SA judge appointed acting appeal court president



Tefo Tefo

Retired South African judge, Justice Ian Gordon Farlam (77), has been appointed Acting President of the Lesotho Court of Appeal.

His appointment follows the recent suspension of Justice Kananelo Mosito who had been head of the apex court since January 2015.

Dr Mosito was put on indefinite suspension on 12 February to allow investigations into his fitness to hold office to commence after he was charged with tax evasion.

According to a government gazette dated 19 February 2016, Justice Farlam’s appointment was with effect from 22 February 2016.

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

According to the office of the Government Secretary, Dr Mosito’s suspension was meant “to protect the courts’ dignity”.

Meanwhile, Dr Mosito’s suspension followed a letter written by Prime Minister Pakalitha Mosisili on 8 February 2016, in which he noted his intention to advise the King to suspend him.

In the letter, Dr Mosisili gave Justice Mosito seven days to show cause why he should not go ahead with his advise.

Part of the premier’s correspondence reads: “In the circumstances, I intend to advise His Majesty the King to suspend you from office and exercise of its functions, pursuant to section 125(7) of the constitution.

“In my view, it is inimical to the administration of justice and integrity of the judiciary that in all the circumstances of your case, you should still continue being in office and exercising the functions thereof.

“However, I invite you to make representations, showing cause, if any, why I cannot proceed as indicated above.”

On 4 February 2016, Dr Mosisili had also written to the judge regarding the same issue.

In the letter, titled ‘Enquiry in terms of Section 125 of the Constitution’, the premier informed Justice Mosito that he had advised the King to establish a tribunal to investigate his conduct and which could lead to his impeachment.

The letter read in part: “My letters of 8 October 2015 and 16 October 2015, including yours of 21 December 2015, bear reference. Further, in the same connection, reference is to the Court of Appeal decision and order of 26 January 2016, whose effect was to refuse your application that the intended enquiry under Section 125 of the constitution, be halted.”

Dr Mosisili was referring to Justice Mosito’s failed Constitutional Court bid to prevent the premier from establishing the impeachment tribunal against him.

The prime minister said it was against this background that he advised the King to establish the tribunal.

“Therefore, you are hereby notified that His Majesty the King has appointed a tribunal in terms of Section 125(5) of the Constitution to enquire into the question of your removal from office for misbehaviour or inability to perform the functions of your office as the President of the Court of Appeal, to which office you were appointed on 15th January, 2015,” he said.

The prime minister then announced the names of members of the tribunal, who are all from South Africa. The judges are Justice Frederik Daniel Jacobus Brand, Justice Noel Victor Hurt, and Justice John Godfrey Foxcroft.

According to Dr Mosisili’s letter, the tribunal will begin its work on 9 March 2016.

In the correspondence, Dr Mosisili also outlines why he wants Justice Mosito out of office.

“During the period 1996 – 2014, and while you were a practicing advocate and taxpayer as defined in Section 3 of the Income Tax Act, (‘the Act’), you did fail to render a return of income tax for each succeeding year of assessment (‘fiscal year’) on or before 30 June of the following year, to wit, on 19 occasions, in contravention of Section 128(2) read with Section 175(1) of the Act, and were only registered as a taxpayer with the Lesotho Revenue Authority (LRA) for the first time on 20 April 2015,” he said.

“Such conduct constituted misbehaviour rendering you unfit to continue in office and also renders you unable to properly perform your functions as President of the Court of Appeal.”

The premier also took exception to Justice Mosito’s argument that some top lawyers had not paid income tax and that his prosecution was discriminatory.

To prove his point that he was being discriminated against, the judge in October last year requested the Constitutional Court to compel the LRA to disclose the tax status of all High Court and Court of Appeal judges, as well as five of the country’s top lawyers.

Dr Mosisili charged in his letter: “Such investigations were conducted without the knowledge or consent of the subjects of the investigations.

“Such investigations contravened the secrecy provisions of Section 202 of the Act and constituted misbehavior, rendering you unfit to continue in office.”

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