COURT of Appeal President, Justice Kananelo Mosito, has filed an urgent application before the Constitutional Court seeking an order to block a criminal case, of allegedly filing tax returns late, against him from proceeding.
The bizarre case has been raised against the head of the highest court in the land by the Director of Public Prosecutions (DPP), Leaba Thetsane (King’s Counsel). Advocate Thetsane accuses Justice Mosito of allegedly filing his tax return forms late to the Lesotho Revenue Authority (LRA) for the past 19 years.
The charges are mainly in respect of Justice Mosito’s law firm, KEM Chambers, which he opened in 1996. The DPP alleges that Justice Mosito has violated provisions of the Income Tax Act of 1993 by failing to file tax returns timeously for a period of 19 years.
The unprecedented case against a sitting Court of Appeal President exemplifies a determined bid to get rid of Justice Mosito, who was controversially appointed to the post by former Prime Minister Tom Thabane on January 15 2015. He was officially sworn into office on January 27 2015 after a court challenge by Advocate Thetsane and Attorney General Advocate Tšokolo Makhete failed.
Justice Mosito was appointed an acting Judge of the High Court in 2006 and mostly served in the Labour Appeal Court until his appointment to head the Court of Appeal in January 2015. Acting judges mostly keep their law firms operational as they are called to sit on the bench as and when required.
Part of the charge sheet against Justice Mosito reads: “At all relevant times the accused was:
(a) A practicing advocate, having been admitted to practice in 1993, and resident in the Kingdom of Lesotho;
(b) A person subject to income tax imposed by the Act and accordingly a taxpayer as defined in the Act;
(c) Under an obligation to file a return of income in the prescribed form for each year of assessment (“fiscal year”), being the period of 12 months ending 31st March not later than the last day of the third month following the end of that fiscal year, to wit on or before 30 June of the following year.”
The charge sheet further reads: “The accused did not (timeously) file a return of income (on) 19 occasions for each succeeding year, from the fiscal year ending on 31st March, 1996 to the fiscal year ending on 31st March, 2014 before June, 2014.”
According to the notice of trial, which was signed by Advocate Thetsane on 21 August 2015, Justice Mosito was expected to appear before the High Court on Monday this week to Highanswer the tax charges levelled against him.
However, in a new twist, Justice Mosito this week filed an urgent application to block his prosecution arguing that it was unconstitutional.
In his notice of motion, the Court of Appeal president wants “a declaratory order that the prosecution of the applicant (Justice Mosito) for failure to file tax returns in due time for the fiscal years spanning the period 31 March 1996 to 31 March 2014 amounts to discriminatory and or selective prosecution and violates applicant’s constitutional right to equality before the law and equal protection of the law.”
The judge wants “A declaratory order that the decision and/or institution of criminal proceedings against the applicant in CRI/T/0051/2015 is unconstitutional.”
Justice Mosito wants the notice compelling him to appear in court for trial and the charge sheet to be deemed as “both unconstitutional and irregular”. He wants “an order setting aside the aforementioned decision and/or criminal proceedings”.
He also wants the costs of the suit to be paid by the respondents, Advocate Thetsane and Attorney General (AG) Advocate Tšokolo Makhethe (KC), if they oppose his application.
In his application, Justice Mosito says if the DPP and AG oppose the case and lose, they should pay the costs of five advocates and one attorney who shall be representing him.
High Court judge, Justice Semapo Peete, this week granted Justice Mosito interim relief that he should not be prosecuted until his application had been finalised by the Constitutional Court.
The judge also ruled that the case should be dealt with on an urgent basis and directed that the respondents (Advocates Thetsane and Makhethe) appear in court on 1 October2015 to indicate if they opposed the Judge’s application or not.
The whole case seems to suggest that after their unsuccessful attempts to nullify Justice Mosito’s appointment in the courts, Advocates Thetsane and Makhete will stop at nothing in endeavours to get rid of Justice Mosito. Cynics might also see their latest endeavor as an attempt by the new coalition government to get rid of all people appointed to key positions by Dr Thabane. Already scores of principal secretaries appointed by Dr Thabane have been sent home.
Judge Mosito’s appointment sparked controversy with five senior lawyers issuing a public statement condemning it.
The lawyers: Advocate Salemane Phafane KC, Advocate Motiea Teele KC, Advocate Karabo Mohau KC, Advocate Zwelakhe Mda KC and Attorney Qalehang Letsika essentially condemned Judge Mosito’s appointment as a “patronage” appointment. They claimed Judge Mosito had acted for Dr Thabane prior to the appointment.
As caretaker Prime Minister, the lawyers argued, Dr Thabane had no right to make such a senior appointment as it violated a pact to desist from such actions after the collapse of his coalition government and the dissolution of Parliament pending the convening of the 28 February 2015 elections.
Other judges of the Court of Appeal at the time of Judge Mosito’s appointment also resigned in protest.
Advocates Thetsane and Makhete’s Constitutional Court bid to nullify Dr Thabane’s appointment of Justice Mosito to the highest court in the land generated much controversy after they cited King Letsie 111 as a party to the proceedings.
This represented the first ever time that the King had been made a party to court proceedings. Advocates Thetsane and Makhete said Dr Thabane had wrongly adviced the King to appoint Justice Mosito as he had not followed the requisite legal procedures including consulting the cabinet first. Advocates Thetsane and Makhete argued that Justice Mosito’s appointment was irregular and invalid.
But Dr Thabane and King Letsie argued the two had no jurisdiction to challenge the appointment which had been conducted legally. A panel of South African judges appointed to hear the case ruled that Justice Mosito’s appointment had been properly made within the law and ruled in favour of the King and Dr Thabane.