THE Constitutional Court will this Wednesday hear a case in which four lawyers are challenging the reappointment of Justice Kananelo Mosito as President of the Court of Appeal.
Four lawyers, namely, King’s Counsel Zwelakhe Mda, Motiea Teele, Karabo Mohau and Attorney Qhalehang Letsika filed the petition in August this year, barely two weeks after Justice Mosito was re-appointed to the hot seat by King Letsie III on the advice of Prime Minister Thomas Thabane.
Justice Mosito, Dr Thabane, Minister of Law and Constitutional Affairs Lebohang Hlaele, Minister of Justice and Human Rights Mahali Phamotse and the Attorney-General are the first to fifth respondents respectively.
The quartet contend that the removal of his predecessor, Justice Robert Nugent, to accommodate Justice Mosito was illegal.
They are seeking an order declaring that “the removal of Justice Nugent from office as President of the Court of Appeal is null and void and of no force and effect to the extent that it has not met and followed the provisions of section 125 of the constitution”.
Section 125 (3) of the constitution provides that: “An appointed judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour”.
Subsection four of the same section provides that: “An appointed judge shall be removed from office by the king if the question of his removal has been referred by the king to a tribunal appointed under subsection (5) and the tribunal has advised the king that the appointed judge ought to be removed from office for inability or for misbehaviour”.
The four lawyers argue the said provisions of the constitution were not complied with when removing Justice Nugent from office and re-appointing Justice Mosito.
They also want the order that “the decision of the second respondent (Dr Thabane) to recommend the appointment of the first respondent (Justice Mosito) to His Majesty and the subsequent appointment is reviewed and set aside as irregular and unconstitutional”.
The case is the final obstacle to Justice Mosito’s swearing-in.
The High Court on 25 October 2017 cleared him on charges relating to the breach of tax laws which the former seven parties’ coalition government had used as a basis to remove him from office.
They accused him of violating tax laws by allegedly failing to submit his income tax returns to the Lesotho Revenue Authority (LRA) from 1996 to 2014.
The former government advised King Letsie III who subsequently appointed a three-member tribunal in February 2016 to investigate Justice Mosito for allegedly failing to pay income tax.
The tribunal was comprised of Chairperson, Justice Frederik Daniel Jacobus Brand, Justice Noel Victor Hurt, and Justice John Godfrey Foxcroft all from South Africa. The tribunal completed its proceedings on 20 October, 2016 and submitted its report to King Letsie III.
Justice Mosito resigned before a verdict was announced on his fate, citing alleged persecution by Dr Mosisili and Attorney-General Tšokolo Makhethe King’s Counsel (KC).
His Majesty then appointed Justice Nugent to succeed Justice Mosito.
However, the High Court ruling in October this year, quashed the findings of a tribunal set to investigate Justice Mosito for purposes of his impeachment.
The findings were part of the four lawyers’ argument that Justice Mosito’s re-appointment was unconstitutional in that he “does not meet the requirements of section 124 (3b) because he is not a fit and proper person to hold judicial office”.