Mos­ito fights dis­missal

Lesotho Times - - Front Page - Lekhetho Nt­sukun­yane

AP­PEAL Court Pres­i­dent Jus­tice Kananelo Mos­ito on Tues­day re­ceived much-needed sup­port from the High Court in his bat­tle against Prime Min­is­ter Pakalitha Mo­sisili.

The pre­mier last week gave Dr Mos­ito seven days to give rea­sons why he should not be fired for “mis­be­hav­ior and/or in­abil­ity to per­form the func­tions of your of­fice”.

In a let­ter dated 8 Oc­to­ber 2015, Dr Mo­sisili told Jus­tice Mos­ito he had learnt of “ad­verse” al­le­ga­tions of tax vi­o­la­tions against the judge hence his in­ten­tion to re­move him from of­fice.

Dr Mo­sisili’s let­ter reads in part: “It has come to my no­tice that ad­verse al­le­ga­tions of vi­o­la­tions of the In­come Tax Act of 1993 have been lev­elled against you.

“You will agree with me that it is in­im­i­cal to the ad­min­is­tra­tion of jus­tice and in­tegrity of the ju­di­ciary that the in­cum­bent of the high ju­di­cial of­fice of the Pres­i­dent of the Court of Ap­peal be un­der a cloud.

“Con­se­quently, I am con­sid­er­ing whether to rep­re­sent to His Majesty King Letsie III that the ques­tion of your re­moval from of­fice be in­ves­ti­gated in terms of Sec­tion 125 (5) of the Con­sti­tu­tion.

“I hereby in­vite you to make writ­ten rep­re­sen­ta­tions, if you are so in­clined, as to why I should not re­quest His Majesty to ap­point a tri­bunal in terms of Sec­tion 125 (5) of the Con­sti­tu­tion to in­quire into your re­moval from of­fice for mis­be­haviour and/or in­abil­ity to per­form the func­tions of your of­fice. Kindly di­rect any such rep­re­sen­ta­tions to my of­fice within seven days of the re­ceipt of this let­ter.”

How­ever, in­stead of re­spond­ing to the ultimatum, Dr Mos­ito on Tues­day filed an ur­gent ap­pli­ca­tion be­fore the High Court seek­ing an or­der sus­pend­ing Dr Mo­sisili’s let­ter un­til the Con­sti­tu­tional Court has fi­nal­ized his case per­tain­ing to the tax al­le­ga­tion.

In the Con­sti­tu­tional Case in ques­tion, Jus­tice Mos­ito chal­lenged the de­ci­sion by the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), King’s Coun­sel Le­aba Thet­sane, to pros­e­cute him for the al­leged late fil­ing of tax re­turn forms for his law firm, KEM Cham­bers, for the past 19 years.

The case is pend­ing be­fore the court and is set for hear­ing on 2 Novem­ber 2015.

On Tues­day, High Court Jus­tice Tham­sanqa Nom­nc­qongo is­sued an in­terim or­der sus­pend­ing Dr Mo­sisili’s let­ter pend­ing the fi­nal­i­sa­tion of Jus­tice Mos­ito’s con­sti­tu­tional chal­lenge.

In his found­ing af­fi­davit filed be­fore the High Court, Jus­tice Mos­ito noted: “I have been and am the Pres­i­dent of the Court of Ap­peal of Le­sotho hav­ing been duly ap­pointed in terms of the Con­sti­tu­tion of the King­dom of Le­sotho on 15 Jan­uary 2015.

“Sub­se­quent to my ap­point­ment, the First Re­spon­dent (Ad­vo­cate Makhethe KC) chal­lenged my ap­point­ment in the courts of Le­sotho ques­tion­ing its con­sti­tu­tion­al­ity and le­gal­ity. His chal­lenge failed as the Court of Ap­peal defini­tively put an end to the mat­ter on 12 June 2015…”

Jus­tice Mos­ito fur­ther notes that on 20 July, the Court of Ap­peal held its first ses­sion un­der his pres­i­dency and handed down judge­ments on 7 Au­gust.

“On 10 Au­gust 2015, in the morn­ing hours, I heard over a ra­dio sta­tion named Tšenolo FM (a ra­dio sta­tion ev­i­dently aligned to the rul­ing Demo­cratic Congress) that there were moves to pur­sue tax charges against a Court of Ap­peal judge and that the charges would be brought to the courts soon.

“This was said within the con­text of per­sons who were in­tended to be re­moved from their re­spec­tive of­fices be­cause they had been al­legedly ap­pointed un­der the pre­vi­ous coali­tion gov­ern­ment headed by former prime min­is­ter, Thomas Tha­bane.

“This sent a clear mes­sage to me that ref­er­ence to such a judge was ref­er­ence to me. How­ever, I ig­nored that in­for­ma­tion but took it as a sig­nal that there were at­tempts in the off­ing aimed at manufacturing and fab­ri­cat­ing tax charges against me with a view to re­move me from of­fice,” Jus­tice Mos­ito noted in the af­fi­davit.

On 21 Au­gust 2015, Jus­tice Mos­ito in­di­cated that the DPP charged him with in­come tax vi­o­la­tion.

“I im­me­di­ately pre­pared a con­sti­tu­tional mo­tion chal­leng­ing the said pros­e­cu­tion. On 28 Au­gust 2015, I re­ceived a no­tice of trial which re­quired me to ap­pear be­fore the High Court on 31 Au­gust (2015) to an­swer the said charges.”

Dr Mos­ito in­di­cated he went to the court on the said date, but also filed a con­sti­tu­tional mo­tion “to stay the crim­i­nal pros­e­cu­tion pend­ing fi­nal de­ter­mi­na­tion of the con­sti­tu­tional case…”

An in­terim or­der stay­ing the pros­e­cu­tion was granted, the judge added. “Pa­pers were filed by par­ties in the mat­ter and the hear­ing date of the con­sti­tu­tional mo­tion was fixed at 5 Novem­ber 2015 (the case was resched­uled to 2 Novem­ber). I may men­tion that in the con­sti­tu­tional mo­tion, I had com­plained that the DPP was not en­ti­tled, un­der the con­sti­tu­tion, to have in­sti­tuted the crim­i­nal pros­e­cu­tion against me with­out my hav­ing first been pro­ceeded against in terms of Sec­tion 125 (5) of the Con­sti­tu­tion of Le­sotho.

“I ar­gued that the pros­e­cu­tion could only be in­sti­tuted against me af­ter the process contemplated by the said sec­tion would have been fi­nalised. Ap­par­ently, the DPP and At­tor­ney Gen­eral saw merit in this com­plaint and, as le­gal rep­re­sen­ta­tives of the Le­sotho gov­ern­ment, ad­vised the Sec­ond Re­spon­dent (Prime Min­is­ter) to pro­ceed against me in terms of the said sec­tion.”

Jus­tice Mos­ito noted fur­ther that on the evening of 8 Oc­to­ber 2015, the Gov­ern­ment Sec­re­tary ar­rived at his res­i­dence and de­liv­ered a let­ter from Dr Mo­sisili.

“In the an­nex­ure (let­ter), it be­came clear that the Sec­ond Re­spon­dent had pro­ceeded by way of Sec­tion 125 (5) of the Con­sti­tu­tion as an af­ter­thought af­ter hav­ing learned of the con­sti­tu­tional na­ture of my com­plaint. It will be re­alised from the an­nex­ure that the Sec­ond Re­spon­dent is call­ing upon me to show cause why he should not re­quest the King to ap­point a tri­bunal to in­quire into the al­leged tax trans­gres­sions against me, which form the ba­sis of both the con­sti­tu­tional case and the crim­i­nal case men­tioned above.

“In other words, the Sec­ond Re­spon­dent con­tem­plates re­quest­ing His Majesty to ap­point a tri­bunal to in­quire into mat­ters that are sub ju­dice. What this means, there­fore, is that the Sec­ond Re­spon­dent is

Sub­se­quent to my ap­point­ment, the First Re­spon­dent (Ad­vo­cate Makhethe KC) chal­lenged my ap­point­ment in the courts of Le­sotho ques­tion­ing its con­sti­tu­tion­al­ity and le­gal­ity. His chal­lenge failed as the Court of Ap­peal defini­tively put an end to the mat­ter on 12 June 2015…

call­ing upon me to show cause why a tri­bunal should not be ap­pointed to as­cer­tain the va­lid­ity, ve­rac­ity and pro­pri­ety of the tax al­le­ga­tions lev­elled against me but which are cur­rently the sub­ject of con­sid­er­a­tion by the High Court as they are pend­ing in both the con­sti­tu­tional and crim­i­nal cases.

“I ver­ily aver that the Sec­ond Re­spon­dent’s re­sort to Sec­tion 125 (5) of the Con­sti­tu­tion to have a tri­bunal in­ves­ti­gate sub ju­dice mat­ters does not only cre­ate a sit­u­a­tion in which such a tri­bunal would be con­temp­tu­ous of the High Court in so pro­ceed­ing, but also clearly un­der­mines the rule of law which re­quires that there should be no in­ter­fer­ence with the ju­di­cial de­ci­sion-mak­ing process by the ex­ec­u­tive.

“I aver that in so do­ing, the Sec­ond Re­spon­dent’s move un­der­mines the sep­a­ra­tion of pow­ers and in­de­pen­dence of the ju­di­ciary.”

Mean­while, Ad­vo­cate Haae Phoofolo (KC), who rep­re­sents Jus­tice Mos­ito in the case, on Tues­day told the Le­sotho Times that al­though the High Court had ruled in their favour, the bat­tle was far from over.

“We an­tic­i­pate that the gov­ern­ment will quickly file a re­sponse in which they will also want the court to hear this mat­ter within 48 hours. They have that right.

“They might do this be­cause they want to make sure when the tax case is heard next month, Jus­tice Mos­ito would no longer be pres­i­dent of the Court of Ap­peal so that their case will no longer be un­con­sti­tu­tional.”

Court of Ap­peal Pres­i­dent Kananelo Mos­ito

ap­peal Court Pres­i­dent jus­tice Kananelo Mos­ito

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