COURT of Appeal President, Justice Kananelo Mosito, yesterday appealed a High Court ruling allowing his prosecution for allegedly evading tax for 19 years.
Justice Mosito’s legal representative, Advocate Monaheng Rasekoai, filed a notice to appeal in the Court of Appeal after Chief Justice Nthomeng Majara ruled on Tuesday that Director of Public Prosecutions (DPP) Leaba Thetsane(King’s Counsel) was within his rights to proceed with the criminal charges.
Advocate Thetsane preferred criminal charges against Justice Mosito on 21 August 2015 for allegedly not paying tax for his legal firm from 1996 to 2014.
Justice Mosito is charged with violating provisions of the Income Tax Act of 1993, and Criminal Procedure and Evidence Act of 1981. According to the charges, Justice Mosito never registered with the tax authorities as required by the law and only did so on 20 April 2015.
However, the Court of Appeal president on 30 August 2015 filed a constitutional case to have the charges dropped, arguing the charges against him were “discriminatory and malicious”.
He also challenged a letter written by Prime Minister Pakalitha Mosisili asking him to show cause why he should not be impeached because of the tax accusation.
In her ruling, Chief Justice Majara said the initiation of criminal proceedings against Justice Mosito, before his removal from office had been completed, violated his constitutional rights and his right to judicial independence.
“In our view, judges occupy a special and important position in our society. Such a position is recognized by the Constitution and in order to protect their judicial independence, the Constitution affords judges a procedure in which they may not be arbitrarily removed from office,” she said.
However, Chief Justice Majara noted that the constitutional procedure did not give judges supremacy over the DPP since the latter position was not subject to the direction or control of any person or authority.
“In terms of Section 99 (2) (a) (of the Constitution), the DPP has the power to institute and proceed with criminal proceedings against any person before any court (other than a court martial) in respect of any offense alleged to have been committed by that person,” she said.
“It would, therefore, be a clear violation of the Constitution if we were to find that the DPP cannot institute proceedings against Dr Mosito. . .”
Chief Justice Majara argued that the removal of Justice Mosito from office from criminal conduct and the institution of criminal proceedings against him were two separate processes emanating from the exercise of two different functions.
“The criminal prosecution is intended to prosecute a judge for his/her alleged misconduct and the sec 125 (3) to (7) process to investigate the suspension or removal of a judge from office. The prime minister is, in terms of sec 125 of the Constitution, entitled to invoke the provisions of that section of the Constitution at any time he or she becomes aware that such process ought to be commenced with,” she said.
“Although Dr Mosito is the present sitting president of the Court of Appeal, he approached this court in the main application as a private individual in an attempt to enforce certain constitutional rights.”
Chief Justice Majara added: “We therefore have to conclude that the process followed by the DPP in indicting Dr Mosito in the circumstances of this case is not unconstitutional and should be proceeded with. The rule nisi as such stands to be discharged.
“The conclusion puts to bed the claim by Dr Mosito in the second application. The rule nisi of that application is consequently discharged and the prime minister is allowed, if he so intends to procced with it in terms of Section 125 of the Constitution.”
The following day, Advocate Rasekoai filed a Notice to Appeal the judgement in the Court of Appeal stating that the appellant (Justice Mosito) was “dissatisfied with the whole judgement”.
Part of the appeal, of which Advocate Thetsane and Attorney General (AG) Tšokolo Makhethe are first and second respondents respectively, read: “The court erred in holding as it did that the process envisaged by Section 125 (3)-(7) (of the Constitution) should not precede the institution of criminal proceedings contemplated against a judge such as the appellant.
“The court ought to have held that upon a proper interpretation of the aforesaid section as informed by established legal principles, it was the intention of the framers of the Constitution that a judge should not be prosecuted, convicted and sentenced before he was either suspended from performing the functions of his office or removed from office.”
The appeal also argued that the court erred in ruling that the appellant had failed to show that the criminal prosecution against him was not instigated by the LRA.
“The court ought to have held that, regard being had to the evidence proffered by the first respondents, that he relied on information he obtained from police dockets and, (it being common cause between the parties that there was never an order of court obtained before such information was obtained by the police from the LRA) the first respondent could not competently and lawfully rely on the appellants confidential tax information . . .”
Justice Mosito on yesterday applied for a stay of execution on the judgment whose merits would be argued today.
Senior Counsel Gilbert Marcus and Haae Phoofolo appeared on behalf Justice Mosito, while crown counsel Guido Penzhorn represented the DPP and AG.
North Gauteng High Court, Deputy President Aubrey Ledwaba, Justice Elizabeth Mamoloko Kubushi and Justice David Stephanus Fourie from South Africa presided over the case.