… ruling clears the way for the apex court to resume its sittings after almost two years
Mohalenyane Phakela
JUSTICE Kananelo Mosito is set to be sworn in as the president of the Court of Appeal after the apex court on Friday overturned the February 2018 Constitutional Court judgement which nullified his re-appointment to the position.
The Court of Appeal bench ruled that Justice Mosito was validly reappointed as President of the Court of Appeal with effect from 1 August 2017.
The Court of Appeal also ruled that the Acting Chief Justice ‘Maseforo Mahase “is ordered to swear Dr Mosito KC as President of the Court of Appeal as soon as is practicable”.
The five-member Court of Appeal bench 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).
The Court of Appeal ruled in favour of Justice Mosito after finding that the Constitutional Court erred by ignoring a 2017 High Court order which nullified the findings of a tribunal which was set up by former Prime Minister Pakalitha Mosisili to impeach Justice Mosito during his first stint at the helm of the apex court in 2016.
A second 2017 High Court also quashed the tax evasion charges that had been brought against Justice Mosito.
The 2016 tribunal’s findings that Justice Mosito was unfit to hold office because he had evaded paying taxes formed the basis of the appeal by four prominent lawyers against the reappointment of Justice Mosito by Prime Minister Thomas Thabane in August 2017.
Reading the verdict in a courtroom filled with legal practitioners, law students from the National University of Lesotho and other interested people on Friday, Justice Musonda said the Court of Appeal found that Justice Mosito’s reappointment by Prime Minister Thomas Thabane was legal.
“This was not an easy judgement to make and we had to sit down again to discuss it in the morning hence we postponed the reading of this judgement from 9.30am to 11am,” Justice Musonda said on Friday.
“Dr Kananelo Everrit Mosito was validly reappointed as President of the Court of Appeal with effect from 1 August 2017. The Acting Chief Justice is ordered to swear Dr Mosito KC as President of the Court of Appeal as soon as is practicable.”
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 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 notice, 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 Friday, 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.
Another High Court ruling on 26 October 2017 cleared Justice Mosito of the tax evasion charges. It was against this background that Justice Mosito argued that the Constitutional Court could not conclude that he was unfit to hold office.
The Constitutional Court nevertheless, ruled against Justice Mosito in February this year- a verdict which was overturned by the Court of Appeal on Friday.
“It is the appellants’ (Justice Mosito and others) contention that the Constitutional Court misdirected itself in declaring that the appointment of the first appellant (Dr Mosito KC) is unconstitutional as he is not fit and proper on the basis of the findings of the tribunal appointed to probe his fitness to hold judicial office.
“The appellants argued that as the findings of the tribunal were annulled by the Court Order of 18 October 2017, it was therefore wrong for the Constitutional Court to base its decision on it despite knowing about the existence of the order of court nullifying the same, and a further judgement clearing Dr Mosito of tax evasion charges, handed down on 26 October 2017. Both these orders were brought to the attention of the Court a quo (previous court in which the matter was heard),” Justice Musonda said on behalf of the five-member Court of Appeal bench.
Justice Musonda further said that the Court of Appeal had therefore decided to set aside the orders of the Constitutional Court and allow Justice Mosito’s appeal because the Constitutional Court had “sadly ignored” the doctrine of stare decisis (standing by earlier decisions).
“The doctrine of stare decisis is of fundamental importance to the rule of law, which was sadly ignored by the court a quo (Constitutional Court). Our precedents are sacrosanct.
“The Court a quo (Constitutional Court) created a totally different criteria unsupported by the common law, constitutional jurisprudence, statute law and the constitution of Lesotho. This was judicial overreach.
“The upholding of the first ground of appeal is inevitable and this is dispositive of the whole appeal. The appellant (Justice Mosito) succeeds,” Justice Musonda said on behalf of the Court of Appeal bench.
Various stakeholders including the Law Society of Lesotho and staffers of the Court of Appeal said they were relieved by Justice Mosito, saying this would facilitate the delivery of justice.
Justice Mosito’s victory ends the long-drawn out legal battle which had brought the operations of the apex court to a halt.
In the aftermath of his swearing-in, the Court of Appeal will be able to resume its sittings and this will go a long way in clearing the backlog of cases that have accumulated in the close to two years that the court has not been sitting.
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