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New twist to Justice Mosito case

  •  Judge could have been conflicted in Mosito case

Pascalinah Kabi

A ZIMBABWEAN judge who recently refused to recuse himself from a case involving former Court of Appeal president Kananelo Mosito could have acted in conflict of interest.

This follows the surfacing of an email whose details suggest that the judge, Justice Chinhengo, is a close of friend of Justice Mosito and should have recused himself from the case.

Last Tuesday, Justice Chinhengo who is a judge in the Court of Appeal, heard a case in which the Law Society of Lesotho had petitioned the apex court for an order that Justice Mosito’s appeal against a Constitutional Court judgement against his reinstatement be set and heard within 14 days from the 2nd of October this year.

Dr Mosito, Prime Minister, Minister of Law and Constitutional Affairs, Minister of Justice and Correctional Service, Attorney General, His Majesty, Attorney Qhalehang Letsika, Advocates Karabo Mohau, Motiea Tele and Zwelakhe Mda and the Registrar of the High Court and Court of Appeal were cited as 1st to 11th respondents respectively in the Law Society’s petition.

Justice Chinhengo ruled in favour of the Law Society. Justice Chinhengo set and presided over the matter despite the protestations of Attorney Letsika and Advocates Mohau, Tele and Mda.

The four lawyers had argued that Justice Chinhengo should recuse himself from the case as he was conflicted due to his “close and collegial relationship” with Dr Mosito.

The quartet alleged that Justice Chinhengo was appointed to the Court of Appeal bench on the recommendation of Dr Mosito who was president at the time of he was appointed.

The four lawyers further said that the attorneys representing the Prime Minister had demanded that Justice Chinhengo be included in the panel of judges to hear Dr Mosito’s appeal against decisions of the Constitutional Court.

The quartet said it would therefore be inappropriate for Justice Chinhengo to preside in a matter where he appeared to be the preferred judge by the attorneys representing the Prime Minister and Crown.

“It will not be proper for Justice Chinhengo to be part of the hearing of the matter irrespective of which part of it. That will create in the minds of informed and reasonable bystanders that Justice Chinhengo will not be independent and impartial.

“In the circumstances, the respondents pray the court to grant the recusal application. Alternatively, the court refers the matter to the full bench for hearing,” Adv Mda argued on behalf of the four lawyers.

Justice Chinhengo however, dismissed the recusal application, saying “they (the four lawyers) could not show that as a matter of fact, Dr Mosito recommended me for appointment to the bench”.

“They could not establish that I enjoyed a close relationship with Dr Mosito or a deleterious, if I may add, collegial relationship with him beyond that which necessarily must exist between fellow judges,” Justice Chinhengo said.

Although the Law Society of Lesotho had wanted the matter to be heard and decided within 14 days, Justice Chinhengo ruled that this was not a realistic timeframe for all the necessary arrangements for the Court of Appeal to sit.

The Zimbabwean-born judge therefore said 20 days was a more realistic timeframe for the case to be set down and heard, adding the sooner this was done, the better it would be.

“Accordingly, my order is that the Registrar shall set down for hearing the appeal…within 20 court days, invite or request the judges of the Court of Appeal to avail themselves for hearing the matter and make all other necessary arrangements for the hearing of the appeal within that time period,” Justice Chinhengo ruled.

Although, he ruled that the lawyers’ argument that he could be conflicted could not be sustained, a 21 February 2017 email communication between Justice Chinhengo and the Assistant Registrar of the Court of Appeal, Matieho Mothobi, suggests otherwise.

The email, which has since gone viral on social media, was in relation to the appointment of Court of Appeal judges that would hear Dr Mosito’s appeal.

“I have preciously recused myself from matters involving Dr Mosito, Justice Chinhengo is quoted as saying in the email to Ms Mothobi.

“Since my appointment to the Court of Appeal bench and working with Dr Mosito, albeit for a short period, I developed a fairly close friendship with him at the personal level. My judgement may be coloured by that relationship.

“I lecture part time in procedural law at a University in Zimbabwe where Dr Mosito is an external examiner. He being the Dean of the Faculty of Law at the University of Lesotho, his appointment as external examiner was on my recommendation in 2015. I would rather not sit in his appeal for these reasons unless there are compelling reasons that I do so,” Justice Chinhengo appears to further state in the email.

As the debate about whether or not Justice Chinhengo had acted in conflict of interest raged on social media, prominent lawyer Monaheng Rasekoai weighed in, saying Justice Chinhengo may not even be part of Justice Mosito’s appeal against the constitutional court judgement against his reinstatement as Court of Appeal president.

Mr Rasekoai further said that the “the debate of alleged conflict (of interest) should be weighed against the degree of prejudice suffered by the nation when the apex court is dysfunctional”. The (Justice Chinhengo) order was neither decisive of the main appeal nor amounting to a substantive order. It was a procedural order.”

Justice Mosito was first appointed Court of Appeal president by Dr Thomas Thabane during his first tenure as Prime Minister in January 2015.

He was re-appointed to the same post on 1 August 2017 after Dr Thabane returned to power in the aftermath of the June 2017 snap national elections.

His re-appointment 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, finding that he had indeed failed to honour his tax obligations and he had acted unlawfully in investigating his fellow judges to establish if they had also paid their taxes as he sought information to advance his cause.

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

The February ruling followed a court application by four lawyers, namely, King’s Counsel Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika.

However, Justice Mosito did not take the decision lying down and on 19 February, he and his co-respondents, including Dr Thabane lodged a notice of appeal before the Court of Appeal.

In his appeal notice, Justice Mosito argue that the Constitutional Court erred and misdirected itself in finding for the four lawyers.

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

He argues 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 argues.

“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 argues 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”.

But up until the Tuesday ruling by Justice Chinhengo, it was not clear when the appeal will be heard as there were no judges who have been appointed to preside over the case.

However, the Court of Appeal will soon hear Justice Mosito’s appeal after Justice Chinhengo on Tuesday ordered that the Acting Registrar of the High Court and Court of Appeal, Pontso Phafoli, should make all logistical arrangements for Dr Mosito’s appeal case to be heard within 20 court days from 2 October this year.


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