Billy Ntaote
THE High Court has set 26 January 2016 as the date for hearing a case in which Court of Appeal President, Justice Kananelo Mosito, is battling to prevent Prime Minister Pakalitha Mosisili from establishing an impeachment tribunal against him.
The date was set after Justice Mosito’s lawyer, Advocate Monaheng Rasekoai, and the lawyers representing Dr Mosisili, Attorney-General Tšokolo Makhethe and Director of Public Prosecutions (DPP) Leaba Thetsane (King’s Counsel) appeared before Chief Justice Nthomeng Majara on Monday to map the way forward regarding the case.
Justice Mosito obtained an interim court order in the High Court on 30 December 2015 preventing Dr Mosisili from establishing a tribunal to preside over his impeachment hearing. The Court of Appeal president sought the temporary reprieve after learning that Government Secretary, Lebohang Ramohlanka, had written to three prominent South African judges requesting them to preside over an impeachment tribunal that would be set up by King Letsie III at the instigation of the premier.
Dated 28 December 2015, the letters were addressed to Justices Frederik Daniel Jacobus Brand, Noel Victor Hurt and John Godfrey Foxcroft.
Part of the letter written to Justice Brand reads: “I write to inform your lordship that it has pleased the Right Honourable the Prime Minister to select you to be a member of the tribunal and its chairman on the following terms and conditions:
– Payment of M20 000 sitting allowance per day or part thereof, of the sitting days of the tribunal.
– Payment of M10 000 research and preparation allowance per day or part thereof, of the sitting and non-sitting days of the tribunal.”
The two other judges would be members of the tribunal and each get a M15 000 daily sitting allowance and M8 000 for research and preparation.
The move to impeach the Court of Appeal president was prompted by the preferring of criminal charges against him by DPP Advocate Thetsane 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.
Dr Mosisili had subsequently written to Justice Mosito, in a letter dated 8 October 2015, effectively telling the Court of Appeal President that because of the “adverse” allegations of tax violations against him, he was unfit to remain in office as he had violated the very law that he had sworn to uphold.
Justice Mosito then launched a series of court actions to save his job in which his lawyers argued that he was being victimized by the coalition government because he was an appointee of former premier Thomas Thabane.
However, Justice Mosito lost a Constitutional Court bid to quash the tax-evasion charges and impeachment proceedings against him on 15 December 2015, after three South African judges presiding over the case ruled that the DPP and premier were within their rights to proceed with the criminal charges.
He, however, appealed against the decision on 16 December 2015 and filed an application to stay the execution of the judgment.
The invitations for the three SA judges were made seven days after Justice Mosito wrote a letter to Dr Mosisili in response to the premier’s request on 16 December 2015 for the Court of Appeal president to submit reasons in writing why a tribunal should not be established.
In his letter dated 21 December 2015, Justice Mosito said the premier should not proceed with the impeachment until his application to stay the judgment of the Constitutional Court ruling was finalised.
“For the following reasons it would, in my opinion, be inappropriate for the Prime Minister to proceed to request His Majesty, the King to appoint a tribunal.
“Firstly, on 17 December 2015, the Prime Minister undertook through his counsel Advocate G. (Guido) Penzhorn SC before the Chief Justice Nthomeng Majara, that he would not execute the judgement of the High Court pending finalisation of the stay proceedings.
“I was surprised to receive the Prime Minister’s letter few hours later seeking to enforce that judgment.
“Secondly, an appointment of a tribunal to deal with matters pending before the Court of Appeal undermines the sub judice rule and the rule of law.”
