Mos­ito, Thet­sane fight gets nasty

Lesotho Times - - News - Tefo Tefo

COURT of Ap­peal Pres­i­dent, Jus­tice Kananelo Mos­ito, has filed an ur­gent ap­pli­ca­tion be­fore the Con­sti­tu­tional Court seek­ing an or­der to block a crim­i­nal case, of al­legedly fil­ing tax re­turns late, against him from pro­ceed­ing.

The bizarre case has been raised against the head of the high­est court in the land by the Di­rec­tor of Public Pros­e­cu­tions (DPP), Leaba Thet­sane (King’s Coun­sel). Ad­vo­cate Thet­sane ac­cuses Jus­tice Mos­ito of al­legedly fil­ing his tax re­turn forms late to the Le­sotho Rev­enue Au­thor­ity (LRA) for the past 19 years.

The charges are mainly in re­spect of Jus­tice Mos­ito’s law firm, KEM Cham­bers, which he opened in 1996. The DPP al­leges that Jus­tice Mos­ito has vi­o­lated pro­vi­sions of the In­come Tax Act of 1993 by fail­ing to file tax re­turns timeously for a pe­riod of 19 years.

The un­prece­dented case against a sit­ting Court of Ap­peal Pres­i­dent ex­em­pli­fies a de­ter­mined bid to get rid of Jus­tice Mos­ito, who was con­tro­ver­sially ap­pointed to the post by for­mer Prime Min­is­ter Tom Tha­bane on Jan­uary 15 2015. He was of­fi­cially sworn into of­fice on Jan­uary 27 2015 af­ter a court chal­lenge by Ad­vo­cate Thet­sane and At­tor­ney Gen­eral Ad­vo­cate Tšokolo Makhete failed.

Jus­tice Mos­ito was ap­pointed an act­ing Judge of the High Court in 2006 and mostly served in the Labour Ap­peal Court un­til his ap­point­ment to head the Court of Ap­peal in Jan­uary 2015. Act­ing judges mostly keep their law firms op­er­a­tional as they are called to sit on the bench as and when re­quired.

Part of the charge sheet against Jus­tice Mos­ito reads: “At all rel­e­vant times the ac­cused was: (a) A prac­tic­ing ad­vo­cate, hav­ing been ad­mit­ted to prac­tice in 1993, and res­i­dent in the King­dom of Le­sotho; (b) A per­son sub­ject to in­come tax im­posed by the Act and ac­cord­ingly a tax­payer as de­fined in the Act; (c) Un­der an obli­ga­tion to file a re­turn of in­come in the pre­scribed form for each year of as­sess­ment (“fis­cal year”), be­ing the pe­riod of 12 months end­ing 31st March not later than the last day of the third month fol­low­ing the end of that fis­cal year, to wit on or be­fore 30 June of the fol­low­ing year.” The charge sheet fur­ther reads: “The ac­cused did not (timeously) file a re­turn of in­come (on) 19 oc­ca­sions for each suc­ceed­ing year, from the fis­cal year end­ing on 31st March, 1996 to the fis­cal year end­ing on 31st March, 2014 be­fore June, 2014.”

Ac­cord­ing to the no­tice of trial, which was signed by Ad­vo­cate Thet­sane on 21 Au­gust 2015, Jus­tice Mos­ito was ex­pected to ap­pear be­fore the High Court on Mon­day this week to Highan­swer the tax charges lev­elled against him.

How­ever, in a new twist, Jus­tice Mos­ito this week filed an ur­gent ap­pli­ca­tion to block his pros­e­cu­tion ar­gu­ing that it was un­con­sti­tu­tional.

In his no­tice of mo­tion, the Court of Ap­peal pres­i­dent wants “a declara­tory or­der that the pros­e­cu­tion of the ap­pli­cant (Jus­tice Mos­ito) for fail­ure to file tax re­turns in due time for the fis­cal years span­ning the pe­riod 31 March 1996 to 31 March 2014 amounts to dis­crim­i­na­tory and or se­lec­tive pros­e­cu­tion and vi­o­lates ap­pli­cant’s con­sti­tu­tional right to equal­ity be­fore the law and equal pro­tec­tion of the law.”

The judge wants “A declara­tory or­der that the de­ci­sion and/or in­sti­tu­tion of crim­i­nal pro­ceed­ings against the ap­pli­cant in CRI/T/0051/2015 is un­con­sti­tu­tional.”

Jus­tice Mos­ito wants the no­tice com­pelling him to ap­pear in court for trial and the charge sheet to be deemed as “both un­con­sti­tu­tional and ir­reg­u­lar”. He wants “an or­der set­ting aside the afore­men­tioned de­ci­sion and/or crim­i­nal pro­ceed­ings”.

He also wants the costs of the suit to be paid by the re­spon­dents, Ad­vo­cate Thet­sane and At­tor­ney Gen­eral (AG) Ad­vo­cate Tšokolo Makhethe (KC), if they op­pose his ap­pli­ca­tion.

In his ap­pli­ca­tion, Jus­tice Mos­ito says if the DPP and AG op­pose the case and lose, they should pay the costs of five ad­vo­cates and one at­tor­ney who shall be rep­re­sent­ing him.

High Court judge, Jus­tice Semapo Peete, this week granted Jus­tice Mos­ito in­terim re­lief that he should not be pros­e­cuted un­til his ap­pli­ca­tion had been fi­nalised by the Con­sti­tu­tional Court.

The judge also ruled that the case should be dealt with on an ur­gent ba­sis and di­rected that the re­spon­dents (Ad­vo­cates Thet­sane and Makhethe) ap­pear in court on 1 Oc­to­ber 2015 to in­di­cate if they op­posed the Judge’s ap­pli­ca­tion or not.

The whole case seems to sug­gest that af­ter their un­suc­cess­ful at­tempts to nul­lify Jus­tice Mos­ito’s ap­point­ment in the courts, Ad­vo­cates Thet­sane and Makhete will stop at noth­ing in en­deav­ours to get rid of Jus­tice Mos­ito. Cyn­ics might also see their latest en­deav­our as an at­tempt by the new coali­tion gov­ern­ment to get rid of all peo­ple ap­pointed to key posi- tions by Dr Tha­bane. Al­ready scores of prin­ci­pal sec­re­taries ap­pointed by Dr Tha­bane have been sent home.

Judge Mos­ito’s ap­point­ment sparked con­tro­versy with five se­nior lawyers is­su­ing a public state­ment con­demn­ing it.

The lawyers: Ad­vo­cate Sale­mane Phafane KC, Ad­vo­cate Motiea Teele KC, Ad­vo­cate Karabo Mo­hau KC, Ad­vo­cate Zwe­lakhe Mda KC and At­tor­ney Qale­hang Let­sika es­sen­tially con­demned Judge Mos­ito’s ap­point­ment as a “pa­tron­age” ap­point­ment. They claimed Judge Mos­ito had acted for Dr Tha­bane prior to the ap­point­ment.

As care­taker Prime Min­is­ter, the lawyers ar­gued, Dr Tha­bane had no right to make such a se­nior ap­point­ment as it vi­o­lated a pact to de­sist from such ac­tions af­ter the col­lapse of his coali­tion gov­ern­ment and the dis­so­lu­tion of Par­lia­ment pend­ing the con­ven­ing of the 28 Fe­bru­ary 2015 elec­tions.

Other judges of the Court of Ap­peal at the time of Judge Mos­ito’s ap­point­ment also re­signed in protest.

Ad­vo­cates Thet­sane and Makhete’s Con­sti­tu­tional Court bid to nul­lify Dr Tha­bane’s ap­point­ment of Jus­tice Mos­ito to the high­est court in the land gen­er­ated much con­tro­versy af­ter they cited King Letsie 111 as a party to the pro­ceed­ings.

This rep­re­sented the first ever time that the King had been made a party to court pro­ceed­ings. Ad­vo­cates Thet­sane and Makhete said Dr Tha­bane had wrongly ad­vised the King to ap­point Jus­tice Mos­ito as he had not fol­lowed the req­ui­site le­gal pro­ce­dures in­clud­ing con­sult­ing the cab­i­net first. Ad­vo­cates Thet­sane and Makhete ar­gued that Jus­tice Mos­ito’s ap­point­ment was ir­reg­u­lar and in­valid.

But Dr Tha­bane and King Letsie ar­gued the two had no ju­ris­dic­tion to chal­lenge the ap­point­ment which had been con­ducted legally. A panel of South African judges ap­pointed to hear the case ruled that Jus­tice Mos­ito’s ap­point­ment had been prop­erly made within the law and ruled in favour of the King and Dr Tha­bane.

COURT of Ap­peal Pres­i­dent Jus­tice Kananelo Mos­ito

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