Govt ap­points new apex court judge

Lesotho Times - - Front Page - Tefo Tefo

Re­tired South African judge, Jus­tice ian Gor­don Far­lam (77), has been ap­pointed Act­ing Pres­i­dent of the Le­sotho Court of Ap­peal.

His ap­point­ment fol­lows the re­cent sus­pen­sion of Jus­tice Kananelo Mos­ito who had been head of the apex court since Jan­uary 2015.

dr Mos­ito was put on in­def­i­nite sus­pen­sion on 12 Fe­bru­ary to al­low in­ves­ti­ga­tions into his fit­ness to hold of­fice to com­mence af­ter he was charged with tax eva­sion.

Ac­cord­ing to a govern­ment gazette dated 19 Fe­bru­ary 2016, Jus­tice Far­lam’s ap­point­ment was with ef­fect from 22 Fe­bru­ary 2016.

dr Mos­ito was ap­pointed Court of Ap­peal pres­i­dent in Jan­uary 2015, tak­ing over from Jus­tice Michael Ramod­ibedi who had re­signed af­ter los­ing a pro­tracted le­gal bat­tle to stop his im­peach­ment for al­leged abuse of of­fice.

Ac­cord­ing to the of­fice of the Govern­ment Sec­re­tary, dr Mos­ito’s sus­pen­sion was meant “to pro­tect the courts’ dig­nity”.

Mean­while, dr Mos­ito’s sus­pen­sion fol­lowed a let­ter writ­ten by Prime Min­is­ter Pakalitha Mo­sisili on 8 Fe­bru­ary 2016, in which he noted his in­ten­tion to ad­vise the King to sus­pend him.

in the let­ter, dr Mo­sisili gave Jus­tice Mos­ito seven days to show cause why he should not go ahead with his ad­vise.

Part of the premier’s cor­re­spon­dence reads: “in the cir­cum­stances, i in­tend to ad­vise His Majesty the King to sus­pend you from of­fice and ex­er­cise of its func­tions, pur­suant to sec­tion 125(7) of the con­sti­tu­tion.

“in my view, it is in­im­i­cal to the ad­min­is­tra­tion of jus­tice and in­tegrity of the ju­di­ciary that in all the cir­cum­stances of your case, you should still con­tinue be­ing in of­fice and ex­er­cis­ing the func­tions thereof.

“How­ever, i in­vite you to make rep­re­sen­ta­tions, show­ing cause, if any, why i can­not pro­ceed as in­di­cated above.”

On 4 Fe­bru­ary 2016, dr Mo­sisili had also writ­ten to the judge re­gard­ing the same is­sue. in the let­ter, ti­tled ‘en­quiry in terms of Sec­tion 125 of the Con­sti­tu­tion’, the premier in­formed Jus­tice Mos­ito that he had ad­vised the King to es­tab­lish a tri­bunal to in­ves­ti­gate his con­duct and which could lead to his im­peach­ment.

the let­ter read in part: “My let­ters of 8 Oc­to­ber 2015 and 16 Oc­to­ber 2015, in­clud­ing yours of 21 de­cem­ber 2015, bear ref­er­ence. Fur­ther, in the same con­nec­tion, ref­er­ence is to the Court of Ap­peal de­ci­sion and or­der of 26 Jan­uary 2016, whose ef­fect was to refuse your ap­pli­ca­tion that the in­tended en­quiry un­der Sec­tion 125 of the con­sti­tu­tion, be halted.”

dr Mo­sisili was re­fer­ring to Jus­tice Mos­ito’s failed Con­sti­tu­tional Court bid to pre­vent the premier from es­tab­lish­ing the im­peach­ment tri­bunal against him.

the prime min­is­ter said it was against this back­ground that he ad­vised the King to es­tab­lish the tri­bunal.

“there­fore, you are hereby no­ti­fied that His Majesty the King has ap­pointed a tri­bunal in terms of Sec­tion 125(5) of the Con­sti­tu­tion to en­quire into the ques­tion of your re­moval from of­fice for mis­be­haviour or in­abil­ity to per­form the func­tions of your of­fice as the Pres­i­dent of the Court of Ap­peal, to which of­fice you were ap­pointed on 15th Jan­uary, 2015,” he said.

the prime min­is­ter then an­nounced the names of mem­bers of the tri­bunal, who are all from South Africa. the judges are Jus­tice Fred­erik daniel Ja­cobus Brand, Jus­tice Noel Vic­tor Hurt, and Jus­tice John God­frey Fox­croft. Ac­cord­ing to dr Mo­sisili’s let­ter, the tri­bunal will be­gin its work on 9 March 2016.

in the cor­re­spon­dence, dr Mo­sisili also out­lines why he wants Jus­tice Mos­ito out of of­fice.

“dur­ing the pe­riod 1996 – 2014, and while you were a prac­tic­ing ad­vo­cate and tax­payer as de­fined in Sec­tion 3 of the in­come tax Act, (‘the Act’), you did fail to ren­der a re­turn of in­come tax for each suc­ceed­ing year of as­sess­ment (‘fis­cal year’) on or be­fore 30 June of the fol­low­ing year, to wit, on 19 oc­ca­sions, in con­tra­ven­tion of Sec­tion 128(2) read with Sec­tion 175(1) of the Act, and were only reg­is­tered as a tax­payer with the Le­sotho Rev­enue Au­thor­ity (LRA) for the first time on 20 April 2015,” he said.

“Such con­duct con­sti­tuted mis­be­haviour ren­der­ing you un­fit to con­tinue in of­fice and also ren­ders you un­able to prop­erly per­form your func­tions as Pres­i­dent of the Court of Ap­peal.”

the premier also took ex­cep­tion to Jus­tice Mos­ito’s ar­gu­ment that some top lawyers had not paid in­come tax and that his pros­e­cu­tion was dis­crim­i­na­tory. to prove his point that he was be­ing dis­crim­i­nated against, the judge in Oc­to­ber last year re­quested the Con­sti­tu­tional Court to com­pel the LRA to dis­close the tax sta­tus of all High Court and Court of Ap­peal judges, as well as five of the coun­try’s top lawyers.

dr Mo­sisili charged in his let­ter: “Such in­ves­ti­ga­tions were con­ducted with­out the knowl­edge or con­sent of the sub­jects of the in­ves­ti­ga­tions.

“Such in­ves­ti­ga­tions con­tra­vened the se­crecy pro­vi­sions of Sec­tion 202 of the Act and con­sti­tuted mis­be­hav­ior, ren­der­ing you un­fit to con­tinue in of­fice.”

There­fore, you are hereby no­ti­fied that His Majesty the King has ap­pointed a tri­bunal in terms of Sec­tion 125(5) of the Con­sti­tu­tion to en­quire into the ques­tion of your re­moval from of­fice for mis­be­haviour or in­abil­ity to per­form the func­tions of your of­fice as the Pres­i­dent of the Court of Ap­peal, to which of­fice you were ap­pointed on 15th Jan­uary, 2015

Sus­pended Court of Ap­peal pres­i­dent Jus­tice Kananelo Mos­ito.

RE­TIRED South African judge Jus­tice ian Gor­don Far­lam.

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