Mos­ito ap­peals High Court rul­ing

Lesotho Times - - News - Staff Reporter

COURT of Ap­peal Pres­i­dent, Jus­tice Kananelo Mos­ito, yes­ter­day ap­pealed a High Court rul­ing al­low­ing his pros­e­cu­tion for al­legedly evad­ing tax for 19 years.

Jus­tice Mos­ito’s le­gal rep­re­sen­ta­tive, Ad­vo­cate Mon­a­heng Rasekoai, filed a no­tice to ap­peal in the Court of Ap­peal af­ter Chief Jus­tice Nthomeng Ma­jara ruled on Tues­day that Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) Le­aba Thet­sane(king’s Coun­sel) was within his rights to pro­ceed with the crim­i­nal charges.

Ad­vo­cate Thet­sane pre­ferred crim­i­nal charges against Jus­tice Mos­ito on 21 Au­gust 2015 for al­legedly not pay­ing tax for his le­gal firm from 1996 to 2014.

Jus­tice Mos­ito is charged with vi­o­lat­ing pro­vi­sions of the In­come Tax Act of 1993, and Crim­i­nal Pro­ce­dure and Ev­i­dence Act of 1981. Ac­cord­ing to the charges, Jus­tice Mos­ito never reg­is­tered with the tax au­thor­i­ties as re­quired by the law and only did so on 20 April 2015.

How­ever, the Court of Ap­peal pres­i­dent on 30 Au­gust 2015 filed a con­sti­tu­tional case to have the charges dropped, ar­gu­ing the charges against him were “dis­crim­i­na­tory and ma­li­cious”.

He also chal­lenged a let­ter writ­ten by Prime Min­is­ter Pakalitha Mo­sisili ask­ing him to show cause why he should not be im­peached be­cause of the tax ac­cu­sa­tion.

In her rul­ing, Chief Jus­tice Ma­jara said the ini­ti­a­tion of crim­i­nal pro­ceed­ings against Jus­tice Mos­ito, be­fore his re­moval from of­fice had been com­pleted, vi­o­lated his con­sti­tu­tional rights and his right to ju­di­cial in­de­pen­dence.

“In our view, judges oc­cupy a spe­cial and im­por­tant po­si­tion in our so­ci­ety. Such a po­si­tion is rec­og­nized by the Con­sti­tu­tion and in or­der to pro­tect their ju­di­cial in­de­pen­dence, the Con­sti­tu­tion af­fords judges a pro­ce­dure in which they may not be ar­bi­trar­ily re­moved from of­fice,” she said.

How­ever, Chief Jus­tice Ma­jara noted that the con­sti­tu­tional pro­ce­dure did not give judges supremacy over the DPP since the lat­ter po­si­tion was not sub­ject to the di­rec­tion or con­trol of any per­son or au­thor­ity.

“In terms of Sec­tion 99 (2) (a) (of the Con­sti­tu­tion), the DPP has the power to in­sti­tute and pro­ceed with crim­i­nal pro­ceed­ings against any per­son be­fore any court (other than a court mar­tial) in re­spect of any of­fense al­leged to have been com­mit­ted by that per­son,” she said.

“It would, there­fore, be a clear vi­o­la­tion of the Con­sti­tu­tion if we were to find that the DPP can­not in­sti­tute pro­ceed­ings against Dr Mos­ito. . .”

Chief Jus­tice Ma­jara ar­gued that the re­moval of Jus­tice Mos­ito from of­fice for crim­i­nal con­duct and the in­sti­tu­tion of crim­i­nal pro­ceed­ings against him were two sep­a­rate pro­cesses em­a­nat­ing from the ex­er­cise of two dif­fer­ent func­tions.

“The crim­i­nal pros­e­cu­tion is in­tended to pros­e­cute a judge for his/her al­leged mis­con­duct and the sec 125 (3) to (7) process to in­ves­ti­gate the sus­pen­sion or re­moval of a judge from of­fice. The prime min­is­ter is, in terms of sec 125 of the Con­sti­tu­tion, en­ti­tled to in­voke the pro­vi­sions of that sec­tion of the Con­sti­tu­tion at any time he or she be­comes aware that such process ought to be com­menced with,” she said.

“Al­though Dr Mos­ito is the present sit­ting pres­i­dent of the Court of Ap­peal, he ap­proached this court in the main ap­pli­ca­tion as a pri­vate in­di­vid­ual in an at­tempt to en­force cer­tain con­sti­tu­tional rights.”

Chief Jus­tice Ma­jara added: “We there­fore have to con­clude that the process fol­lowed by the DPP in in­dict­ing Dr Mos­ito in the cir­cum­stances of this case is not un­con­sti­tu­tional and should be pro­ceeded with. The rule nisi as such stands to be dis­charged.

“The con­clu­sion puts to bed the claim by Dr Mos­ito in the se­cond ap­pli­ca­tion. The rule nisi of that ap­pli­ca­tion is con­se­quently dis­charged and the prime min­is­ter is al­lowed, if he so in­tends to pro­ceed with it in terms of Sec­tion 125 of the Con­sti­tu­tion.”

The fol­low­ing day, Ad­vo­cate Rasekoai filed a No­tice to Ap­peal the judge­ment in the Court of Ap­peal stat­ing that the ap­pel­lant (Jus­tice Mos­ito) was “dis­sat­is­fied with the whole judge­ment”.

Part of the ap­peal, of which Ad­vo­cate Thet­sane and At­tor­ney Gen­eral ( AG) Tšokolo Makhethe are first and se­cond re­spon­dents re­spec­tively, read: “The court erred in hold­ing as it did that the process en­vis­aged by Sec­tion 125 (3)-(7) (of the Con­sti­tu­tion) should not pre­cede the in­sti­tu­tion of crim­i­nal pro­ceed­ings con­tem­plated against a judge such as the ap­pel­lant.

“The court ought to have held that upon a proper in­ter­pre­ta­tion of the afore­said sec­tion as in­formed by es­tab­lished le­gal prin­ci­ples, it was the in­ten­tion of the framers of the Con­sti­tu­tion that a judge should not be pros­e­cuted, con­victed and sen­tenced be­fore he was ei­ther sus­pended from per­form­ing the func­tions of his of­fice or re­moved from of­fice.”

The ap­peal also ar­gued that the court erred in rul­ing that the ap­pel­lant had failed to show that the crim­i­nal pros­e­cu­tion against him was not in­sti­gated by the LRA.

“The court ought to have held that, re­gard be­ing had to the ev­i­dence prof­fered by the first re­spon­dents, that he re­lied on in­for­ma­tion he ob­tained from po­lice dock­ets and, (it be­ing com­mon cause be­tween the par­ties that there was never an or­der of court ob­tained be­fore such in­for­ma­tion was ob­tained by the po­lice from the LRA) the first re­spon­dent could not com­pe­tently and law­fully rely on the ap­pel­lants con­fi­den­tial tax in­for­ma­tion . . .”

Jus­tice Mos­ito on yes­ter­day ap­plied for a stay of ex­e­cu­tion on the judg­ment whose mer­its would be ar­gued to­day.

Se­nior Coun­sel Gil­bert Mar­cus and Haae Phoofolo ap­peared on be­half Jus­tice Mos­ito, while crown coun­sel Guido Pen­zhorn rep­re­sented the DPP and AG.

North Gaut­eng High Court, Deputy Pres­i­dent Aubrey Led­waba, Jus­tice El­iz­a­beth Mamoloko Kubushi and Jus­tice David Stephanus Fourie from South Africa presided over the case.

Ap­peal Court pres­i­dent Kananelo Mos­ito.

Newspapers in English

Newspapers from Lesotho

© PressReader. All rights reserved.