Court of Appeal President Justice Kananelo Mosito says fellow judges and some top lawyers have not paid income tax on time but he remains the only one charged for the alleged offense because of a “vengeful crusade” by the Director of Public Prosecutions (DPP).
To prove his point, the judge has requested the Constitutional Court to compel the Lesotho Revenue Authority (LRA) to disclose their tax status of all High Court and Court of Appeal judges, as well as five lawyers— Karabo Mohau, Motiea Teele, Salemane Phafane, Zwelakhe Mda and Qhalehang Letsika.
In a notice of motion filed last Wednesday, Dr Mosito wants LRA Commissioner General Thabo Letjama and the LRA “to dispatch to this honourable court, information regarding all judges of the High Court and/or Court of Appeal who have ever filed their individual Income Tax returns before 30th June, for the fiscal year spanning 1996-2014.”
Justice Mosito also wants the court to order the LRA to reveal the tax status of the five lawyers for the period in question.
Dr Mosito said this application is related to another one pending before the court in which he is challenging the constitutionality of his prosecution for the late filing of tax returns since 1998.
Reads his affidavit: “I averred in the affidavit that the Director of Public Prosecutions has instituted the proceedings against me as 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 for reasons I have mentioned in the said 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), have been outspoken and combative against me after my appointment as President of the Court of Appeal of Lesotho (in January this year).
“In his answering affidavit, the DPP pointed out that the fact that 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 is possible for him to provide the requested details but would not be able to put the information before the court “because of the secrecy and confidentiality provisions of the Income Tax Act 1993 and the Lesotho Revenue Authority Act 2001”.
The laws, he added, require the disclosure of such information through a court order.
However, Dr Mosito stated despite the provisions of the law, the LRA disclosed his tax affairs to the police and DPP “without an order of a competent court”.
He also noted the fact that the LRA revealed the information to the police and DPP without a court order renders his criminal prosecution unlawful.
“Armed with the above information, I have had to make my own independent investigations to discover whether these lawyers with whom we have enjoyed a similar status of King’s Counsel, have religiously filed tax returns in due time in order to strengthen my point that the preferred criminal prosecution against me is actuated by malice.
“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 that 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.”
Justice Mosito also says 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 the period 1996-2014”.
He adds: “It is, therefore, appropriate to call upon the respondents (Mr Letjama and the LRA) 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. It will be clear that none of them has ever done it.
“Thus, the present prosecution against me is discriminatory and selective.
“I am very much perturbed in the light of the fact that I was the only judge in this jurisdiction whose tax affairs were interrogated under the circumstances which I have already sketched above,” he noted.
The defendants have not yet responded to the application and a hearing date has not been set.
Justice Mosito was appointed President of the Court of Appeal on 15 January 2015 and sworn-in on 27 January 2015.
Prime Minister Pakalitha Mosisili has since asked him to “show cause” why he should not be fired because of the tax-allegation against him.