COURT of Appeal President, Justice Kananelo Mosito, faces yet another legal hurdle barely two weeks after he was re-appointed to the hot seat.
This follows a court application that has been lodged by four lawyers, challenging the legality of his 1 August 2017 appointment which was made by King Letsie III on the advice of Prime Minister Thomas Thabane.
Justice Mosito, Dr Thabane, Minister of Law and Constitutional Affairs Lebohang Hlaele, Minister of Justice and Human Rights Mahali Phamotse and the Attorney-General are the first to fifth respondents respectively.
Justice Mosito, who returned to the position eight months after he was forced to resign to avoid impeachment over tax evasion by the Pakalitha Mosisili-led former government, is already facing charges over the same issue.
Last week, the High Court postponed to 26 October this year, the case in which he stands accused of breaching tax laws.
The case has been hanging over Justice Mosito’s head since 2015 when the former coalition government accused him of violating tax laws by allegedly failing to submit his income tax returns to the Lesotho Revenue Authority (LRA) from 1996 to 2014.
And the top judge has fresh legal woes after four lawyers on Tuesday filed an urgent court application challenging the validity of his appointment.
The four, Attorney Qhalehang Letsika, King’s Counsel Karabo Mohau, Motiea Teele and Zwelakhe Mda argue in their constitutional application that Dr Thabane did not follow due process when he advised His Majesty to re-appoint Justice Mosito.
They also contend that the removal of his predecessor, Justice Robert Nugent, to accommodate Justice Mosito was illegal.
They are seeking an order declaring “that the removal of Justice Nugent from office as President of the Court of Appeal is null and void and of no force and effect to the extent that it has not met and followed the provisions of section 125 of the constitution”.
Section 125 (3) of the constitution provides that: “An appointed judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section”.
Subsection four of the same section provides that: “An appointed judge shall be removed from office by the king if the question of his removal has been referred by the king to a tribunal appointed under subsection (5) and the tribunal has advised the king that the appointed judge ought to be removed from office for inability as aforesaid or for misbehaviour”.
The four lawyers argue the said provisions of the constitution were not complied with when removing Justice Nugent from office and re-appointing Justice Mosito as the incumbent president.
They also want the order that “the decision of the second respondent (Dr Thabane) to recommend the appointment of the first respondent (Justice Mosito) to His Majesty and the subsequent appointment is reviewed and set aside as irregular and unconstitutional.”
Justice Mosito was first appointed Court of Appeal president in January 2015, taking over from Justice Michael Ramodibedi who had also resigned after losing a protracted legal battle to stop his impeachment for alleged abuse of office.
However, not long after Justice Mosito’s appointment, King Letsie III appointed a three-member tribunal in February 2016, at the advice of then premier Pakalitha Mosisili, to investigate him for allegedly failing to pay income tax between 1996 and 2014.
The tribunal was comprised of Chairperson, Justice Frederik Daniel Jacobus Brand, Justice Noel Victor Hurt, and Justice John Godfrey Foxcroft all from South Africa. The tribunal completed its proceedings on 20 October, 2016 and submitted its report to King Letsie III.
Justice Mosito resigned before a verdict was announced on his fate, citing alleged persecution by Dr Mosisili and Attorney-General Tšokolo Makhethe King’s Counsel (KC).
His Majesty then appointed Justice Nugent to succeed Justice Mosito.
The lawyers also argue that Justice Nugent’s removal did not follow the due process of law because he was not given a hearing, while a tribunal to remove him from the position was also not established as a constitutional requirement.
The quartet seized on the issue of the tribunal that was established to investigate Justice Mosito over tax evasion to argue that his appointment is unconstitutional in that he “does not meet the requirements of section 124 (3)(b) because he is not a fit and proper person to hold judicial office as contemplated therein”.
In support of the court challenge, Attorney Letsika submitted an affidavit stating that Justice Mosito was found guilty by the tribunal established by His Majesty to investigate him.
Part of Attorney Letsika’s affidavit reads: “The tribunal has summed it up properly that it will be impossible for the first respondent (Justice Mosito) to foster a good relationship with members of the judiciary or members of the bar”.
“Once a finding was made that he did not measure up to the required standard it shows that it was irrational, arbitrary and unreasonable on the part of the second respondent to recommend the appointment of the first respondent. It follows that the appointment of the first respondent was irrational and unreasonable.”
Attorney Letsika further suggests the finding by the tribunal against Justice Mosito that he obtained information regarding other lawyers’ tax issues when he defended his tax accusations through unlawful means renders him unfit for the position.
“In addition the tribunal made a finding that the first respondent gave false evidence concerning how he came into the possession of confidential information relating to certain taxpayers.
“The tribunal held that his evidence was false to the effect that he sought to explain away his investigations that apparently breached the secrecy provisions of the revenue legislation,” Attorney Letsika states.
The lawyers representing the quartet and the lawyers representing the respondents are expected to appear in court on next Monday week to discuss how to proceed with the case.