Lekhetho Ntsukunyane
Appeal Court President Justice Kananelo Mosito on Tuesday received much-needed support from the High Court in his battle against Prime Minister Pakalitha Mosisili.
The premier last week gave Dr Mosito seven days to give reasons why he should not be fired for “misbehavior and/or inability to perform the functions of your office”.
In a letter dated 8 October 2015, Dr Mosisili told Justice Mosito he had learnt of “adverse” allegations of tax violations against the judge hence his intention to remove him from office.
Dr Mosisili’s letter reads in part: “It has come to my notice that adverse allegations of violations of the Income Tax Act of 1993 have been levelled against you.
“You will agree with me that it is inimical to the administration of justice and integrity of the judiciary that the incumbent of the high judicial office of the President of the Court of Appeal be under a cloud.
“Consequently, I am considering whether to represent to His Majesty King Letsie III that the question of your removal from office be investigated in terms of Section 125 (5) of the Constitution.
“I hereby invite you to make written representations, if you are so inclined, as to why I should not request His Majesty to appoint a tribunal in terms of Section 125 (5) of the Constitution to inquire into your removal from office for misbehaviour and/or inability to perform the functions of your office. Kindly direct any such representations to my office within seven days of the receipt of this letter.”
However, instead of responding to the ultimatum, Dr Mosito on Tuesday filed an urgent application before the High Court seeking an order suspending Dr Mosisili’s letter until the Constitutional Court has finalized his case pertaining to the tax allegation.
In the Constitutional Case in question, Justice Mosito challenged the decision by the Director of Public Prosecutions (DPP), King’s Counsel Leaba Thetsane, to prosecute him for the alleged late filing of tax return forms for his law firm, KEM Chambers, for the past 19 years.
The case is pending before the court and is set for hearing on 2 November 2015.
On Tuesday, High Court Justice Thamsanqa Nomncqongo issued an interim order suspending Dr Mosisili’s letter pending the finalisation of Justice Mosito’s constitutional challenge.
In his founding affidavit filed before the High Court, Justice Mosito noted: “I have been and am the President of the Court of Appeal of Lesotho having been duly appointed in terms of the Constitution of the Kingdom of Lesotho on 15 January 2015.
“Subsequent to my appointment, the First Respondent (Advocate Makhethe KC) challenged my appointment in the courts of Lesotho questioning its constitutionality and legality. His challenge failed as the Court of Appeal definitively put an end to the matter on 12 June 2015…”
Justice Mosito further notes that on 20 July, the Court of Appeal held its first session under his presidency and handed down judgements on 7 August.
“On 10 August 2015, in the morning hours, I heard over a radio station named Tšenolo FM (a radio station evidently aligned to the ruling Democratic Congress) that there were moves to pursue tax charges against a Court of Appeal judge and that the charges would be brought to the courts soon.
“This was said within the context of persons who were intended to be removed from their respective offices because they had been allegedly appointed under the previous coalition government headed by former prime minister, Thomas Thabane.
“This sent a clear message to me that reference to such a judge was reference to me. However, I ignored that information but took it as a signal that there were attempts in the offing aimed at manufacturing and fabricating tax charges against me with a view to remove me from office,” Justice Mosito noted in the affidavit.
On 21 August 2015, Justice Mosito indicated that the DPP charged him with income tax violation.
“I immediately prepared a constitutional motion challenging the said prosecution. On 28 August 2015, I received a notice of trial which required me to appear before the High Court on 31 August (2015) to answer the said charges.”
Dr Mosito indicated he went to the court on the said date, but also filed a constitutional motion “to stay the criminal prosecution pending final determination of the constitutional case…”
An interim order staying the prosecution was granted, the judge added.
“Papers were filed by parties in the matter and the hearing date of the constitutional motion was fixed at 5 November 2015 (the case was rescheduled to 2 November). I may mention that in the constitutional motion, I had complained that the DPP was not entitled, under the constitution, to have instituted the criminal prosecution against me without my having first been proceeded against in terms of Section 125 (5) of the Constitution of Lesotho.
“I argued that the prosecution could only be instituted against me after the process contemplated by the said section would have been finalised. Apparently, the DPP and Attorney General saw merit in this complaint and, as legal representatives of the Lesotho government, advised the Second Respondent (Prime Minister) to proceed against me in terms of the said section.”
Justice Mosito noted further that on the evening of 8 October 2015, the Government Secretary arrived at his residence and delivered a letter from Dr Mosisili.
“In the annexure (letter), it became clear that the Second Respondent had proceeded by way of Section 125 (5) of the Constitution as an afterthought after having learned of the constitutional nature of my complaint. It will be realised from the annexure that the Second Respondent is calling upon me to show cause why he should not request the King to appoint a tribunal to inquire into the alleged tax transgressions against me, which form the basis of both the constitutional case and the criminal case mentioned above.
“In other words, the Second Respondent contemplates requesting His Majesty to appoint a tribunal to inquire into matters that are sub judice. What this means, therefore, is that the Second Respondent is calling upon me to show cause why a tribunal should not be appointed to ascertain the validity, veracity and propriety of the tax allegations levelled against me but which are currently the subject of consideration by the High Court as they are pending in both the constitutional and criminal cases.
“I verily aver that the Second Respondent’s resort to Section 125 (5) of the Constitution to have a tribunal investigate sub judice matters does not only create a situation in which such a tribunal would be contemptuous of the High Court in so proceeding, but also clearly undermines the rule of law which requires that there should be no interference with the judicial decision-making process by the executive. I aver that in so doing, the Second Respondent’s move undermines the separation of powers and independence of the judiciary.”
Meanwhile, Advocate Haae Phoofolo (KC), who represents Justice Mosito in the case, on Tuesday told the Lesotho Times that although the High Court had ruled in their favour, the battle was far from over.
“We anticipate that the government will quickly file a response in which they will also want the court to hear this matter within 48 hours.
“They have that right. They might do this because they want to make sure when the tax case is heard next month, Justice Mosito would no longer be president of the Court of Appeal so that their case will no longer be unconstitutional.”
