Court name
Industrial Relations Court
Case number
Misc Matter 134 of 2000

Nkhwazi v Lustania Ltd (Misc Matter 134 of 2000) [2001] MWIRC 8 (31 August 2001);

Law report citations
Media neutral citation
[2001] MWIRC 8

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI


MATTER NUMBER
134 OF 2000


BETWEEN:


L.B.
NKHWAZI……………………….…...…….………….APPLICANT


-and-


LUSTANIA
LIMITED………………………….………...RESPONDENT


CORAM: 


M.C.C. MKANDAWIRE,
HON. CHAIRMAN


Mr. M.P. Kamala,
Employer’s panelist


Mr. B. Manda,
Employee’s panelist


Applicant,
present/represented by Mr. Chumachiyenda



a Trade Unionist


Mr. Lora - Official Interpreter

J U D G M E N T


HON M.C.C.
MKANDAWIRE


This matter was
brought by Mr. L.B. Nkhwazi who shall through out this judgment be
referred to as the applicant. The applicant has
sued Lustania Limited
who are the respondent. Through out these proceedings, the applicant
has been represented by Mr. Chumachiyenda
who is a Trade Unionist.
The respondent are represented by Mr. Viva Nyimba a legal
practitioner from Legalwise. This matter commenced
through the
applicant’s Statement of Claim which was issued by this Court on
the 24th of August 2000. In that statement, the applicant
disclosed that the respondent are holding his retirement benefits. He
thus prayed
to this Court that he should be paid the said retirement
benefits. There being no response to the applicant’s statement of
claim,
a default judgment was entered by the Court on the 1st
of November 2000. On the 28th of November 2000; the
Registrar of the Industrial Relations Court set aside the default
judgment. Thereafter, the matter was set
down for a full hearing,
which was scheduled for the 20th of July 2001. On that
day, the applicant plus his representative came. The respondent plus
their representative Mr. Nyimba did not
turn up for hearing. The
Court therefore decided to go ahead to hear the matter because there
was evidence that both the respondent
and their representative were
served with the notice of hearing. As we were about to commence the
hearing, a messenger from Legalwise
popped in with a message from Mr.
Nyimba that he was engaged in a different matter at the High Court.
We were therefore requested
that the case be adjourned to a different
day. We reluctantly adjourned the case to the next day of sitting. We
however put it on
record that if the same transpired on the next day
of sitting, then we would proceed with the matter. Thus fresh notices
of hearing
went to all the parties for a Court sitting on the 31st
August 2001. On this day, the applicant plus their representative
were present again. The respondent plus their representative Mr.
Nyimba were again absent.


There was evidence
that both parties were served with the notices of hearing. We tried
to wait for the respondent plus their representative
up to 10.30 a.m.
Thereafter, we ordered that we proceed hearing the applicant in the
absence of the respondent because there was
no reason given for their
failure. We are aware that both parties have the contact address as
well as the phone numbers of the Court.
If indeed there was any
emergency that had made them fail to turn up, they should certainly
have phoned the Court. We are also mindful
of the fact that both
parties are from within the City of Blantyre and if indeed they were
serious with this case, they should have
informed us as to why they
were absent.


We therefore heard
the evidence of the only witness who is Mr. Nkhwazi. As we were about
to wind up when Mr. Chumachiyenda was causing
a postmortem of the
case, we were informed by the Court marshal that there was Mr. Phiri
an Accountant from the respondent’s company
with again a message
from Mr. Nyimba. The message was that Mr. Nyimba was tied up again in
the High Court hence his failure to come
in the morning. Mr. Phiri
requested that we should sit in the afternoon hours at 2.00 p.m. when
Mr. Nyimba would come. We were greatly
disturbed by this message.
This was not the first time that Mr. Nyimba had behaved thus. We are
certainly not against Counsel appearing
before the High Court. But
certainly, we were very concerned as how Mr. Nyimba wanted events to
suit his cause. Mr. Nyimba knew very
well that this matter was
scheduled for 9.00 a.m.. The respondents were also aware of this fact
through the notice of hearing. None
of them came at the Court at 9.00
a.m.. The message we got came around 11.00 a.m. after we had already
heard all the evidence from
Mr. Nkhwazi. We therefore advised Mr.
Phiri to tell Mr. Nyimba that if he comes at 2.00 p.m., we would tell
him as to what had happened
and why we went ahead to hear the
applicant in his absence. We therefore adjourned the case in Mr.
Phiri’s absence to a date to
be fixed for our decision. When time
struck 2.00 p.m., Mr. Nyimba did not turn up. I have been personally
following up the case with
the Registrar Mr. Msukwa as to whether Mr.
Nyimba has come to enquire about the position, the answer has been
no. We therefore find
it strange that if Mr. Nyimba was really
serious with this matter, why has he not turned up to pursue what had
happened. He sent
word that he would come at 2.00 p.m. which he did
not do.


We shall therefore
narrate the whole evidence from the applicant if one is to appreciate
this case. The applicant told the Court that
he was employed by the
respondent on the 10th of October 1985. His first position
was that of building supervisor and his first assignment was at
Kasungu where the respondent
were constructing the magnificent
Kasungu Teachers Training College. In the year 1989, he was
transferred to the Municipality of
Zomba as a site agent where the
respondent was constructing the Malawi National Examinations Board
(MANEB). From the year 1989 onwards,
the applicant said that he used
to work as a site agent. He worked as a site agent in various
districts where the respondent had
projects. Thus in the year 1994 he
was transferred from Mangochi to Blantyre – Kanjedza. As he was in
Blantyre, the respondent
told him to go and work in Mozambique as a
site agent. The applicant said that at that time, his Malawi passport
had expired. He
tendered the passport in Court as evidence. But the
respondent told him that although he had an expired passport, they
would still
assist him to go to Mozambique. The respondent
accordingly prepared a border pass for the applicant. He travelled to
Mozambique with
a certain Portuguese. On arrival in Mozambique, the
respondent arranged for an identity for the applicant. This identity
he tendered
in Court as App Ex No.1. Later on the respondent arranged
for his passport. He tendered the passport as App Ex 2. The applicant
told
the Court that his salary at that time was USD1,300 per month.
He worked on a site where they were constructing a hospital in Beira.
But as the hospital was gathering shape, Civil Aviation authorities
condemned the site because it was an air route for planes and
as
such, it was recommended that it would be a health hazard to have a
hospital where planes are day in and day out over-flying the
hospital. As a result of this; he was transferred to Pemba. As he was
on that transfer, he requested the respondent to give him a
few weeks
so that he comes to Malawi and sort out a few family problems as all
members of his family were in Malawi. The respondent
allowed him to
come back to Malawi but advised him that he should be ready to go to
Pemba by March 1996. The applicant told the Court
that he happily
came back home and whilst in Malawi, the respondent told him that
there was another project in Malawi and they wanted
him to assist
first before going back to Mozambique. This project was with Malawi
Housing Corporation. As he was in Malawi, since
now he had a
Mozambican passport, he was treated by the authorities in Malawi as a
Mozambican national. He was thus warned by Immigration
officials that
the validity of his stay in Malawi had expired and that all he was
risking now was deportation. As a result of these
threats, the
respondent wrote the department of Immigration requesting for an
extension period for the applicant. The applicant tendered
the letter
as App Ex No. 3. This letter is dated the 3rd of July 1996
and it is worded as follows:


The Immigration
Officer


P.O. Box 331


Blantyre


Dear Sir



This is to certify that Mr. L.B.
Nkhwazi holder of Mozambique Passport No. MOO26933 is an employee of
Lustania Limited in Beira a
branch of Lustania Limited here in
Malawi. Lustania Limited Malawi has some work to be done, in the next
52 weeks, by Mr. Nkhwazi
and we would appreciate if his stay in the
country could be extended.

Yours faithfully


For Lustania Limited


Lewis K.H. Phiri


CHIEF
ACCOUNTANT


Following this
letter, the applicant’s stay was extended for 52 weeks. The
applicant said that he kept on working although sick.
He was given a
project for MK50 million. Due to sickness, he was taken to Malamulo
Hospital for medical attention. After examination
there, the medical
people advised him that he was too old to continue working and
especially at the age of 70. The applicant was
therefore advised to
retire on medical grounds. There is a medical recommendation to
management of Lustania contained in a letter
from the Ministry of
Health, in particular Queen Elizabeth Hospital, Blantyre where the
applicant had gone for guidance. This letter
is dated the 22nd
of June 1999 and is written in the following manner:-


The Personnel
Manager


Lustania Limited


P.O. Box 996


Blantyre


Dear Sir


RE : MR. L.B.
NKHWAZI



I have examined the above-mentioned
person, sixty-nine years of age, who has been ill on and off for a
long time. I have found that
his illness is mainly related to his old
age, as a result he cannot perform his duties efficiently. Therefore,
I recommend that he
should be retired on medical grounds.

Yours faithfully


M. Hawa


Senior Clinical
Officer


For: Hospital
Director


The applicant did
not receive any feedback from the respondent. He therefore lodged the
matter with the Union. The Union wrote the
respondent on 6th
September 1999. Then they made a follow up through a letter dated the
24th of September 1999. It is important to note from the
evidence of the applicant that before he lodged this complaint with
the Union,
the respondent had reduced his salary from USD1,300 per
month to K6,000-00. The applicant personally protested through a
letter dated
13th December 1996. The gist of this letter,
which is App Ex No. 7, was that the applicant was complaining about
the following things:-



(1) House allowance from the time he
came back from Mozambique.


(2) Reduction of his salary from
USD1,300 to K6,000 per month.


(3) Lack of Conditions of Service.


(4) About his 13th cheque
of USD1,300 which Mr. Lapa had promised through a letter that he
should get in 1996.

The applicant
tendered in Court a letter that was issued to him by Lustania Limited
(Malawi). This letter is App Ex 8. It contains
the issue of him to be
paid USD1,300 per month plus a thirteenth cheque and accommodation.
This letter has an official stamp of the
respondent in Mozambique and
is dated the 2nd of April 1995. It is signed by Mr. Lapa


The applicant said
that he brought this letter with him to Malawi as he was coming and
it was addressed to Lustania Limited (Malawi)
now the respondent.
Having discovered that the respondent were not replying to his
concerns referred to in his letter of 13th December 1996,
on 27th February 1997, the applicant sent a reminder which
is App Ex No. 9. He made a copy to Mr. Lapa and also enclosed App Ex
No.8. He
was not answered. Later on, the applicant decided to come to
the office on his own. He was told that they would look into the
issue.
The respondent then raised his salary to MK12,000 per month.
As he was still waiting for the reply the applicant said that his
sickness
continued. He however still pursued his plight with the
respondent through the Union. He went to finally see the respondent’s
Chief
Executive in Blantyre but was literally told not to come back
to the office. This was on 23rd of March 2000. It is his
evidence that since he got employed, he has thus received nothing in
the form of terminal benefits. In a
nutshell, the applicant would
like to be considered on the following:-



(1) Terminal benefits from 1985-2000.


(2) Leave days not taken which are
reflected on his pay slip App Ex No. 10.


(3) Salary reduced from USD1,300 to
MK6,000-00.

As we have already
said, the respondent did not show up and have not even followed up
this case. We have however looked at the nature
of defence, which
they had filed with this Court when they were applying to set aside
the judgment in default. The respondent’s
defence was as follows:-



(1) The applicant was employed by the
respondent as a site foreman in 1994 but later on applicant abandoned
the work without notice
and joined Sofala Construction Company, which
was wound up after few months of his joining it.


(2) The applicant was then employed
by Lustania (Mozambique) Limited in April 1996 at a salary of
USD1,300-00 per month, but based
at applicant’s place of work
whilst waiting to go to Mozambique, but applicant refused to go to
Mozambique at Pemba due to his
personal problems and the contract
with the Mozambican Company was terminated due to his failure to go
to Mozambique.


(3) Later the applicant was
re-employed by the respondent as foreman at a salary of K6,000-00 per
month on 1st September 1996, which was later, raised to
K12,000-00 per month.


(4) The applicant retired on medical
grounds on 22nd March 2000 and he is accordingly entitled
to terminal benefits based on the salary and benefits he received
from the respondent,
which the respondent is prepared to pay to the
applicant.

We have looked at
the evidence of the applicant which evidence is totally
uncontroverted. It is clear from the evidence of the applicant
that
he got employed by the applicant in 1985 and not 1994. It is again
very clear that in 1994, that is when he was posted to go
to Blantyre
from Mangochi. Later on, he was appointed to be a site agent in
Mozambique for the respondent’s construction business.
His Malawian
passport by then had expired. We looked at this passport and indeed
observed that this passport was issued on 18
th
December 1967 and the date of expiry was 18
th
December 1972. The applicant informed the Court that he was taken to
Mozambique using a border pass. Whilst in Mozambique, he was
based in
Beira where the respondent had work. In order to show that he really
worked for the respondent in Mozambique, in particular
in Beira, the
applicant tendered in Court an identification, which is issued in
Portuguese language. It is numero (number) 1334;
in the nome (name)
London B. Nkhwazi, Categoria (category) Tecnico (technical). At the
back of this identification, which is App
Ex No. 1, there is the
official stamp of Lustania Limited, Beira, Mozambique.


We would like to
pause here and look at the purported defence filed by the respondent.
If indeed the applicant was employed in April
1996 by the respondent
and refused to go to Mozambique – Pemba, one wonders how the
applicant was issued with an identification
of Lustania Limited,
Beira, Mozambique. This identity clearly shows that the applicant was
indeed in Mozambique working for the sister
company Lustania Limited,
Beira where he had been sent from Malawi by Lustania Malawi. We also
notice that whilst in Mozambique,
the applicant was issued with a
Mozambican passport and his names changed to Loranco Nkhwazi instead
of London Nkhwazi. This change
was facilitated by the respondent and
we have no doubts that they could have done that. They are indeed
capable of achieving all
this. We further note that in April 1996
when the respondent says that it is when they employed the applicant,
this is in total contradiction
with the letter written by Mr. Lapa,
which is dated the 2nd of April 1995. This letter has
again an official date stamp of Lustania Mozambique – Beira. The
letter was addressed to Mr. V.
Moreira and O.V. Custodi of Lustania
Malawi. It was an advice to these people about the salary of the
applicant, which was USD1,300-00,
and the issue of the thirteenth
cheque and also the issue of accommodation. The contents of this
letter, addressed to officials of
Lustania Limited Malawi, only
confirm the story told by the applicant that he had asked for
permission from the respondent to first
come to Malawi from Beira
before he could proceed to Pemba in Mozambique his next duty station.
In order to buttress up this issue,
the applicant also tendered in
Court the Mozambican passport, which has the date of 3rd
April 1996 the date he crossed the border to Malawi. He was given up
to 2nd July 1996 to be in Malawi since by this time, he
was considered as a Mozambican national. In order to show that the
applicant had
indeed just come to Malawi from Mozambique, the
respondent wrote Immigration in Malawi to have the applicant’s stay
extended here
in Malawi. This was accordingly done. This letter
confirms the story told by the applicant that indeed, he was already
an employee
of the respondent. They could not have been writing
Immigration if the applicant had refused to work in Mozambique. They
were actually
confirming his story.


We therefore finally
observed that the applicant was a truthful person. He had all the
documentation to back up his story. What we
have observed from the
totality of the whole evidence is that the respondent would just like
to avoid meeting a higher liability
in relation to his terminal
benefits and the like. Other wise we are satisfied that his salary
per month was USD1,300-00. This is
the salary which he had been
receiving whilst in Mozambique, and he should have continued
receiving it whilst here in Malawi. Moreover,
the respondent had even
changed the nationality of the applicant, which we find to be
extremely unusual. They have to be accountable
to the Immigration
Department for that. We therefore order that:-


 (a) The
terminal benefits for the applicant having retired in the year 2000
be calculated at a salary of USD1,300-00 per month from
the dated he
started getting that salary when he was posted to Mozambique and when
he came back to Malawi. We say so because his
further stay here in
Malawi was as a result of the respondent having found a project for
the next 52 weeks; which later on coincided
with the recommendation
that he should retire on medical grounds. We however order that from
1985 and before he landed on the job
to Mozambique, the calculations
for his terminal benefits to be based on the salary which was
applicable here in Malawi.


(b) The difference
in salary from USD1,300-00 and MK6,000 and finally MK12,000-00 to be
worked out and that difference to be paid
to the applicant up to the
day of retirement.


(c) The 87 days of
accrued leave be paid to him.


(d) Housing
allowance that was due to him when he came back to Malawi to be paid
to him up to the day of retirement.


All these things to
be inquired into by the Registrar.


The respondent have
the right to appeal to the High Court if dissatisfied but only on
matters of law or jurisdiction.


DELIVERED this
-------- day of September 2001 at Blantyre-Limbe.


Signed:------------------------------------------------------------------


M.C.C. Mkandawire


Signed:------------------------------------------------------------------


Mr. M.P. Kamala,
Employer’s Panelist


Signed:------------------------------------------------------------------


Mr. B. Manda,
Employee’s Panelist