Busi­ness­man takes tax case to Concourt

Lesotho Times - - News - Tefo Tefo

PROM­I­NENT busi­ness­man Bothata Mahlala who stands ac­cused of vi­o­lat­ing tax laws has filed an ap­pli­ca­tion to have the case re­ferred to the Con­sti­tu­tional Court for de­ter­mi­na­tion of the le­gal­ity of the charges.

Mr Mahlala is fac­ing 12 charges of vi­o­lat­ing tax laws by al­legedly fail­ing to sub­mit his in­come tax re­turns to the Le­sotho Rev­enue Au­thor­ity (LRA) since 2005.

He first ap­peared be­fore the Mag­is­trate Court on 29 Au­gust 2016 when the charges were pre­ferred to him and he was re­leased on bail.

The case has been post­poned on nu­mer­ous oc­ca­sions and when the trial was sup­posed to com­mence on 5 July 2017, Mr Mahlala ap­plied to have the le­gal­ity of the charges re­ferred to the High Court sit­ing as a Con­sti­tu­tional Court for de­ter­mi­na­tion.

On Mon­day Mr Mahlala’s lawyer Ad­vo­cate Mon­a­heng Rasekoai urged the Mag­is­trate’s Court to re­fer some pro­vi­sions of the In­come Tax Act to the High Court for in­ter­pre­ta­tion to as­cer­tain if the charges pre­ferred against his client were le­git­i­mate.

Ad­vo­cate Rasekoai said he wanted the Con­sti­tu­tional Court to in­ter­pret sec­tion 128 of the con­sti­tu­tion, ar­gu­ing the sec­tion al­lows the Mag­is­trate’s Court to re­fer a point of law to the High Court for de­ter­mi­na­tion.

Sec­tion 128 (1) reads: “Where any ques­tion as to the in­ter­pre­ta­tion of this con­sti­tu­tion arises in any pro­ceed­ings in any sub­or­di­nate court or tri­bunal and the court or tri­bunal is of the opin­ion that the ques­tion in­volves a sub­stan­tial ques­tion of law, the court or tri­bunal may, and shall, if any party to the pro­ceed­ings so re­quests, re­fer the ques­tion to the High Court.”

Ad­vo­cate Rasekoai said: “The im­port of this sec­tion is that this court be­ing a sub­or­di­nate court ought to make a de­ter­mi­na­tion whether there is an is­sue of law that war- rants a re­fer­ral to the High Court.

“This court is not en­joined to ex­plore the con­sti­tu­tion­al­ity of the points we want to in­ter­ro­gate”.

The sole is­sue for de­ter­mi­na­tion is whether the points we raised are sub­stan­tial points of law that have to be in­ter­ro­gated by the High Court,” he said.

He said he wanted the Con­sti­tu­tional Court to give proper in­ter­pre­ta­tion of the in­come tax laws sec­tion that pro­vides that a tax payer has the onus to prove his or her in­no­cence as op­posed to the gen­eral prin­ci­ple in crim­i­nal lit­i­ga­tion which stip­u­lates that the bur­den lies with the pros­e­cu­tion to prove its case against an ac­cused per­son be­yond rea­son­able doubt.

He con­sid­ered the said pro­vi­sion of law as the ‘dra­co­nian’ law.

“The sec­tion cre­ates what one calls re­verse onus.

“Nor­mally in crim­i­nal lit­i­ga­tion the onus lies with the pros­e­cu­tion, but with this law the one who is at fault bears onus to prove him­self in­no­cent.

“This is what one could call – for lack of a bet­ter word – a dra­co­nian law.

“This pro­vi­sion is no longer ten­able in our con­sti­tu­tion,” he said.

Ad­vo­cate Rasekoai added: “We re­main firm that this is a sub­stan­tial point of law that has to be in­ter­ro­gated.”

He fur­ther ar­gued he wanted the mat­ter re­ferred to the Con­sti­tu­tional Court be­cause he wanted it to re­view the de­ci­sion of the Di­rec­tor of Public Pros­e­cu­tions (DPP) to pros­e­cute his client.

He said it is only the Con­sti­tu­tional Court that has pow­ers to re­view the de­ci­sions of the DPP.

In re­sponse the lawyer pros­e­cut­ing the case Ad­vo­cate Let­sipa Mofi­l­ikoane sub­mit­ted there was no point of law to be re­ferred to the Con­sti­tu­tional Court.

He charged it would only be cor­rect to re­fer a point of law to the con­sti­tu­tion if there was a con­sti­tu­tional pro­vi­sion of law to be in­ter­preted.

Ad­vo­cate Mofi­l­ikoane said: “This hon­ourable court has pow­ers to in­ter­pret any point of law raised be­fore it.

“But, we are not say­ing it has pow­ers to in­ter­pret the con­sti­tu­tion, but when it comes to or­di­nary stat­ues this court has pow­ers to in­ter­pret such statutes.”

Ad­vo­cate Mofi­l­ikoane said Mr Mahlala made an ap­pli­ca­tion to re­fer some points of law to the Con­sti­tu­tional Court as a de­lay­ing tac­tic.

He said the DPP had pow­ers to pre­fer charges on any­one as pro­vided for by the con­sti­tu­tion.

“If the ap­pli­cant wants to re­view the de­ci­sion of the DPP he can­not do so un­der sec­tion 128 (of the con­sti­tu­tion).

“He only wants to do this to de­lay the crim­i­nal trial he is fac­ing.

“He doesn’t have to call for con­sti­tu­tional in­ter­pre­ta­tion if he is gen­uinely chal­leng­ing the de­ci­sion of the DPP,” he sub­mit­ted.

How­ever, the Mag­is­trate Monyake Hla­banyane re­served his rul­ing to 7 Au­gust 2017.

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