Mosito suffers major setback
IN yet another massive blow to Justice Kananelo Mosito’s fight against impeachment, Chief Justice Nthomeng Majara yesterday refused to suspend the ongoing tribunal against the suspended Court of Appeal president until a High Court application he filed on Tuesday is finalised.
Justice Majara also refused to treat Justice Mosito’s application as an urgent application. She ruled that the application should follow the normal procedure for cases filed in the High Court.
The ruling paves the way for the continuation of the impeachment tribunal established to investigate the suspended Court of Appeal president’s alleged violation of tax laws.
The tribunal is comprised of chairperson Justice Frederik Daniel Jacobus Brand, Justice Noel Victor Hurt, and Justice John Godfrey Foxcroft all from South Africa.
It was appointed by King Letsie III in February this year, at the advice of Prime Minister Pakalitha Mosisili, to investigate Justice Mosito who is accused of failing to pay income tax between 1996 and 2014.
Justice Mosito was appointed Court of Appeal president in January 2015.
The tribunal, which had adjourned on 15 August 2016, resumed work on Monday this week. Justice Mosito’s lawyer, Advocate Monaheng Rasekoai, argued on Monday that there were “constitutional issues” his client wanted the High Court to decide on.
One of the “constitutional issues” Justice Mosito wants the High court to decide on is his “apprehension” that the tribunal was not treating him fairly during the proceedings.
The allegation of unfair treatment was briefly raised by Justice Mosito during the tribunal proceedings when he took Justice Brand to task that he was not treating Advocate Rasekoai fairly.
Tempers flared during the proceedings as Justice Brand kept on interjecting when Advocate Rasekoai was addressing the tribunal.
After the tribunal refused to refer the “constitutional issues” to the High Court on Tuesday, Justice Mosito filed an urgent application before the High Court on the same day seeking an order to “review, correct and set aside” the decision.
In the interim, he wanted the court to order the stay of the tribunal proceedings until his main application to the High Court had been finalised.
Justice Mosito also wanted the High Court to treat his application as an urgent matter but Chief Justice Majara yesterday dismissed both prayers.
In the main application, Justice Mosito wants the High Court to order the recusal of the members of the tribunal on the basis they were not properly selected. He alleges the South African judges were appointed by Attorney-general King’s Counsel (KC) Advocate Tšokolo Makhethe who he argues has no constitutional power to do so.
Justice Mosito avers such power is only vested in the prime minister “in whom the discretionary power is vested must himself exercise that power in the absence of the right to delegate”. He thus argues Dr Mosisili abdicated the “discretionary power vested in the prime minister in favour of the attorney-general”.
Justice Mosito also alleges KC Adv Makhethe had “endeavoured in vain” through vigorous politicolegal and diplomatic attempts to have the suspended Court of Appeal president’s appointment nullified “but all these came to naught”.
He alleges KC Adv Makhethe “went out of his way” to mobilise from government ministries “M14 million worth of taxpayers’ money to finance the legal battles he is waging against me”.
Justice Mosito also wants the court to rule that Dr Mosisili is not empowered to appoint a pro forma complainant in the tribunal. The premier appointed lawyers from Webber Newdigate law firm as pro forma complainants on his behalf in the tribunal proceedings.
Justice Mosito argues that a “proper interpretation” of section 125 of the Constitution reveals he is entitled to legal representation “in proceedings such as the present”.
Justice Mosito then accuses KC Adv Makhethe of refusing to give his lawyers funds “on the basis of government’s impecuniosity and bureaucratic red tape delays” to enable his defence to instruct a senior counsel chosen by the suspended Court of Appeal president from outside the country to represent him.
He further argues that the attorney-general’s “refusal” to avail the funds to bankroll his legal defence contravened section 12(8) of the Constitution.
Advocate Rasekoai had on Monday applied for a postponement of the tribunal proceedingsceedings until Adv KC Makhethe had ad deposited M500 000 into Justice Mosito’s attorney’s trust fund for himm to secure a senior counsel from outsideside the country.
But the tribunal nal refused to postpone the proceedings dings and Justice Mosito being dissatisfied issatisfied with the ruling also included the issue in his Highh Court application.
Justice Mosito to also wants the High Court to declare that thee tribunal’s decision to use his tax information “without due observance ance of sections 202 of the Income Tax Act of 1993 as well as 27 of the Lesotho Revenue Authority (LRA) 2001 is s illegal and contravenes the applicant’s right to privacy and fair trial”.
Senior Counsel Guido Penzhorn, from Webber Newdigate, who acts as the pro forma complainant in the tribunal proceedings, on Tuesday submitted the tax information documents to the tribunal.
He said the documents were from the LRA and meant to prove that Justice Mosito did not file tax returns to the revenue authority as his charges before the tribunal allege.
However, Advocate Rasekoai strongly objected to the submission of the tax information on the grounds they violated Justice Mosito’s right to privacy.
But the tribunal ruled against him, but however said it would not consider the details of the documents.
The tribunal said it would only try to ascertain whether there was any filing of tax returns or not.
After the tribunal looked at the tax documents, it made a ruling that, on the face of them, the information indicates that Justice Mosito did not file income tax returns although there might be some reasonable explanation for not filing for some of the years.
The date of hearing for Justice Mosito’s application has not yet been set because the respondents still have to file their answering papers.
The respondents are Justice Brand, Justice Hurt, Justice Foxcroft, Adv KC Makhethe and Dr Mosisili respectively.
SUSPENDED Court of Appeal President Justice Kananelo Mosito
SUSPENDED Court of Appeal president Justice Kananelo Mosito.