Mosito faces ouster
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