C. of
A.(CIV) No.17 of 1995

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

TS'ELISO
TSEHLANA Appellant

and

ATTORNEY
GENERAL 1st Respondent

MINISTER
OF AGRICULTURE 2nd Respondent

HELD AT:

MASERU

CORAM:

STEYN,
J.A.

BROWDE,
J.A.

V.D.
HEEVER, A.J.A.

JUDGMENT

V.D.
HEEVER A.J.A.

The
appellant is an employee of the State within the Department of
Agriculture, having joined the Civil Service as a forester on
1st
August, 1977. On the recommendation of the Ministry, he was granted
study leave during 1987. He attended the University of

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Bangar in
Wales and obtained a B Sc degree in forestry in June of 1980. He was
already a man with a wife and children to support,
and received his
dependants' allowance during the period of leave granted him for
purposes of these studies.

In
October of 1990, he was again granted leave for purposes of studying
further, at the same institution, with a view to obtaining
a M Sc
degree. Before he could do so, he returned home on account of
illness. During his authorised absence he was again paid his

dependants' allowance in respect of his wife and children.

In 1992,
he went to Zambia where he obtained a teaching qualification at the
Technical and Vocational Teachers College. During his
absence, he was
not paid a dependants' allowance. On his return he was promoted
within the Ministry of Agriculture, being appointed
as a lecturer at
the Lesotho Agricultural College at Leribe. He spoke to various
officials within the Ministry about the fact that
he had not been
paid dependants' allowance during his years' absence in Zambia. His
requests bore no fruit. His attorneys wrote,
and received no reply. A
reminder brought forth only that the First Respondent was taking
instructions. Further reminders were
equally unsuccessful, despite
the fact that the Senior

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Personnel
Officer in the Ministry, Mr. Monyane, had over the months promised
that payment would be made soon. He, therefore, approached
the High
Court on

Notice of
Motion for an order -

"(a) ...

(b) Directing Second Respondent and/or officers subordinate to him to
pay ' Applicant's dependants' allowance in respect of the
period from
February 1992 to December 1992"

with
interest at 25% a tempore morae, and costs.

In his
founding affidavit, the appellant set out the pre-history detailed
above, and alleged that he had been granted study leave,
for a third
time, during January of 1992, prior to leaving for Zambia. Mr.
Monyane, referred to above, in an opposing affidavit,
testified that
when appellant's M Sc studies were interrupted and he returned home
on account of illness, the British Council had
conveyed a medical
recommendation that because of his poor health he should not return
to Wales for at least three years, if ever.
When the appellant's
application for study leave was submitted, his immediate superior had
been informed that his application had
been turned down. The
appellant had been informed of this. He nevertheless proceeded to
Zambia. He had been informed that his allowance
had been withheld
because

4

his
absence had been unauthorised. The admitted promise made that he
would be paid his allowance, was in the course of negotiations
with
the Principal Secretary "at the end of which the Ministry
decided against such payment on the basis of applicant's leave

without its authority and permission".

In a
supporting affidavit, Ms Matete, a personnel officer attached to the
Ministry of Agriculture, said that she had personally
informed the
appellant of the decision of the Ministry to refuse his application
for study leave (in) January, 1992, which he ignored.

In his
replying affidavit, the appellant stated that he had been nominated
for study leave by his immediate superior in the Ministry,and
given
his air ticket by the Ministry. He denied that he had been told that
his application had been turned down. He was not recalled
home by his
employers..

In view
of the conflict revealed by the affidavits as to whether he had
obtained study leave or not, the matter was referred for
viva voce
evidence.

The
appellant's oral testimony may be summarised as follows: His
immediate superior, Mr. Senekane, approved his

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application.
The Ministry did not inform him that his pay was being stopped. Hie
wife wrote and told him that she had received his
salary (in
accordance with his written authorization to the Ministry) for only
one month. No disciplinary action was taken against
him on his
return. Instead, he was promoted, being transferred to; lecture at
the Agricultural College, where he is now the vice
principal.

Cross-examination,
however, caused cracks in this story. On his return, he realized that
hie application had gone no. further but
"ended up with Mr.
Senekane". He realized that someone else had to give final
approval. He admitted, by necessary implication,
that his ticket did
not necessarily emanate from the Ministry: there was a project which
was sponsored by a Scandinavian country,
and the appellant had
received the ticket to Zambia from Mr. Tapane, the project
co-ordinator or manager on behalf of the sponsor.
"I signed the
papers, was' given a ticket,nobody stopped me ... The circumstances
led me to believe that everything had been
approved". In
re-examination, he said that he came to tell his immediate superior
Senekane when he left, but Senekane was
not in. The appellant left a
message for him.

He denied
that there were good grounds for refusing him leave - his health was
excellent; but in

6

the
absence of any allegation that the decision to refuse him study leave
was not motivated by belief in the facts at the disposal
of those
empowered to decide on his application, the correctness or otherwise
of those facts is irrelevant and need not detain
us here.

Mr.
Monyane, since retired, gave evidence of the procedure followed in
respect of an application for study leave. A candidate's
Ministry
applies on his behalf to the Public Service. The appellant's
department was told that his application had not been submitted
to
the public service because of available information - presumably,
from Wales and on the subject of the appellant's health. The
travel
ticket given to the appellant did NOT come from the Ministry; though
Monyane could not say what the origin of the ticket
or scholarship
was. He explained why no disciplinary action had been taken against
the appellant for having absented himself from
his employment without
authorisation; the attitude of the Ministry was that the fact that he
had not been paid during that absence,
served as punishment in
itself. That may perhaps constitute an unfair labour practice which
the appellant might be able to attack
in the correct forum on a
number of grounds, inter alia that the basic requisite of equity that
a man should be heard before punishment
is inflicted on him was
ignored. But it is irrelevant to the present enquiry,

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namely,
whether the appellant was indeed given study leave, which is a
prerequisite to his being paid the dependants' allowance
he claims.
The Ministry itself was not unsympathetic, and an application was at
a later stage forwarded to the public service asking
that leave be
granted retrospectively, apparently without success.

Ms Matete
also testified orally. She was told telephonically that leave had
been refused, that a letter would follow, and ordered
to inform the
appellant immediately not to leave the country. The appellant came
into her office that Friday afternoon, his last
day before leaving,
and she gave him the message verbally. There was no time to write him
a letter. His reaction was that he was
already in possession of a
ticket and intended going.

The Court
a quo believed the witnesses Monyane and Matete and, was not guilty
of any misdirections in its assessment of the evidence.
Indeed., the
appellant himself conceded that he merely inferred or accepted that
he had been granted study leave - a matter he
had not in fact
followed up, and an allegation he made in his founding affidavit
which he did not and could not prove. In argument
before us his
counsel urged that the respondents are estopped from alleging that no
study leave had in fact been granted. him,
"regard

8

being had
to the fact that on two occasions he applied for study leave
following the same procedure". This argument has no
merit. The
respondents did nothing to mislead the appellant into acting in a
particular way to his prejudice, more especially did
not itself
provide the appellant with a ticket to Zambia - a factor on which the
appellant initially relied heavily, He himself
was lax in not
following up his application and discovering its fate. Moreover, it
is trite law that estoppel is a weapon of defence,
not one that can
found a cause of action. Cf Pandor's Trustee v. Beatley & Co.
1935 TPD 358.363. 364: Rosen v. Barclays National
Bank. 1984(3) S.A.
974 (W). 983 H - 1.

Although
one has a measure of sympathy for the appellant since the Ministry
was and is only too happy to have him back and benefit
from the
skills he acquired during his unauthorised absence, he could just as
readily, having to all intents and purposes absconded,
have returned
in due course and applied for and received employment with some
private firm.

Where he
founded his claim for dependants' benefits on the allegation that his
application for study leave had been properly granted;
and the court
a quo correctly found that that allegation had not been proved; the
appeal cannot succeed. It is

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accordingly
dismissed, with costs.

LEONORA
VAN DEN HEEVER

ACTING
JUDGE OF APPEAL

I agree :

J.H.
STEYN

JUDGE OF
APPEAL

I agree:

J. BROWDE

JUDGE OF
APPEAL

Delivered
at Maseru this 19th day of January, 1996.