. . . as impeachment tribunal is established to try Court of Appeal president

Tefo Tefo

JUSTICE Kananelo Mosito faces suspension after Prime Minister Pakalitha Mosisili gave the Court of Appeal president seven days to “show cause” why he should not be suspended to pave way for his impeachment proceedings.

In a letter dated 8 February 2016, Dr Mosisili notified Justice Mosito of his intention to advise King Letsie III to suspend him as the president of the apex court.

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.”

The “show cause” letter had been preceded by another missive from Dr Mosisili dated 4 February 2016.

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 the judge’s impeachment.

Part of the letter reads: “My letters of respectively, 8^th October 2015 and 16^th October 2015, including yours of 21^st December 2015 bear reference. Further, in the same connection, reference is to the Court of Appeal decision and order of 26^th 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 an impeachment tribunal against him.

The prime minister said it was against that background that he advised the King to establish a 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 15^th January, 2015,” he said.

“The members of the Tribunal are:

• Mr Justice Frederik Daniel Jacobus Brand, a retired judge of the South African Supreme Court of Appeal – Chairman;
• Mr Justice Noel Victor Hurt, a retired judge of the South African Supreme Court of Appeal – Member and
• Mr Justice John Godfrey Foxcroft, a retired judge of the South African Western Cape High Court – Member.”

The tribunal was appointed through Legal Notice No. 7 of 2016, which was published on 4 February 2016.

According to Dr Mosisili’s letter, the tribunal would start its work on 9 March this year with the Court of Appeal president expected to attend its first sitting.

“To that end, you are required to attend the first sitting of the Tribunal at 10:00am on 9 March 2016 in Court 1 of the High Court of Lesotho for further conduct of the proceedings to be determined,” reads the letter.

In the correspondence, Dr Mosisili also outlines the reasons he wants to see the back of Justice Mosito.

“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^th 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 issue with Justice Mosito’s argument that some top lawyers had also not paid income tax on time and that his prosecution was discriminatory.

To prove his point, the judge 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 lawyers last October.

“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 misbehaviour rendering you unfit to continue in office,” Dr Mosisili charged.

Justice Mosito also has a constitutional case in which he is seeking an order that a judge can only be removed from office for offenses committed while he or she was in office and not before occupying the post.

Added to that, the Court of Appeal is expected to hear the judge’s appeal in April after the Constitutional Court dismissed his claim that it was unconstitutional for the Director of Public Prosecutions, King’s Counsel Leaba Thetsane, to prefer tax evasion charges against him.