Judg­ment re­served in Mos­ito case

Lesotho Times - - News - Tefo Tefo

The high Court on Tues­day re­servedd judg­ment in a case in which sus­pended Court ourt of Ap­peal Pres­i­dent Jus­tice Kananelo Mos­ito wants judges’ im­peach­ment law re­viewed.ed.

Jus­tice Mos­ito on 28 Jan­uary 2016 filed a con­sti­tu­tional case in a fresh bid to blockck im­peach­ment pro­ceed­ings against him.

This was af­ter Prime Min­is­ter Pakalithaalitha Mo­sisili asked him to show cause whyhy he should not re­quest the King to ap­pointt a tri­bunal to in­quire into al­le­ga­tions of tax eva­sion lev­elled against him by the Direc­toror of Pub­lic Pros­e­cu­tions (DPP).

Dr Mos­ito is ac­cused of fail­ing to pay tax for his law firm be­tween 1996 andnd 2014. he was ap­pointed Court of Ap­peal al Pres­i­dent in Jan­uary 2015.

In his ap­pli­ca­tion, Dr Mos­ito wantss the court to rule that a judge could only be im­peached for of­fenses com­mit­ted while he or she was in of­fice and not be­fore oc­cu­py­ing the post.

how­ever, a panel of three judges from m South Africa — Jus­tices Tati Mof­fat Mak­goka, Naran­dran Kol­lapen and Wen­dyndy hughes — on Tues­day re­served judg­ment­ment in the case.

It was af­ter Dr Mos­ito’s lawyers urged ed the court to rule in their favour, while lawyer­sawyers rep­re­sent­ing the At­tor­ney Gen­eral, Prime Min­is­ter and Ju­di­cial Ser­vice Com­mis­sion, is­sion, as re­spon­dents, asked the court to dis­mis­sis­miss the ap­pli­ca­tion.

The fourth re­spon­dent is the Law So­ci­ety of Le­sotho, but it did not par­tic­i­pate in the pro­ceed­ings.

Ad­dress­ing the court on Tues­day, Ad­vo­cate Ranale Thoahlane in­sisted the law should be in­ter­preted to mean a judge could only be im­peached for mis­con­duct he or she com­mit­ted when he or she had been ap­pointed judge.

“It is our view that the Prime Min­is­ter, at the time of ap­point­ing a judge, has taken all rel­e­vant is­sues into con­sid­er­a­tion be­fore ap­point­ing a judge.

“We sub­mit that what should hap­pen is once ap­pointed, a judge can­not be ques­tioned about what hap­pened in the past,” Ad­vo­cate Thoahlane said.

But Jus­tice Mak­goka in­ter­jected and asked: “But what if the judge is con­victed on some­thing that hap­pened be­fore his in­cum­bency?”

In re­sponse, Ad­vo­cate Thoahlane said whether the judge should be re­moved from of­fice or not should then de­pend on the grav­ity of the of­fense.

“If the con­vic­tion is of such a na­ture that it can­not be rec­on­ciled with the of­fice of the pres­i­dent, he can be r re­moved. “But what hap­pened­hap­pene be­fore he was a judge is not what is en­visag en­vis­aged by sec­tion 125 of the Con­sti­tu­tion,” he said.said Sec­tion 125 of the con­sti­tu­tion gives the Prime Min­is­ter the po pow­ers to ad­vice the King to es­tab­lish a tri­bunal­tri­buna to in­ves­ti­gate a judge for im­peach­ment purp pur­poses. Ad­vo­cate Mon­a­hengMon­a­hen Rasekoai, who also rep­re­sented Dr Mos­ito,Mos­ito said the Prime Min­is­ter’s de­ci­sion to suspe sus­pend Dr Mos­ito should be re­viewed and set asideasi be­cause he was not given rea­sons for the move. how­ever, theth lawyer rep­re­sent­ing the At­tor­ney G Gen­eral and Prime Min­is­ter, Se­nior Coun­sel Guido Pen­zhorn, said fail­ure by the Prime Min­is­ter t to give rea­sons for the sus­pen­sion­sus­pen­sio did not make the de­ci­sion il­le­gal.ille “This i is par­tic­u­larly so be­cause the ap­pli­cant did not deny the al­le­ga­tion­sal­leg lev­elled against him,” he said. The lawyerla rep­re­sent­ing the JSC, King’sK Coun­sel Motiea Teele s said the mat­ter should be re­ferre­dre to the tri­bunal that has al­ready been es­tab­lishedtabl to in­ves­ti­gate Dr M Mos­ito for pos­si­ble im­peach­ment.peac how­ever,ho Jus­tice Mak­goka re­served judg­ment to a ad date to be an­nounced in dued course. In his no­tice of mo­tion be­fore the court, Jus­tice Mos­ito wants “a declara­tory that upon the proper con­struc­tion of Sec­tion 125 of the con­sti­tu­tion of Le­sotho, judges are sub­ject to sus­pen­sion and/or re­moval only for rea­sons of in­ca­pac­ity or mis­be­hav­ior that ren­ders them un­fit to dis­charge their du­ties and which con­duct or omis­sion must have oc­curred dur­ing the judge’s oc­cu­pancy”. The no­tice con­tin­ues: “A tri­bunal con­tem­plated in terms of Sec­tion 125 can only be ap­pointed to in­ves­ti­gate con­duct or mis­be­hav- iour and/or in­abil­ity to per­form func­tions of the judge’s of­fice which arose dur­ing the oc­cu­pancy of the judge’s of­fice.”

Sec­tion 125 (3) and (4) of the Le­sotho Con­sti­tu­tion be­ing re­ferred to, reads: “An ap­pointed judge may be re­moved from of­fice only for in­abil­ity to per­form the func­tions of his of­fice (whether aris­ing from in­fir­mity of body or mind or any other cause) or for mis­be­hav­ior and shall not be so re­moved ex­cept in ac­cor­dance with the pro­vi­sions of this sec­tion.

It is our view that the Prime Min­is­ter, at the time of ap­point­ing a judge, has taken all rel­e­vant is­sues into con­sid­er­a­tion be­fore ap­point­ing a judge. We sub­mit that what should hap­pen is once ap­pointed, a judge can­not be ques­tioned about what hap­pened in the past

“An ap­pointed judge shall be re­moved from of­fice by the King if the ques­tion of his re­moval has been re­ferred by the King to a tri­bunal ap­pointed un­der Sub­sec­tion (5) and the tri­bunal has ad­vised the King that the ap­pointed judge ought to be re­moved from of­fice for in­abil­ity as afore­said or for mis­be­hav­ior.”

In his af­fi­davit, Jus­tice Mos­ito gave a back­ground that led to his ap­pli­ca­tion.

“The present ap­pli­ca­tion is of mon­u­men­tal im­por­tance re­gard­ing the ten­ure of of­fice of judges of the Su­pe­rior Courts (high Court and Court of Ap­peal) in the King­dom of Le­sotho.

“It is aimed at en­sur­ing the in­de­pen­dence of the ju­di­ciary and its in­so­la­tion from in­ter­fer­ence by the ex­ec­u­tive, hence the need to cite the re­spon­dents in this ap­pli­ca­tion,” he stated. Con­tin­ued on Page 9 . . .

Sus­pended Court of Ap­peal pres­i­dent Jus­tice Kananelo Mos­ito.

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