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Court of Appeal resumes sittings

by Sunday Express
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Mohalenyane Phakela

THE Court of Appeal will tomorrow resume its sittings after a hiatus of almost two years which was caused by the long-drawn out legal battle over who should head the apex court.

This follows the swearing-in of the Court of Appeal president Justice Kananelo Mosito on 1 November this year.

The Assistant Registrar of the Court of Appeal, Mosito Rabotsoa, recently told the Sunday Express that the Court of Appeal will start by hearing condonation cases tomorrow.

“The Court of Appeal will resume its sittings on Monday and it will begin by hearing condonation cases which are cases that had been excused because they had been filed late,” Mr Rabotsoa said.

A Court of Appeal Circular No.2 of 2018 seen by this publication further states that the concerned parties including lawyers and litigants should attend the roll call tomorrow at 9.30am and the judgements will be delivered on Friday.

“There will be a roll call on 12 November 2018 at 9.30am. All legal practitioners involved or their representatives as well as litigants must attend. Delivery of outstanding rulings on interlocutory applications will be done on 16 November 2018.”

The Court of Appeal, which had not sat since December 2016 when Justice Mosito resigned as its president, will resume its sittings after the latter Mosito was sworn-in on 1 November this year.

Dr Mosito was first appointed to the top job during the first government of Prime Minister Thomas Thabane in January 2015. He was reappointed to the same post on 1 August 2017 after Dr Thabane returned to power in the aftermath of the June 2017 snap national elections.

Justice Mosito’s reappointment came after he had been forced to resign in the wake of the establishment of a tribunal in 2016 by former Prime Minister Pakalitha Mosisili to determine his fitness to hold office over allegations that he had evaded paying taxes.

The tribunal had recommended his impeachment on the basis that he had failed to honour his tax obligations and that he acted unlawfully in investigating his fellow judges to establish if they had also paid their taxes as he sought information to advance his case.

On 13 February this year, his reappointment was declared null and void by the Constitutional Court on the grounds that he “is not fit and proper person” for the job because he had been impeached by the 2016 tribunal.

The February ruling followed a court application by four lawyers – King’s Counsels Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika. However, Justice Mosito did not take the decision lying down and on 19 February 2018, he and his co-respondents, including Dr Thabane lodged a notice of appeal before the Court of Appeal. In his appeal to the Court of Appeal, Justice Mosito argued that the Constitutional Court erred and misdirected itself in finding in favour of the four lawyers.

Among other things, Justice Mosito argued that the Constitutional Court was wrong to conclude that the tribunal had found him unfit to hold office.

He argued that the tribunal’s findings were of no consequence as they were made after he had already resigned his position as Court of Appeal President on 13 December 2016.

“The first appellant’s (Justice Mosito) resignation became effective as at 16:02 hours on 13 December 2016 and there was no way he could be removed ten days later after he had resigned from that position,” Justice Mosito argued in his court application.

“The court ought to have held that the enquiry had been rendered otiose (serving no practical purpose) by such resignation, thereby rendering the last lap of the attempted impeachment frustrated.”

Justice Mosito further argued that the four lawyers had no right to file their application against his re-appointment “either on behalf of the general public or anyone else”.

In its judgement on 26 October this year, the Court of Appeal upheld Justice Mosito’s appeal, finding among other things that the Constitutional Court had erred by ignoring the earlier rulings of the High Court. A High Court ruling on 18 October 2017 annulled the findings of the tribunal which had found Justice Mosito unfit to hold office.

The five-member Court of Appeal bench which upheld Justice Mosito’s appeal was composed of Acting Justices of Appeal, Philip Musonda (who is from Zambia), ‘Maseshophe Hlajoane and Moroke Mokhesi (both from Lesotho), November Tafuma Mtshiya (Zimbabwe) and John Zwibili Mosojane (Botswana).



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