Mos­ito faces ouster

Lesotho Times - - Front Page - Tefo Tefo

THE govern­ment has launched a feisty bid to have Court of Ap­peal Pres­i­dent Jus­tice Kananelo Mos­ito im­peached from of­fice af­ter Prime Min­is­ter Pakalitha Mo­sisili se­lected three South African judges to con­sti­tute a tri­bunal to con­sider re­mov­ing Judge Mos­ito from his post.

The Govern­ment Sec­re­tary (GS) Le­bo­hang Ramohlanka wrote to three South African judges last week telling them that Dr Mo­sisili had se­lected them to sit on a tri­bunal to con­sider Jus­tice Mos­ito’s re­moval from of­fice.

Jus­tice Mos­ito has since won a tem­po­rary re­prieve to stay in of­fice af­ter Chief Jus­tice Nthomeng Ma­jara granted his ap­pli­ca­tion for an in­terim or­der pre­vent­ing the govern­ment from pro­ceed­ing with the im­peach­ment tri­bunal.

But de­spite the tem­po­rary re­prieve, the events of the past week prove the hard­ened re­solve of the govern­ment to get rid of the Court of Ap­peal Pres­i­dent from the apex of the King­dom’s ju­di­ciary at all costs.

Jus­tice Mos­ito ob­tained the in­terim court or­der in the High Court af­ter learn­ing that Ms Ramohlanka, had writ­ten to three prom­i­nent South African judges re­quest­ing them to con­sti­tute an im­peach­ment tri­bunal to con­sider his fit­ness to hold of­fice af­ter al­le­ga­tions that he avoided pay­ing taxes.

Dated 28 De­cem­ber 2015, Ms Ramohlanka’s let­ters were ad­dressed to Jus­tices Fred­erik Daniel Ja­cobus Brand, Noel Vic­tor Hurt and John God­frey Fox­croft, all from South Africa.

Part of the let­ter writ­ten to Jus­tice Brand reads: “I write to in­form your lord­ship that it has pleased the Right Honourable the Prime Min­is­ter to se­lect you to be a mem­ber of the tri­bunal and its chair­man on the fol­low­ing terms and con­di­tions:

l Pay­ment of M20 000 sit­ting al­lowance per day or part thereof, of the sit­ting days of the tri­bunal.

l Pay­ment of M10 000 re­search and prepa­ra­tion al­lowance per day or part thereof, of the sit­ting and non-sit­ting days of the tri­bunal.”

The two other judges to sit on the tri­bunal would each get a M15 000 daily sit­ting al­lowance and M8 000 for re­search and prepa­ra­tion.

The seeds of the Court of Ap­peal pres­i­dent’s im­peach­ment were orig­i­nally sown on 21 Au­gust 2015 when Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), Le­aba Thet­sane (King’s Coun­sel), raised crim­i­nal charges against Judge Mos­ito for al­legedly not pay­ing taxes 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.

Dr Mo­sisili had sub­se­quently writ­ten to Jus­tice Mos­ito, in a let­ter dated 8 Oc­to­ber 2015, ef­fec­tively telling the Court of Ap­peal Pres­i­dent that be­cause of the “ad­verse” al­le­ga­tions of tax vi­o­la­tions against him, he was un­fit to re­main in of­fice as he had vi­o­lated the very law that he had sworn to up­hold.

Jus­tice Mos­ito then launched a se­ries of court ac­tions to save his job.

His lawyers ar­gued that he was merely be­ing vic­tim­ized by the new coali­tion govern­ment be­cause he was an ap­pointee of for­mer Premier Thomas Tha­bane and the new coali­tion govern­ment was hell bent on re­mov­ing all peo­ple ap­pointed by Tha­bane from key posts. Jus­tice Mos­ito sought to paint a pic­ture of him­self as a prime vic­tim, claim­ing all other judges had never filed their tax re­turns timeously but were not be­ing haunted out of of­fice.

But his ar­gu­ments failed to gain trac­tion with a three-panel Con­sti­tu­tional Court bench, com­pris­ing of South African judges, which dis­missed his bid to have his pros­e­cu­tion over the tax charges com­pletely stayed.

The three South African judges ruled on 15 De­cem­ber 2015 that DPP Thet­sane and premier Mo­sisili were within their rights to pro­ceed with the crim­i­nal charges. The logic of their judg­ment was that if one is ac­cused of com­mit­ting a crime, he or she can­not refuse to be pros­e­cuted sim­ply be­cause other peo­ple have com­mit­ted sim­i­lar crimes and have not been pros­e­cuted.

“In other words you can­not com­mit a crime of steal­ing or mur­der and then ar­gue that you should not be pros­e­cuted sim­ply be­cause other thieves or mur­der­ers who have ei­ther stolen or killed are still at large and haven’t been pros­e­cuted,” said one lawyer who have been fol­low­ing Jus­tice Mos­ito’s case but did not want to be iden­ti­fied for what he called pro­fes­sional rea­sons.

Jus­tice Mos­ito nev­er­the­less ap­pealed against the de­ci­sion of the South African judges the next day on 16 De­cem­ber 2015 and filed an ap­pli­ca­tion to stay the ex­e­cu­tion of their judg­ment, in what one lawyer de­scribed as a “mon­u­men­tal le­gal up­hill” for the Court of Ap­peal Pres­i­dent.

Dr Mo­sisili im­me­di­ately wrote to Judge Mos­ito soon af­ter his los­ing of the case ask­ing him to sub­mit rea­sons why a tri­bunal should not be es­tab­lished to con­sider the Court of Ap­peal Pres­i­dent’s im­peach­ment.

In his re­sponse Judge Mos­ito said such a tri­bunal could not be es­tab­lished be­fore the fi­nal­iza­tion of his ap­peal against the judg­ment of the three South African judges.

“For the fol­low­ing rea­sons it would, in my opin­ion, be in­ap­pro­pri­ate for the Prime Min­is­ter to pro­ceed to re­quest His Majesty, the King to ap­point a tri­bunal,” wrote Judge Mos­ito.

“Firstly, on 17 De­cem­ber 2015, the Prime Min­is­ter un­der­took through his coun­sel Ad­vo­cate G. (Guido) Pen­zhorn SC be­fore the Chief Jus­tice Nthomeng Ma­jara, that he would not ex­e­cute the judge­ment of the High Court pend­ing fi­nal­i­sa­tion of the stay pro­ceed­ings.

“I was sur­prised to re­ceive the Prime Min­is­ter’s let­ter few hours later seek­ing to en­force that judg­ment.

“Se­condly, an ap­point­ment of a tri­bunal to deal with mat­ters pend­ing be­fore the Court of Ap­peal un­der­mines the sub ju­dice rule and the rule of law.”

The re­sponse did not per­suade Dr Mo­sisili who pro­ceeded to se­lect the judges to sit in the im­peach­ment tri­bunal and to com­mu­ni­cate to them di­rectly un­til Judge Ma­jara’s rul­ing halted that process.

Jus­tice Mos­ito’s lawyers and the lawyers rep­re­sent­ing the Prime Min­is­ter, At­tor­ney Gen­eral Tšokolo Makhethe and DPP Thet­sane are set to ap­pear in court again on 18 Jan­uary 2016 re­gard­ing the case.

Court of Ap­peal Pres­i­dent Jus­tice Kananelo Mos­ito HIGH Court judge Jus­tice Molefi Makara

Court of Ap­peal Pres­i­dent Jus­tice Kananelo Mos­ito

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