COURT OF AP­PEAL SIT­TING IN DIS­AR­RAY

As fresh court ap­pli­ca­tion fur­ther de­lays fi­nal­i­sa­tion of Mos­ito case

Sunday Express - - FRONT PAGE - Tefo Tefo

THE al­ready de­layed sit­ting of the sec­ond ses­sion of the Court of ap­peal has been plunged into fur­ther un­cer­tainty af­ter four lawyers chal­leng­ing Jus­tice kananelo Mos­ito’s reap­point­ment as the apex court’s president now seek to in­clude new par­ties to the case.

The net ef­fect of the lat­est ap­pli­ca­tion is a fur­ther de­lay in the sit­ting of the Court of ap­peal with a di­rect im­pact in the ad­min­is­tra­tion of jus­tice in Le­sotho since it is the high­est court in the land.

Ac­cord­ing to well-placed sources, over a dozen cases from the High Court and the Com­mer­cial Divi­sion of the High Court await hear­ing in the Court of ap­peal.

The four lawyers, king’s Coun­sel Zwe­lakhe Mda, karabo Mo­hau, Motiea Teele and at­tor­ney Qhale­hang Let­sika, seek to shore up their sub­stan­tive case, in which they seek to nul­lify Jus­tice Mos­ito’s reap­point­ment, before the Con­sti­tu­tional Court by rop­ing in the Law So­ci­ety of Le­sotho and king Let­sie iii.

By join­ing the two par­ties to the case, the lawyers want to avoid hav­ing the sub­stan­tive case dis­missed on a le­gal tech­ni­cal­ity called non-join­der of party; re­fer­ring to the omis­sion of a nec­es­sary party to an ac­tion.

In the sub­stan­tive case, the so­lic­i­tors are chal­leng­ing the va­lid­ity of Jus­tice Mos­ito’s reap­point­ment as Court of ap­peal president by Prime Min­is­ter, Thomas Tha­bane, on 1 au­gust 2017.

Jus­tice Mos­ito had bounced back eight months af­ter he was forced to re­sign to avoid im­peach­ment over tax eva­sion charges by the Pakalitha Mo­sisili-led for­mer gov­ern­ment.

Two weeks af­ter his reap­point­ment, the four lawyers lodged a con­sti­tu­tional ap­pli­ca­tion in which they ar­gue that Dr Tha­bane did not fol­low due process when he ad­vised His Majesty to re-ap­point Jus­tice Mos­ito.

They also con­tend that the re­moval of his pre­de­ces­sor, Jus­tice Robert nu­gent, to ac­com­mo­date Jus­tice Mos­ito was il­le­gal.

The lawyers aver that Jus­tice nu­gent’s re­moval did not fol­low the due process of law be­cause he was not given a hear­ing, while a tri­bunal to re­move him from the po­si­tion was also not estab­lished as a con­sti­tu­tional re­quire­ment. Jus­tice nu­gent had been ap­pointed to the helm of the apex court in May this year.

Jus­tice Mos­ito, Dr Tha­bane, Min­is­ter of Law and Con­sti­tu­tional af­fairs Le­bo­hang Hlaele, Min­is­ter of Jus­tice and Hu­man Rights Ma­hali Phamotse and the At­tor­ney-Gen­eral are the first to fifth re­spon­dents re­spec­tively.

The le­gal chal­lenge re­sulted in the halt­ing of Jus­tice Mos­ito’s swear­ing-in as president of the apex court on 18 au­gust 2017. as a re­sult, the Court of ap­peal’s sec­ond ses­sion, which nor­mally sits in Oc­to­ber, will not be as­sem­bled un­til the mat­ter is re­solved. The president assem­bles the Court of ap­peal and sets the dates for its sit­tings.

The sub­stan­tive case was sched­uled for hear­ing by the High Court in its sit­ting as a Con­sti­tu­tional Court on Wed­nes­day ac­cord­ing the High Court’s as­sis­tant Regis­trar Stafford Sharite.

How­ever, last Thurs­day, the four so­lic­i­tors filed an­other ap­pli­ca­tion seek­ing the join­ing of the Law So­ci­ety of Le­sotho and king Let­sie iii to the case.

“The case will not be heard as sched­uled before, in or­der to give the Law So­ci­ety of Le­sotho an op­por­tu­nity to file its pa­pers with re­gard to this new ap­pli­ca­tion. Fresh dates will have to be set con­sid­er­ing the new de­vel­op­ments in the mat­ter,” he said.

The four lawyers had also roped in Jus­tice nu­gent, but im­me­di­ately with­drew him from the case af­ter he re­fused to co­op­er­ate.

Atty Let­sika told the Sun­day Ex­press yes­ter­day that Jus­tice nu­gent, who is a re­tired South african Supreme Court of ap­peal judge, re­fused to be as­so­ci­ated with the case when con­tacted by the lawyers.

“Jus­tice nu­gent wrote to our lawyers that he was not in­ter­ested in the mat­ter since he has al­ready re­signed,” he said, adding that the South african judge also sent them a copy of his res­ig­na­tion let­ter.

“On Fri­day, our lawyers filed a no­tice in the Con­sti­tu­tional Court to with­draw Jus­tice nu­gent in light of his re­sponse.”

Law So­ci­ety of Le­sotho President, Tu­misang Mosotho, yes­ter­day told this pub­li­ca­tion they in­tended to chal­lenge the ap­pli­ca­tion seek­ing to join them in the case.

“We are strongly op­posed to that ap­pli­ca­tion be­cause we don’t want to be drawn into that con­fu­sion,” he said.

“If they wanted us to be part of it, they could have ini­tially con­sulted us so that we could dis­cuss and see how best to deal with it. now, they want to make us part of what they have started alone; we can­not agree to be drawn in that mat­ter at this stage.”

Asked on the im­pli­ca­tions of the lat­est ap­pli­ca­tion to the sit­ting of the sec­ond ses­sion of the Court of ap­peal, atty Mosotho said “it wors­ened an al­ready bad sit­u­a­tion”.

“But, for our part, we are do­ing all we can to find ways to en­sure that the Court of ap­peal func­tions as ex­pected.

“For in­stance, we have writ­ten to the prime min­is­ter about the mat­ter and we are still wait­ing for an au­di­ence with him to dis­cuss and find ways to deal with the prob­lem.”

Atty Mosotho also in­di­cated that the lawyers’ body wrote a let­ter to Chief Jus­tice, Nthomeng Ma­jara, last month com­plain­ing about the un­cer­tainty over the sit­ting of the sec­ond ses­sion of the Court of ap­peal.

Jus­tice Ma­jara then re­ferred the Law So­ci­ety of Le­sotho to Dr Tha­bane.

“We found that an­swer very un­sat­is­fac­tory,” atty Mosotho told the Sun­day Ex­press’s sis­ter pa­per, Le­sotho Times.

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

How­ever, not long af­ter Jus­tice Mos­ito’s ap­point­ment, king Let­sie iii ap­pointed a three-mem­ber tri­bunal in Fe­bru­ary 2016, at the ad­vice of then pre­mier Pakalitha Mo­sisili, to in­ves­ti­gate him for al­legedly fail­ing to pay in­come tax be­tween 1996 and 2014.

The tri­bunal was com­prised of Chair­per­son, Jus­tice Fred­erik Daniel Ja­cobus Brand, Jus­tice noel Vic­tor Hurt, and Jus­tice John god­frey Fox­croft all from South africa. The tri­bunal com­pleted its pro­ceed­ings on 20 Oc­to­ber, 2016 and sub­mit­ted its re­port to king Let­sie iii.

Jus­tice Mos­ito re­signed before a ver­dict was an­nounced on his fate, cit­ing al­leged per­se­cu­tion by Dr Mo­sisili and at­tor­ney­gen­eral Tšokolo Makhethe (KC).

Ten days af­ter his res­ig­na­tion – on 23 De­cem­ber 2016 – Dr Mos­ito was is­sued a let­ter from king Let­sie iii’s Se­nior Pri­vate Sec­re­tary, Mane­hela Phosholi, an­nounc­ing his re­moval as Court of ap­peal president.

Dr Mos­ito’s re­moval also ap­peared as Le­gal no­tice no. 156 of 2016 in the gov­ern­ment gazette Vol­ume 61 of 23 De­cem­ber 2016 ti­tled: “Re­moval of President of Court of ap­peal no­tice, 2016”.

Dr Mos­ito has since ar­gued the gov­ern­ment gazette and a let­ter from the royal palace sec­re­tariat declar­ing his re­moval from the helm of the apex court were “null and void” since they were is­sued af­ter he had al­ready re­signed.

He said the move was pos­si­bly meant to hu­mil­i­ate him and taint his im­age. Dr Mos­ito also said the let­ter was “full of ir­reg­u­lar­i­ties and flouted pro­ce­dures” fol­lowed when re­mov­ing a Court of ap­peal president.

His Majesty then ap­pointed Jus­tice nu­gent to suc­ceed Jus­tice Mos­ito.

JUS­TICE Kananelo Mos­ito

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