effectively terminate the applicant’s cause of action without an investigation into the merits of the case.”

[5] Were it not for one more aspect of that agreement which I wish to refer to, it would have been unnecessary for me to quote any further clause of that agreement. That aspect is how the parties described the action brought by the applicant in this matter. Clause 1 of the agreement reads thus:- “the applicant has caused an action to be instituted against the respondent in the above Honourable Court in which it is alleged that the respondent has acted unlawfully by failing to enter into a contract of articles of clerkship with the applicant. This appears from annexure “B” to the applicant’s statement of claim.”

[6] In clause 2 of the agreement of the 6th November 1997 the parties said, “The respondent has denied that any unlawful conduct was committed by it and has pleaded as follows:- “19.1. The relationship of principal attorney and candidate attorney under a contract of articles of clerkship is not, properly construed, an ordinary employment relationship and is indeed a sui generis statutory relationship governed by the provisions of the Attorneys Act No 53 of 1979. 19.2. The decision of an attorney to enter into or not to enter into a contract of articles of clerkship is not a question which is subject to the unfair dismissal jurisdiction of the above Honourable Court.”

[7] What is interesting about clause 1 of that agreement is that both the applicant and the Respondent describe the action which the applicant has instituted as one relating to the respondent’s failure to enter into a contract of articles of clerkship with the applicant. This is interesting because I thought the applicant’s complaint was that of unfair dismissal and not one of allegedly unlawful failure on the respondent’s part to enter into articles of clerkship with her. In presenting the applicant’s case, Mr Gevisser, who appeared for the applicant, also presented it as one of unfair dismissal.

[8] I have repeatedly read and re-read annexure “B” to form 2 which contains a summary of the allegations of fact on which the applicant relies for the relief she seeks. I am at sea as to exactly what the applicant’s case is which she is bringing to this Court. That summary of facts leaves one in doubt whether the applicant’s complaint is that she was not offered articles of clerkship and, therefore, she wants the court to decide whether the respondent was entitled or justified in not offering her articles of clerkship or whether her case is that she was dismissed unfairly and the issue which she asks the Court to decide is whether her dismissal was fair. If one is to say that the applicant’s complaint is about the respondent’s failure to enter into a contract of articles of clerkship with her, it is not clear from annexure “B” what the basis is for the applicant’s complaint about such failure.

[9] Under par 8 of form 2, where the applicant was required to state the legal issues that arise from the facts which she has set out in annexure “B”, she gives the following as the legal issues in the matter:- “-Breach of contract of employment-Automatic unfair dismissal on the basis of s(187)(1)(e)(sic)

-Procedurally unfair dismissal

-Unfair labour practice.”

In par 9 in form 2, where the applicant is required to state the relief she is seeking from this Court, the following is reflected as the relief she is seeking: “s(194)3(sic): Damages / award of compensation to the amount of (24)(sic) months remuneration.”

[10] Sec 186 of the Act defines dismissal in a manner which, it seems to me, leaves no room for the applicant to say that the respondent’s refusal or failure to enter into a contract of articles of clerkship constituted dismissal. Accordingly, to the extent that the claim which the applicant has instituted in these proceedings may be said to be one about the respondent’s failure to enter into a contract of articles of clerkship with her, such dispute would not be a dismissal dispute. In those circumstances the applicant would have to show where the court derives jurisdiction from to deal with a dispute about an attorney’s failure to enter into a contract of articles of clerkship. There is also no indication that the applicant’s claim is founded upon any of the provisions of sec 5(1), (2), (3), or (4) of the Act which deal with the protection of employees and persons seeking employment. As the respondent’s conduct in not entering into a contract of articles of clerkship with the applicant cannot constitute dismissal under the Act, the applicant can only be referring to the termination of her contract of employment on notice when she refers to unfair dismissal in annexure “B” as well as in paragraph 8 of form 2.

[11] The reason why I have dealt with the matter in the manner I have above even though the only issue I have been asked to decide is whether or not a contract of articles of clerkship produces a contract of employment is that, in my view, to do so was necessary for the proper understanding of what the dispute is which the applicant has referred to this Court which in turn is relevant to the question whether or not the Court should agree to pronounce on the point in limine.

SHOULD THE COURT AGREE TO DECIDE THE PRELIMINARY ISSUE?

[12] It will be recalled that the preliminary question which the Court has been asked to decide is whether or not a contract of articles of clerkship produces a contract of employment or whether it produces a sui generis contract (which is not a contract of employment) governed by the Attorneys Act, 1979 (“the Attorneys Act”). Towards the end of the argument presented by Mr Sutherland SC, who appeared for the respondent, and before Mr Gevisser could reply, I asked whether at the time of the applicant’s dismissal, there was a contract of articles of clerkship between the applicant and the respondent which had been registered with the Law Society as required by the Attorneys Act. Mr Sutherland responded that no such contract had been registered. Mr Gevisser subsequently confirmed this. This had not been apparent from the pleadings and the pre-trial minute before the court.

[13] In the light of the fact that no registration of articles of clerkship had taken place, I asked both parties’ counsel why it cannot be said that the preliminary issue the Court was called upon to decide was an academic and abstract issue which did not arise in the case before the Court because the only basis on which the respondent said there was no employment relationship between the parties was one which did not apply to this case.

[14] Mr Sutherland conceded that, until a contract of articles of clerkship was registered with the Law Society in terms of the Attorneys Act, there could not have been a relationship of principal attorney and articled clerk or candidate attorney between the applicant and the respondent and that, therefore, as at the time of the applicant’s dismissal, there was an employment relationship between the applicant and the respondent. To a question from the Bench as to why then the Court should decide the preliminary issue as there was no relationship of principal and candidate attorney, Mr Sutherland submitted that the Court should decide the matter because the parties had agreed that, if the issue was decided in favour of the respondent, that would be the end of the applicant’s case. In this regard he referred me to clause 2 of the pre-trial minute dated the 15^th May 1998 which says, if the respondent is successful on this preliminary issue, the applicant accepted that “ that will effectively terminate the applicant’s cause of action without an investigation into the merits of the case.” In fact an agreement to the same effect had been reached between the parties much earlier than this; hence in par 5 of the pre-trial minute dated 6^th November 1997, the parties agreed that if the court found in favour of the respondent on this point, the Court “should dismiss the action together with an appropriate order as to costs.”

[15] For some time I was inclined to refuse the request that I decide the point in limine. This was because it seemed to me that the preliminary issue was an academic and abstract one in respect of which there was no existing or future dispute between the parties. Courts, including this Court, are not there to decide academic and abstract issues. Courts are there to decide disputes between parties. However, it seems to me that, in so far as the parties have agreed, rightly or wrongly, that a finding by this court in favour of the respondent will bar the applicant from proceeding with her claim on the merits, the Court should deal with the issue and decide it. This Court does so with the greatest reluctance because the issue really does not arise in this case.

[16] Does a contract of articles of clerkship produce a contract of employment?

Turning to this question, Mr Sutherland submitted that a contract of articles of clerkship did not produce a contract of employment. In support of his submission he relied on various provisions of the Attorneys Act as well as certain dicta in certain judgements. The submissions which Mr Sutherland made in support of the respondent’s contention that articles of clerkship did not produce a contract of employment were all based on the fact that the Attorneys Act contains certain provisions which Mr Sutherland submitted placed the relationship between an articled clerk and his/her principal outside the employment relationship.

[17] To decide whether an employment relationship existed in MASA and Others v Minister of Health& Another (1997) 18 (ILJ) LC this Court inter alia had regard to the six factors or guidelines which Joubert J.A. listed in Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 62. The six indicia listed by Joubert J.A. are the following:-

“1. The object of the contract of service is the rendering of personal services by

the employee (locatur operarum) to the employer (conductor operarum). The services or the labour as such is the object of the contract. The object of the contract of work is the performance of a certain specified work or the

production of a certain specified result. It is the product or result of the

labour which is the object of the contract.

2.According to a contract of service the employee (locatur operarum) is at the

beck and call of the employer (conductor operarum) to render his personal

services at the behest of the latter. By way of contrast the conductor operis

stands in a more independent position vis-a-vis the locator operis. The former

is not obliged to perform the work himself or produce the result himself

(unless otherwise agreed upon). He may accordingly avail himself of the

labour or services of other workmen as assistants or employees to perform the

work or to assist him in the performance thereof.

3.Services to be rendered in terms of a contract of service are at the disposal of

the employer who may in his own discretion decide whether or not he wants

to have them rendered. The conductor operis is bound to perform a certain

specified work or produce a certain specified result within the time fixed by

the contract of work or within reasonable time where no time has been

specified.

4.The employee is in terms of the contract of service subordinate to the will of

the employer. He is obliged to obey the lawful commands, orders or

instructions of the employer who has the right of supervising and controlling

him by prescribing to him what work he has to do as well as the manner in

which it has to be done. The conductor operis, however, is on a footing of

equality with the locator operis. The former is bound by his contract of work,

not by the orders of the latter. He is not under the supervision or control of

the locator operis. Nor is he under any obligation to obey any orders of the

locator operis in regard to the manner in which the work is to be performed.

The conductor operis is his own master being in a position of independence

vis-a-vis the locator operis. The work has normally to be completed subject to

the approval of a third party or the locator operis.

5. A contract of service is terminated by the death of the employee whereas the

death of the parties to a contract of work does not necessarily terminate it.

6. A contract of service also terminates on expiration of the period of service

entered into while a contract of work terminates on completion of the

specified work or on production of the specified result.”

[18] Mr Sutherland laid much emphasis on the object of a contract of articles of clerkship. In Smit it was said that the object of a contract of employment is the rendering of personal services. With regard to the object of articles of clerkship, Mr Sutherland relied on judicial dicta to the effect that the object of articles of clerkship is different from that of an employment relationship. He said the object of articles of clerkship is the training of the candidate attorney to enable him to enter the attorneys’ profession. In Ex parte Natal Law Society 1989 (2) SA 461 (N) at 464 C-F it was said: “The object of articles is to provide a clerk with the legal training and experience to carry on his proposed profession of attorney.”

Although the object of a contract of articles of clerkship may, speaking generally, be a

very significant factor in providing a distinction between a contract of one kind and

another of a different kind, its significance must be considered in the light of all other

relevant factors.

[19] Although the primary object of a contract of articles of clerkship is the provision of training and experience necessary to enable the candidate attorney to proceed from articles of clerkship to the profession of attorney, the training and experience are provided mainly through letting the candidate attorney render personal services. In those circumstances it cannot be said that the rendering of personal service is a matter which falls completely outside the object of such a contract. Indeed, in my view, whatever the object of articles of clerkship was originally when it started, in modern times one of the objects of such a contract is the rendering of personal service. I would therefore not agree with any proposition that suggest that the provision of legal training is the only object. Indeed one would only need to ask practising attorneys and candidate attorneys about the object of articles of clerkship. Anyone who is familiar with the side-bar will know that the reality is that many attorneys take on candidate attorneys primarily because they need the services of someone in their firms who will do a lot of the work which the attorney would have had to do himself--- of course after some training.

[20] If you asked a candidate attorney why he/she thought his/her principal had taken him or her on as a candidate attorney, he/she will tell you that his or her principal needed someone to do work for him; it is unlikely that there would be many candidate attorneys who would express the opinion that their principals took them on so as to only give them training. I think most would say all their principals wanted was to give them work, work and nothing else but work. In fact I think they would add that in return for that work their principals pay them peanuts. I also do not think that the provision of legal training and experience as an object of articles is necessarily inconsistent with the object of rendering personal service which is the object of a contract of employment. I therefore do not think that the object of articles of

clerkship as suggested by Mr Sutherland as well as by judicial dicta he relied upon carry as much weight in the distinction between a contract of employment and articles of clerkship as Mr Sutherland sought to attach to it.

Governance of the relationship through Law Societies and over-all supervision of

the High Court

[21] Although the Attorneys Act does contain provisions which govern the relationship between principal attorney and candidate attorney, that alone would not, in my view, be sufficient to justify concluding that the principal--candidate attorney relationship is not that of employer--employee. What is important in regard to whether or not the governance of the principal--candidate attorney relationship by the Attorneys Act is whether or not such of its provisions as govern that relationship are inconsistent with an employer-- employee relationship. After all even professional assistants in law firms---and those are qualified attorneys who are subject to the Attorneys Act---- are also employees in the law firms which employ them.

Analysis of the Provisions of the Attorneys Act

[22] Sec 1 of the Attorneys Act has a definition of both a candidate attorney and articles of clerkship. It defines “articles” or “articles of clerkship” as meaning “any contract in writing under which any person is bound to serve an attorney for a specified period in accordance with this Act.” The words “this Act” refer of course to the Attorneys Act. Candidate attorney is defined as meaning “any person bound to serve under articles of clerkship or to perform community service under a contract of service.” Community service is defined as meaning “any contract in writing under which a candidate attorney, who wishes to perform community service, is bound to serve a principal for a specified period in accordance with this Act.” Court is defined as meaning “any court of a provincial division.”

Provincial division refers to a provincial division of the High Court.

[23] Mr Sutherland submitted that the High Court alone has jurisdiction over the relationship between a candidate attorney and his / her principal (attorney). If that is so, continued Mr Sutherland, it cannot be that the Labour Court also has jurisdiction over the same relationship. He says this is so because sec 157(1) of the Act ensures that the Labour Court has exclusive jurisdiction in respect of those matters which are to be determined by it. In this regard sec 157(1) of the Act says :- “Subject to the Constitution and section 173 and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.”

[24] I have examined the Attorneys Act very carefully. I do not think such powers as it gives to the High Court are sufficient to justify Mr Sutherland’s submission that the High Court exercises jurisdiction “over the relationship” between a candidate attorney and a principal attorney. I say this because a careful examination of those provisions of the Attorneys Act which relate to articles of clerkship reveals that the powers which the High Court is given in relation to the relationship of a candidate attorney and his / her principal are limited to:-

(a) the power of the High Court to grant an order authorising leave of absence from office by a candidate attorney where, in any one year of articles of

clerkship, a candidate attorney’s principal refuses to grant him leave of

absence from office or the power to authorise leave of absence from the

principal’s office on the part of the candidate attorney in excess of 30 days

or in excess of periods which in the aggregate exceed 30 days; [sec7(2)] so

the one instance where the High Court can intervene in a principal-

candidate attorney relationship is where there is some kind of dispute or

disagreement about leave between the two; the second is where the period

of absence from the office required is more than 30 days; in the latter case

no dispute or disagreement need exist between the candidate attorney and

his / her principal; the High Court obtains its power to intervene by virtue

of the period of absence exceeding 30 days. There is nothing in the

Attorneys Act which says a principal attorney and a candidate attorney may

not agree, as is the case in any employment relationship a period of 30 days

or a lesser period as the period of leave for the candidate attorney in any

one year; indeed it is clear from the Attorneys Act that they may do so (see

sec 7(1) in this regard which says, subject to sec 7(2), a candidate attorney

may absent himself from office for any period which does not exceed 30

days in any one year of articles of clerkship or for periods in the aggregate

of 30 days in any one year of service of articles of clerkship if he does so

with the consent of his / her principal.)

(b) the power of the High Court to direct, on good cause, that the articles of

clerkship of a candidate attorney who served such articles in contravention

of sec 9 (1) of the Attorneys Act shall not be void ab initio; [sec9(1)

prohibits a candidate attorney from having a pecuniary interest in the p

practice and service of an attorney or of an organization or institution where he performs community service; it also prohibits him from holding or

occupying any office or engaging in any other business other than that of a

candidate attorney; sec 9(2) says any articles served in contravention of sec

9(1) shall be void ab initio]

(c) the power of the High Court to extend beyond two months of agreement of

cession the period within which the cessionary [in the case of a cession of

articles from one attorney (the cedent) to another (the cessionary)] must

lodge the agreement of cession and supporting affidavits with the Law

Society of the province where the ceded articles will be served.

(d) the power of the High Court, where a candidate attorney had previously

served a period of articles but same were cancelled or abandoned before

completion and the candidate attorney later enters into another contract of

articles of clerkship, to order on good cause and in its discretion that the

period served under the abandoned or cancelled articles of clerkship be

added to the period served under the later contract of articles and that such

order may be subject to such terms and conditions as the High Court may

stipulate; [see sec 11(2) and (3)].

(e) the power of the High Court to permit a person whose service under a

contract of articles of clerkship has been irregular to apply for admission as an attorney in certain circumstances [sec 13(2)];

(f) the power of the High Court to order that any period of articles of clerkship

served before satisfaction of the requirements refered to in sec 13(3) read

with sec 2 of the Attorneys Act be regarded as having been served after the

satisfaction of those requirements; [sec 13(3)];

(g) the power of the High Court to admit as an attorney a person who has been

a candidate attorney if he / she makes application to the High Court for

such admission as an attorney and if he or she satisfies the requirements

stipulated in that Act.

[25] With regard to (a) above it is clear that, in so far as the principal and candidate attorney wish to agree normal leave of absence for the candidate attorney in any year of articles, it is left entirely to them to do so---- I say normal leave of absence because normal leave of absence will in most work situations range from two weeks, three weeks, to one month. For that normal situation the Attorney’s Act does not make any provision interfering with what would be a normal matter between employer and employee. The High Court begins to have a role to play in regard to a candidate attorney’s leave when the principal and the candidate attorney seek to deal with an unusual situation--- that is where absence of leave exceeding 30 days in one year is sought or where the principal refuses to give the candidate attorney any leave at all in any particular year of articles of clerkship.

[26] In my view what the Attorneys Act does is to give certain specific powers to the High Court to deal with certain specified matters. In respect of those specified matters I would be inclined to agree that the Labour Court has no jurisdiction. However, the mere fact that the High Court has jurisdiction in respect of certain specified matters which emanate from the relationship of principal attorney and candidate attorney does not, in my view, necessarily mean that the Labour Court cannot have or does not have jurisdiction in respect of other matters emanating from that relationship. The proper approach is to closely examine the Act as well as the Attorneys Act to determine whether the Labour Court has jurisdiction in respect of a particular matter and to do so with a completely open mind.

[27] There are a number of features in the relationship of principal attorney and candidate attorney which suggest --- very strongly--- that the relationship is that of an employer and employee. It may be helpful to mention some of them here. A candidate attorney will only perform those duties which the principal attorney allows him / her to perform and no other ---- in other words the principal attorney controls what duties the candidate attorney performs; the principal attorney will first train a candidate attorney how certain work is done and thereafter he / she will control the manner in which the candidate attorney does that work.The principal attorney pays remuneration to a candidate attorney usually on a monthly basis. The candidate attorney places the whole of his or her time during office hours at the disposal of the principal attorney. The principal attorney directs what the candidate attorney must do during that time ---maybe even how long the candidate attorney must take to do a particular task.

[28] The provision in the Attorneys Act to the effect that only a person practising the profession of an attorney may engage or retain a candidate attorney is understandable because the main purpose of the principal attorney-- candidate attorney relationship is the training of the latter by the former in the profession of an attorney and to ensure that, by the expiry of the period of articles of clerkship, the candidate attorney has received all the training that the principal attorney can give him / her and he / she is ready to be admitted as an attorney. The provision limiting the number of candidate attorneys that any one attorney may have at any one time is also understandable because, if an attorney were to take too big a number of candidate attorneys, this may adversely affect his ability to provide each one of them with training of the required quality. That may also adversely affect his ability to properly supervise them.

[29] Although such contract of articles of clerkship as an attorney and a potential candidate attorney may enter into is subject to the secretary of the law society concerned finding same in order and subject to the council of that law society having no objection, this is not sufficient to take the relationship out of the employment relationship because, quite clearly, the Law Society in the area where articles of clerkship are sought to be registered has an interest in who gets trained for the profession of an attorney and who trains him or her so as to ensure that only those attorneys who not only qualify to engage candidate attorneys engage them but also that such attorneys are able to provide the required training to future attorneys.

[30] Sec 6(1)(a) gives the principal attorney a right of “direct personal supervision” over the candidate attorney. Once he has the right to appear in courts and tribunals in which his / her principal attorney has the right of appearance, the candidate attorney does not represent himself when he so appears in courts and tribunals but in terms of sec 8(1) of the Attorneys Act, does so “instead of and on behalf of “ his / her

principal. Furthermore sec 8(1) says it is the principal attorney “who shall be

entitled to charge the fees for such appearances as if he or she himself or herself

had appeared....” when his / her candidate attorney appears in court or in a tribunal

“instead of and on behalf of” his / her principal.

[31] That the Attorneys Act envisages that the relationship of principal attorney and candidate attorney is that of employer-- employee is supported by, among others, the use in relation to a candidate attorney of the phrase “... he remains in the employ of the attorney who was his principal” in sec 8(4). That subsection reads: “Any candidate attorney who is entitled to appear as contemplated in subsection (1), shall at the expiry of his articles or contract of service, and provided he remains in the employ of the attorney who was his principal immediately before such expiry, or provided he remains in the service of the law clinic, the Legal Aid Board concerned, as the case may be, remain so entitled until he is admitted as an attorney, but not for longer than six months.” (My underlining.) Furthermore the Attorneys Act uses the words “to serve” or “in the service of” and “to engage” or “engaged” in relation to a candidate attorney and principal attorney in a number of areas and, in my view, the use of those words strongly suggests an employment relationship rather than some other relationship.

[32] Sec 10(1) and (2) deal with the cession of a contract of articles of clerkship from one attorney to another. Again I can see nothing therein which can justifiably be said to be inconsistent with the employer-- employee relationship. In relation to the period when a candidate attorney is still serving his / her principal, sec 10(4)(a) has a reference to a “whole term of service during which the candidate attorney concerned was in his or her service and the date on which the candidate attorney terminated his or her services with him or her” (my underlining). Sec 10(4)(b) refers to the candidate attorney assuming duty with the cessionary after his or her contract of articles has been ceded from his / her principal to another attorney.

[33] An attorney has the right to hire a person to become his or her candidate attorney if he or she is eligible to engage a candidate attorney in terms of the Attorneys Act. Normally if a person has the right to hire, he / she also has the right to fire. In the case of a principal attorney, he / she clearly has the right to hire even though the registration of articles is subject to the council of the law society having no objection to such articles being registered. Once the articles of clerkship have been registered, there is nothing in the Attorneys Act which has taken away the principal attorney’s right to fire the candidate attorney. Instead sec 11 of the Attorneys Act quite clearly does contemplate termination or cancellation of a contract of articles of clerkship. The section is headed: “Termination of articles or contract of service.” Sec 11(1), (2) and (3) of the Attorneys Act provide as follows:-

“(1) If articles of clerkship are or a contract of service is for any reason

cancelled, abandoned or ceded, the principal with whom the

candidate attorney concerned is serving at that time shall forthwith in

writing notify the secretary of the society of such cancellation,

abandonment or cession.

(2) If articles of clerkship have or a contract of service has been cancelled or abandoned before completion thereof, the court may in its

discretion on the application of the person who served under such

articles or contract of service and subject to such conditions as the

court may impose, order that for purposes of this Act, the whole or

such part of the period served under such articles or contract of

service as the court deems fit, be added to any period served by that

person under articles or a contract of service entered into after the

first -mentioned articles were or contract of service was cancelled or

abandoned, and any period so added shall for the purposes of this Act

be deemed to have been served under the last-mentioned articles or

contract of service and continuously with any period served thereunder.

(3) If a person who has served any period under articles of clerkship

which were cancelled or abandoned before completion thereof, has

satisfied all the requirements for a degree refered to in paragraph (a)

or (c) of section 2(1), or the degrees referred to in paragraph

(aA) of that section, or a degree or degrees referred to in paragraph

(aB) or (cA) of that section in respect of which a certification in

accordance with those respective paragraphs has been done, the court

may, on the application of such person and subject to such conditions

as the court may impose, order-----

(a) that, for the purposes of this Act, the whole of the period so

served or such part thereof as the court deems fit to be added

to any period served by such person after he has satisfied such

requirements or became so entitled under articles of clerkship

entered into after the first-mentioned articles were cancelled or

abandoned, and thereafter any period so added shall be

deemed to have been served----

(I) after he or she satisfied such requirements; and

(ii) under the articles entered into after the first-mentioned articles

were cancelled or abandoned and continuoulsy with any period

served thereunder;

(b) if the period served by such person under the first- mentioned articles

of clerkship is equal to or exceeds the period which he or she would, at

the time of the making of the application, be required to serve under

articles of clerkship in terms of this Act, that the period so served be

considered as adequate service under articles for the purposes of this

Act, and thereafter any period so served by such person shall be

deemed to have been served after and under articles entered into after

he or she satisfied such requirements.” (Underlining supplied)

The principal attorney is not anywhere in the Attorneys Act required to seek the leave either of the High Court or the Law Society before he can terminate or cancel the contract of articles. As regards the Law Society all that is required of the principal attorney is to notify the law society in writing.

[34] It is significant that, whereas the Attorneys Act does specifically provide for the intervention of the High Court if a dispute arises between the principal attorney and candidate attorney in respect of leave, it says nothing specifically about what happens if a dispute arises between the principal attorney and the candidate attorney about the termination or cancellation of the contract of articles. Especially because sec 11(1) contemplates a situation where a contract of articles of clerkship or a contract of service “is for any reason cancelled....”, one would have thought that the Attorneys Act would have said something on this. It seems to me that the position is that, as is the case in all other dismissal cases, if the candidate attorneys’ cause of action is one of wrongful dismissal, the High Court has jurisdiction but if his or her cause of action is unfair dismissal, then either the Labour Court or the CCMA has jurisdiction---- depending on the reason for his / her dismissal.

[35] It must be borne in mind that it is not unusual in our law for different courts and or tribunals to enjoy power to deal with disputes arising from the same relationship. Under the Labour Relations Act, 1958 (Act No 28 of 1956) certain disputes emanating from the employment relationship were dealt with by the High Court (civil) while others could be dealt with by the High Court (criminal) and others by the industrial court. A complaint of victimization could be dealt with as an unfair labour practice in which case only the industrial court had jurisdiction in respect of such complaint or it could be dealt with by a Criminal Court as it also constituted a criminal offence. As indicated above while the industrial court could deal with a dismissal dispute if the cause of action was an unfair labour practice, the High Court could deal with a dismissal dispute if the cause of action was wrongful dismissal. The High Court has no jurisdiction in respect of unfair dismissal. It only has jurisdiction in respect of wrongful dismissals.

[36]There is another consideration that militates against concluding that the relationship between a principal attorney and a candidate attorney is not that of an employer and employee as envisaged in the Act. This is based on the definition of employee in sec 213 of the Act. There an employee is defined as meaning:-

“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying, on or

conducting the business of an employer, and “employed” and

“employment” having meanings corresponding to that of employee.”

[37] In my view the definition of employee in sec 213 of the Act is worded in such a wide manner that the relationship between a candidate attorney and his / her principal falls within that definition. Under par (a) of the definition only an independent contractor is excluded. This means that provided a person “works for another person...... and receives or is entitled to receive any remuneration,” and the first-mentioned person is not an independent contractor, such person falls within par (a) of the definition of employee in sec 213. It was not argued by Mr Sutherland that a candidate attorney is an independent contractor. Obviously he could not argue that a candidate attorney is an independent contractor because that is clearly not the case. Once it is accepted that a candidate attorney is not an independent contractor, all that remains is to determine whether or not a candidate attorney does work in the first place and if so whether he or she “works for” his / her principal as contemplated in par (a) of the definition of employee. There can be no doubt that a candidate attorney does not only learn but also works. When he works, he certainly does not work for himself and must be working for somebody. There is no doubt in my mind that a candidate attorney works for his / her principal and that that working for his / her principal falls within the ambit of the phrase “works for another person” in par (a) of the definition of employee in sec 213. Even if a candidate attorney fell outside par (a) of the definition of employee, there is no way it would fall outside par (b) of that definition.

[38] In the light of all the above I conclude that a contract of articles of clerkship does produce an employment relationship contemplated by the Labour Relations Act, 1995

and that the respondent’s objection in limine falls to be dismissed. Having come to

this conclusion, there is a further matter I wish to refer to before I conclude this

judgement. It will be seen from what I have just concluded that in so far as the

applicant’s complaint may be that she was unfairly dismissed, and in so far as she may be alleging that she was dismissed because of her pregnancy, this Court will have

jurisdiction to adjudicate that matter. However, the applicant would be well advised

to properly apply her mind to the issue of what purpose it would serve to pursue court

action for unfair dismissal in this Court in the light of two factors.

[39] The first factor relates to whether or not she does seek to compel the respondent to

offer her articles of clerkship. If she does not seek to do so, of what use would it be

for her to obtain a reinstatement order (assuming she can get one) in circumstances

where the employment relationship which is restored will no longer serve the purpose

for which it was meant in the first place. At any rate it is extremely doubtful that any

court would be competent to make an order compelling the respondent to offer the

applicant or anybody for that matter articles of clerkship. As far as this Court is

concerned, I have already expressed serious doubt that this Court would have

jurisdiction to determine a dispute about whether or not the respondent should or

should not have offered the applicant articles of clerkship. The test to establish

whether this Court has or does not have jurisdiction in respect of a particular matter is,

in my view, that which this Court has laid down in Monyela & Others v Bruce

Jacobs t/a LV Construction (1998) 19 ILJ 75 (LC).

[40] The second factor relates to the fact that apparently the applicant was paid a salary of one month in lieue of notice from 27 February 1998. This is significant if the position is that the applicant’s contract of employment was for two months ending at the end of February and whether or not she was to continue beyond that period depended on whether or not the respondent offered her articles of clerkship. The significance of this lies in the fact that in so far as relief is concerned in case this Court were to find that she was dismissed unfairly, she might have difficulty in proving what financial loss she suffered.

[41] The order I make is therefore the following:-

1. The respondent’s objection in limine is dismissed.

2. Should any of the parties request the Registrar to set the matter down for trial on the merits, the Registrar shall do so and the trial on the merits may be presided over by any judge of this Court.

3. If the matter is proceeded with on the merits, the issue of costs will be dealt

with at the conclusion of the trial .

4. If the matter is not proceeded with on the merits and anyone of the parties

seeks costs and the parties are not able to reach agreement thereon, anyone

of the parties may request the Registrar to set the matter down for argument

on costs before me.

R.M.M.ZONDO

JUDGE: LABOUR COURT OF S.A.

26 JUNE 1998

FOR THE APPLICANT: MR GEVISSER

INSTRUCTED BY: WITS LAW CLINIC

FOR THE RESPONDENT: MR R. SUTHERLAND SC

INSTRUCTED BY: CUZEN & WOODS, ATTORNEYS

DATE OF ARGUMENT: 18 MAY 1998

DATE OF JUDGEMENT: 26 JUNE 1998

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