He gave
evidence before the court relating how the dismissal came about. At
the close of the applicant's case, the 1st
an application for absolution from the instance. The applicant
opposed the application and thus the court must now make a ruling
 The evidence
led before the court revealed that the applicant first entered into
a contract of Clerkship with Mr. Elvis M. Maziya, an attorney of the
High Court of Swaziland on the 11th
 On the 20th
the said contract or Articles of Clerkship was ceded to the 1st
duly accepted the cession.
 From the date
that the contract was entered into, the period of service was
supposed to end on the 11th
The applicant however did not stop serving in the offices of the 1sl
continued until the 02nd
April 2003 when
he was dismissed.
 The details
of the events that led to the dismissal of the applicant are not
necessary for the purposes of this ruling. The court will deal with
the details when writing the judgement at the end of the trial.
 In support of
the application for absolution the 1st
submitted that the applicant has failed to establish that he was an
employee to whom Section 35 of the Employment Act, 1980 applied.
 He argued
that the relationship between the parties was guided by statute, to
wit, The Legal Practitioners Act No.15 of 1964. He submitted that
the relationship was for one year and had expired on the 11th
applicant argued to the contrary that he was an employee to whom
section 35 of the Employment Act applied. He argued that although
the contract of Clerkship had expired on the 11th
February 2003, he
however remained in the employ of the 1st
he was dismissed on the 2nd
submitted therteven after the lapse of the one year period of
serving the articles, the Principal, that is, the 1st
continued to give him instructions and he continued to carry out
those instructions. The evidence showed that even on the day of the
dismissal, the applicant was in process of carrying out instructions
issued to him by the 1st
The court is
therefore faced with the task of making a decision whether or not
the applicant was an employee of the 1st
the court finds that he was, cadit
The ruling is
important not only to the present applicant, but also to the legal
profession as a whole.
KUNENE 1979 -1981 SLR 79 AT p. 80)
It is not in
dispute that the relationship between the parties was that of
articled clerk and Principal. In terms of section 2 of the Legal
clerk" means a person duly bound to serve under articles of
clerkship. Further "articles or articles of clerkship
means:-"Contract in writing whereby a person is duly bound to
serve an attorney for a specified period in terms of this Act."
argued that such a contract was a contract sui
and not a contract of employment, and consequently not subject to
the provisions of the labour laws, in particular the Employment Act.
We do not agree
with Mr. Mdladla's submissions. From the definition of the word
articles of clerkship, it is clear that it is a contract of service.
The articled clerk is bound to serve the Principal for a specified
In terms of the
contract, the clerk is bound to promptly execute all lawful
instructions from his Principal. The Principal is in turn entitled
to summarily dismiss the clerk if he fails to carry out the
instructions. This right of the principal is however subject to any
right that the clerk may have in law.
The rendering of
personal service is one of the six hallmarks of the contract of
employment pointed out in the case of SMIT
COMPENSATION COMMISSIONER 1979 (1) S.A. A.51 (A).
Further, in the
case of MASHABA
V. CUZEN & WOODS (1998) 19
court had occasion to deal with a similar question, that is, whether
articles of clerkship constitute a contract of employment. The court
there found that the relationship between a Principal and a
candidate attorney is an employment relationship. Zondo J. pointed
out as follows at page 1493:-
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."
The learned judge
accordingly made a finding that article of clerkship constituted a
contract of employment and therefore subject to the Labour Relations
Act of 1955. Our Industrial Relations Act defines an employee as a
person who works for pay or other remuneration under a contract of
service or any other arrangement involving control. Our Employment
Act defines a contract of employment as a contract of service,
apprenticeship or traineeship whether it is express or implied.
It is therefore
clear from the definitions above that the relationship between the
parties in this case was that of employer and employee. The fact
that the contract was entered into in terms of the Legal
Act, did not change the fact that it was a contract of employment in
terms of which the applicant rendered his service to the 1st
was under the control and supervision of the 1st
The next question
is; what happened after the period of one year, and what was the
relationship of the parties thereafter before the applicant could
write the examinations?
Clearly after the
specified period of one year, the articles of clerkship lapsed. .The
applicant ceased to be an articled clerk. He was no longer bound to
serve under the articles. The reality however is that the applicant
continued and remained in the service of the 1st
therefore presumed to have tacitly extended the service of the
applicant. The applicant was no longer an articled clerk, but was
allowed to continue to render his services to the Vst respondent.
continued to be paid a salary, and he continued to carry out the
instructions given to him by the 1st
already pointed out, on the date of his dismissal, the applicant was
in the course of his duty carrying out the 1st
instructions. The 1st
not happy about the way that the applicant had carried out some
instructions given to him and he dismissed him.
supported his submissions that the applicant was not an employee to
whom section 35 applied with the case of
MAHLALELA & 15 OTHERS v.
SUGAR CORPORATION CASE NO. 239/99 (I.C.).
In that case the
respondent had also made an application for absolution form the
instance on a similar ground that the applicants were not employees
to whom section 35 applied. The application was upheld in that, case
as the court found that the applicants, who were seasonal workers,
had riot signed contracts of re-engagement for the new harvesting
The above case is
however clearly distinguishable from the present one. In the present
case the applicant had signed the one-year contract and was allowed
to carry on working even after the lapse of the agreed period.
Mr. Mdladla also
argued that the articles of clerkship having lapsed on the 11th
the applicant having been dismissed on the 2nd
April 2003 had
not finished a period of three months' probation and was therefore
not an employee to whom section 35 applied.
 There is no
provision in the Employment Act that a probationary period shall be
three months. The Act only provides that probationary period shall
not exceed three months, except for supervisory, technical or
confidential work. A probation period therefore may be one week, two
weeks or one month or any period depending on the agreement of the
parties. The question however does not arise in this case the court
having found that articles of clerkship constitute a contract of
employment and that there was a tacit agreement that the applicant
continues to render his service to the 1st
the one year period.
 Taking into
account all the above, it follows that the application must be
dismissed, and that is the order that the court makes.
respondents, jointly and severally to pay the costs.
trial date to be fixed in court.
 The members