THE Constitutional Court is today expected to hear a case in which Court of Appeal President Justice Kananelo Mosito seeks to quash criminal charges levelled against him for allegedly evading tax for 19 years.
Director of Public Prosecutions (DPP) King’s Counsel Leaba Thetsane preferred criminal charges against Justice Mosito on 21 August 2015 for allegedly not paying tax for his legal firm from 1996 to 2014.
Justice Mosito is charged with violating provisions of the Income Tax Act of 1993, and Criminal Procedure and Evidence Act of 1981.
According to the charges, Justice Mosito never registered with the tax authorities as required by the law and was only registered with the Lesotho Revenue Authority (LRA) as a taxpayer on 20 April this year.
However, the Court of Appeal president on 30 August 2015 filed a constitutional case to have the charges dropped.
In addition to the application, the court is also expected to hear Justice Mosito’s prayer for the LRA to be compelled to disclose the tax status of fellow judges and five senior lawyers.
Justice Mosito claims the judges and lawyers in question also evaded tax but were not charged, hence his argument the charges against him were discriminatory and driven by malice.
Justice Mosito also wants the court to order the LRA and its boss to reveal the names of taxpayers listed in his application by their identification numbers and the dates on which they filed their individual income tax returns between 1996 and 2014.
In his affidavit, Justice Mosito alleges the identification numbers in question belong to some top lawyers unhappy with his appointment as president of the Court of Appeal in January this year.
“I aver that the Director of Public Prosecutions has instituted the proceedings against me inter alia because this is part of his retaliatory and vengeful coordinated crusade in which he was involved with advocates (Karabo) Mohau KC, (Motiea) Teele KC, (Salemane) Phafane KC, (Zwelakhe) Mda KC and Attorney (Qhalehang) Letsika against me,” Justice Mosito wrote in the affidavit.
“I did aver in the said affidavit that this violated my constitutional rights to equal protection of the law and freedom from discrimination.
“The above-named legal practitioners, together with advocates Thetsane KC and (Tšokolo) Makhethe KC (Attorney General) had been outspoken and combative against me after my appointment as President of the Court of Appeal of Lesotho.
“In his answering affidavit, the DPP pointed out the fact my said erstwhile colleagues were guilty of ‘fiscal delinquency’ had not come to his attention.
“He then challenged me to put forward evidence or facts upon which I based my said averments.”
Justice Mosito further says it would not be difficult for him to have the said information, but could not put it before the court due to “the secrecy and confidentiality provisions of the Income Tax Act 1993 and Lesotho Revenue Authority Act 2001.”
The two laws, he added, demand that disclosure of such information could only be made by an order of a court of law.
However, Justice Mosito argues despite these laws, LRA officials disclosed his tax affairs to the police and DPP “without an order of a competent court authorising them to do so”.
This revelation, he argues, renders his criminal prosecution unlawful.
He continues: “I have had to investigate and come up with the said advocates’ tax identity numbers in order to prove the point that they have not religiously filed theirs on time during the fiscal years spanning 1996-2014.
“It is regrettable the crusade mounted against me has to result in my having to disclose the results of my investigation in order to prove to this honourable court that the above-named legal practitioners have also not filed their returns as required and yet they have not been prosecuted for reasons given in my founding papers in the main case.
“I also aver none of the High Court and Court of Appeal judges ever consistently filed their individual income tax returns on time according to the findings of my investigations for the fiscal year spanning 1996-2014.
“It is therefore, appropriate to call upon the respondents to disclose to this honourable court information and documents relating to the tax affairs of the above honourable judges regarding whether they ever filed such returns during the period under consideration, before the 30th of June.
“It will be clear that none of them has ever done it.
“Thus, the present prosecution against me is discriminatory and selective.”
Justice Mosito has cited the LRA Commissioner General and the LRA as first and second respondent, respectively.
Meanwhile, during the same proceedings, the court will hear Justice Mosito’s challenge of a letter written by Prime Minister Pakalitha Mosisili. The letter asked him to show cause why he should not be impeached because of the tax accusation.