Mos­ito suf­fers ma­jor set­back

Lesotho Times - - Front Page - Tefo Tefo

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.

Newspapers in English

Newspapers from Lesotho

© PressReader. All rights reserved.