Nat Molomo and Caswell Tlali
MASERU — A local businessman who was convicted of tax fraud has asked the High Court to vary the terms of his sentence by giving him a grace period of 54 months to pay his M4 million fine.
Osman Moosa (pictured), his son Shameen Moosa and a company they co-own, Selkol 1983 (Pty) Ltd were convicted of dodging tax by the High Court in August this year.
The parties were ordered to pay a total of M6.1 million in fines and taxes owed to the LRA after they were found guilty of tax evasion.
They were to pay the fine in four months with the first instalment due on or before November 30, 2011 while the final payment was to be paid on or before February 28, 2012.
But on Friday, three weeks before the first payment was due the Moosas approached the High Court seeking an extension of the payment period from four to 54 months.
Their lawyer, Advocate Henry Selzer, told High Court Judge Justice ’Maseforo Mahase that his clients were determined to pay the full amount as ordered by the court but they wanted an extension because they did not want to be in contempt of court by failing to pay as ordered.
Selzer further asked the court to stay the execution of the court order made in August after the Moosas and the crown entered into a plea bargaining agreement which was translated into an order directing them to pay within four months.
The applicants also want to know whether the court by accepting the plea bargain and settlement agreement nullified the LRA’s rights to dictate the terms of the payment schedule or whether it is only the court that is vested with such rights under the provisions of Criminal Procedure and Evidence Act 1981.
Advocate Selzer, assisted by Advocate Ntjelo Hlalele, pleaded with the court to vary sentence to reasonable terms.
The applicants propose to pay M74 000 per month over 54 months for the M4 million payment and M125 000 per month over 12 months for the M1.5 million fine.
The applicants told Justice Mahase that the sentence was too heavy and this was the reason why they were asking for the indulgence of the court to pay in 54 months.
“That the payment of the fine in respect of accused one (Selkol) as it fully appears be deferred and payable over a period of 12 months effective from November 2011,” Selzer pleaded.
“And that the payment of civil liability in the amount of M4 million payable to the Lesotho Revenue Authority herein be deferred and payable over a period of 54 months effective from December 2011,” he said.
Selzer submitted the applicants have every intention to honour the sentence but cannot pay if the payments were not relaxed.
The applicants submitted their bank statement to prove that they had experienced cash flow problems.
“Applicants’ case is that the sentence is not being altered so as to attract from the gravity of the message it sends to the people of Lesotho and only the timing of payments in light of the circumstances beyond their control is requested,” he said.
Selzer submitted: “Cognisance must be taken of the fact that Selkol 1983 (Pty) Ltd is a wholly owned Lesotho company supporting over 1 500 dependants and paying Basotho wages of M2 968 000 per annum.”
He submitted that to close the door on the applicants would jeopardise the livelihood of honest, hard-working citizens of Lesotho.
Opposing Selzer’s submissions, crown counsel Realeboha Mathaba said before the court could suspend or defer the sentence “it must be satisfied that a person making an application has been unable, through circumstances beyond his control, to fulfil the conditions of the order.”
“The person making an application for suspension or deferment bears the onus of proof on the balance of probabilities,” Mathaba said.
Mathaba said the Moosas had not disclosed all relevant information and details in order for the court to exercise its discretion in their favour.
He said they had not disclosed the assets and liabilities of Selkol 1983 (Pty) Ltd.
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