IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO.161/2002
In
the matter between:
DR.
CEPHAS LUMINA APPLICANT
and
UNIVERSITY
OF SWAZILAND RESPONDENT
CORAM
KENNETH
NKAMBULE: JUDGE
DAN
MANGO: MEMBER
GILBERT
NDZINISA: MEMBER
FOR
THE APPLICANT: P.R. DUNSEITH
FOR
THE RESPONDENT: MUSA SIBANDZE
RULING
8/7/02
In
this application, which is brought under a certificate of urgency,
the applicant prays for inter alia:-
(a) Waiving
the usual requirements of the rules of court regarding the notice and
service of applications in view of the urgency.
(b) Directing
the respondent to reimburse the applicant with an amount of E10,132
being the cost of air passages disbursed by the applicant in respect
of repatriation of the applicant's children from Matsapa to Brisbane,
Australia.
(c) Directing
the respondent to pay the applicant baggage allowance in terms of
Clause 13 of the applicant's contract of service from Matsapa to
Brisbane, Australia,
1
(d) Directing
the respondent to pay to the applicant's travel agent, Professional
Travel Services Ltd, the cost of air passages for the plaintiff and
his wife from Matsapa to Brisbane, Australia.
(e) Alternative
to prayers (b) (c) and (d) above, directing the respondent to pay to
the applicant the monetary equivalent in cash of the cost of passages
and baggage allowance for the applicant, his wife and two children
from Matsapa to Lusaka, Zambia.
The
applicant in his founding affidavit deposed as follows:
That
he was employed by the respondent as a lecturer in the department of
law for a period of two years from 1st July 2000 to 30th June 2002.
According
to Annexure 'A' and at clause 8 applicant is entitled to passages at
the end of the contract to his place of domicile and recruitment.
Applicant was recruited in Brisbane, Australia and he regards this
place as his place of domicile.
Applicant
further states that he intends to return to Brisbane Australia. His
children are presently attending school in Australia having left the
country permanently in May 2002. He also pointed out that his wife is
due to recommence her studies at Martin College in Brisbane in the
next semester.
He
stated that he has already incurred expenses in respect of air
passages from Manzini, to Brisbane for the children and avers that he
is entitled to compensation.
On
the other hand the respondent contends that the applicant was
recruited in Australia, but that as per letter of offer which the
applicant signed he is regarded as having been appointed from his
normal place of residence in Lusaka Zambia.
2
The
letter of offer is annexed in applicant's application as annexure
'E5, and it reads in paragraph two;-
"you
will be regarded as having been appointed from your normal place of
residence in Zambia, although your initial passage will be from
Australia ".
Article
8 of the contract reads as follows:-
"8. Passage
at the end of contract
8.01 The
entitlement to passages at the end of contract will be to the
employee's place of domicile and recruitment as declared in the
particulars ".
It
is quite clear from the applicant's affidavit that the place he
regards as his domicile is Brisbane, Australia. He might have been
bom in Lusaka, Zambia but his conduct and what he has deposed to
points outs that he regards Australia as his permanent home.
However,
this court is alive to the fact that applicant, who is also a lawyer
by profession was given an offer by the respondent and he accepted
the offer by appending his signature on the dotted line. He agreed
with the respondent that he was to be regarded as having been
appointed from Zambia.
It
is therefore clear that the applicant's domicile and place of
recruitment for the purposes of this contract is Zambia. If applicant
had a contrary view he would have refused signing Annex 'E'.
After
having reached this conclusion it is also clear that the applicant
does not want to be repatriated to Zambia but wants to go to
Australia where his children are studying and where he has arranged a
place for his wife to further her studies. He also intends to work in
Australia. However, we cannot direct the respondent to pay him
expenses of relocating in Australia. This is because at the time he
signed the contract he was aware that at the end of his contract he
would be repatriated to Zambia and he agreed to that.
Under
circumstances the respondent is ordered to pay to the applicant
monetary equivalent in cash of the cost of passages and baggage
allowance for the applicant, his wife and two children from Matsapha
to Lusaka, Zambia.
3
No
order as to costs.
Members
agree.
KENNETH
NKAMBULE
JUDGE
- INDUSTRIAL COURT
4
No
order as to costs.
Members
agree.
KENNETH
NKAMBULE
JUDGE
- INDUSTRIAL COURT
4
