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Court of Appeal sitting in disarray


. . . as fresh court application further delays finalisation of Mosito case

Tefo Tefo

THE already delayed sitting of the second session of the Court of Appeal has been plunged into further uncertainty after four lawyers challenging Justice Kananelo Mosito’s reappointment as the apex court’s president now seek to include new parties to the case.

The net effect of the latest application is a further delay in the sitting of the Court of Appeal with a direct impact in the administration of justice in Lesotho since it is the highest court in the land.

According to well-placed sources, over a dozen cases from the High Court and the Commercial Division of the High Court await hearing in the Court of Appeal.

The four lawyers, King’s Counsel Zwelakhe Mda, Karabo Mohau, Motiea Teele and Attorney Qhalehang Letsika, seek to shore up their substantive case, in which they seek to nullify Justice Mosito’s reappointment, before the Constitutional Court by roping in the Law Society of Lesotho and King Letsie III.

By joining the two parties to the case, the lawyers want to avoid having the substantive case dismissed on a legal technicality called non-joinder of party; referring to the omission of a necessary party to an action.

In the substantive case, the solicitors are challenging the validity of Justice Mosito’s reappointment as Court of Appeal president by Prime Minister, Thomas Thabane, on 1 August 2017.

Justice Mosito had bounced back eight months after he was forced to resign to avoid impeachment over tax evasion charges by the Pakalitha Mosisili-led former government.

Two weeks after his reappointment, the four lawyers lodged a constitutional application in which they argue that Dr Thabane did not follow due process when he advised His Majesty to re-appoint Justice Mosito.

They also contend that the removal of his predecessor, Justice Robert Nugent, to accommodate Justice Mosito was illegal.

The lawyers aver that Justice Nugent’s removal did not follow the due process of law because he was not given a hearing, while a tribunal to remove him from the position was also not established as a constitutional requirement. Justice Nugent had been appointed to the helm of the apex court in May this year.

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 legal challenge resulted in the halting of Justice Mosito’s swearing-in as president of the apex court on 18 August 2017. As a result, the Court of Appeal’s second session, which normally sits in October, will not be assembled until the matter is resolved. The president assembles the Court of Appeal and sets the dates for its sittings.

The substantive case was scheduled for hearing by the High Court in its sitting as a Constitutional Court on Wednesday according the High Court’s Assistant Registrar Stafford Sharite.

However, last Thursday, the four solicitors filed another application seeking the joining of the Law Society of Lesotho and King Letsie III to the case.

“The case will not be heard as scheduled before, in order to give the Law Society of Lesotho an opportunity to file its papers with regard to this new application,” he said.

“Fresh dates will have to be set considering the new developments in the matter.”

The four lawyers had also roped in Justice Nugent, but immediately withdrew him from the case after he refused to cooperate.

Atty Letsika told the Sunday Express yesterday that Justice Nugent, who is a retired South African Supreme Court of Appeal judge, refused to be associated with the case when contacted by the lawyers.

“Justice Nugent wrote to our lawyers that he was not interested in the matter since he has already resigned,” he said, adding that the South African judge also sent them a copy of his resignation letter.

“On Friday, our lawyers filed a notice in the Constitutional Court to withdraw Justice Nugent in light of his response.”

Law Society of Lesotho President, Tumisang Mosotho, yesterday told this publication they intended to challenge the application seeking to join them in the case.

“We are strongly opposed to that application because we don’t want to be drawn into that confusion,” he said.

“If they wanted us to be part of it, they could have initially consulted us so that we could discuss and see how best to deal with it.

“Now, they want to make us part of what they have started alone; we cannot agree to be drawn in that matter at this stage.”

Asked on the implications of the latest application to the sitting of the second session of the Court of Appeal, Atty Mosotho said “it worsened an already bad situation”.

“But, for our part, we are doing all we can to find ways to ensure that the Court of Appeal functions as expected.

“For instance, we have written to the prime minister about the matter and we are still waiting for an audience with him to discuss and find ways to deal with the problem.”

Atty Mosotho also indicated that the lawyers’ body wrote a letter to Chief Justice, Nthomeng Majara, last month complaining about the uncertainty over the sitting of the second session of the Court of Appeal.

Justice Majara then referred the Law Society of Lesotho to Dr Thabane.

“We found that answer very unsatisfactory,” Atty Mosotho told the Sunday Express’s sister paper, Lesotho Times.

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

However, not long after Justice Mosito’s appointment, King Letsie III appointed a three-member tribunal in February 2016, at the advice of then premier Pakalitha Mosisili, to investigate him for allegedly failing to pay income tax between 1996 and 2014.

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 (KC).

Ten days after his resignation – on 23 December 2016 – Dr Mosito was issued a letter from King Letsie III’s Senior Private Secretary, Manehela Phosholi, announcing his removal as Court of Appeal president.

Dr Mosito’s removal also appeared as Legal Notice No. 156 of 2016 in the government gazette Volume 61 of 23 December 2016 titled: “Removal of President of Court of Appeal Notice, 2016”.

Dr Mosito has since argued the government gazette and a letter from the royal palace secretariat declaring his removal from the helm of the apex court were “null and void” since they were issued after he had already resigned.

He said the move was possibly meant to humiliate him and taint his image. Dr Mosito also said the letter was “full of irregularities and flouted procedures” followed when removing a Court of Appeal president.

His Majesty then appointed Justice Nugent to succeed Justice Mosito.


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