. . . as judgment deferred in court of appeal presidency case
JUSTICE Kananelo Mosito will only know if he will reassume the presidency of the Court of Appeal next February after the Constitutional Court this week reserved judgment over a case in which his controversial re-appointment by Prime Minister Tom Thabane is being challenged.
A panel of three judges reserved judgment to 9 February 2018 in the case in which four senior lawyers are challenging Justice Mosito’s 1 August 2017 reappointment as the Kingdom’s top judge.
The panel was comprised of two Namibian judges, Justices Ezer Hosea Angula and Shafimane Fikameni Immanual Ueitele as well as a South Africa’s Justice Mojalefa Rampai.
Justice Mosito was initially appointed by Dr Thabane during his first tenure as Prime Minister. When Pakalitha Mosisili took over power from Thabane after the February 2015 snap elections, he began a process of removing Judge Mosito, who subsequently resigned in the wake of a tribunal into his fitness to hold office over allegations that he had evaded taxes. When Dr Thabane returned to power this year after resoundingly winning the 3 June 2017 elections, he re-appointed Judge Mosito in place of Justice Robert Nugent who had been appointed to head the apex court by Dr Mosisili.
But the re-appointment of Judge Mosito on 1 August 2017 immediately sparked a storm with four lawyers going to court to stop him from assuming office. The four are essentially arguing that Judge Mosito is unfit to hold that office because of the previous tax charges that he faced even though he was never convicted by a court of law.
The judges reserved judgment after lengthy arguments between the lawyers representing the applicants, who are the sour lawyers, and the respondents who include Judge Mosito and Dr Thabane.
The four lawyers challenging Justice Mosito’s reappointment are King’s Counsel Zwelakhe Mda, Karabo Mohau, Motiea Teele and attorney Qhalehang Letsika.
The respondents include Justice Mosito, Prime Minister Thomas Thabane, King Letsie III, the attorney-general and the Law Society of Lesotho.
Arguing the case on behalf of the applicants (the four lawyers), Senior Counsel Guido Penzhorn said Justice Mosito was re-appointed before the court order setting aside the findings of a tribunal established to probe his fitness to hold office and establish the stage for his impeachment.
“As of the 1st of August 2017 when he was reappointed, there was no legal challenge to the findings of the tribunal,” Advocate Penzhorn said.
Because the tribunal’s findings were later only set aside in October, Advocate Penzhorn argued that Judge Mosito should never have been re-appointed because it would have been illegal to do so then since the Judge had been found to be on the wrong side of the law by the lawful tribunal established by Dr Mosisili.
The lawyers also argued about whether or not King Letsie 111 was right in removing Justice Mosito from office, acting on the advice of the Prime Minister, after Judge Mosito had already resigned.
The argument emanated from the fact that the tribunal into Justice Mosito’s fitness to hold office submitted its report on 9 December 2016 and Justice Mosito resigned on 13 December 2016, while His Majesty removed him from office with effect from 23 December 2016 – 10 days after he had resigned.
Advocate Penzhorn argued that that was largely immaterial. What mattered most was that the tribunal had already found that he was not fit to hold office before he could tender his resignation.
“He didn’t resign because he wanted to resign, but he resigned because he was forced to do so. He had no choice,” he argued.
Advocate Penzhorn said Dr Thabane’s decision to advise the King to reappoint Justice Mosito was consequently wrong in law because the Prime Minister was practically reviewing the tribunal’s findings and he had no authority to do so.
He said: “Unless those findings were undone by the court, they could not be undone by the prime minister.
“What the prime minister was doing was in fact reviewing the proceedings of the tribunal.
“The tribunal made findings on the 9th December and four days later he (Justice Mosito) resigned.
“The findings of the tribunal cannot be ignored until they are set aside by the court.”
When the re-appointment of Judge Mosito was done by Dr Thabane on 1 August 2017, the tribunal’s findings had not yet been set aside, making the appointment illegal.
He argued that the subsequent quashing of the tribunal’s findings in October 2017 did not have any bearing to the nullity of Judge Mosito’s re-appointment.
“Whatever happened in October cannot retrospectively change the situation as existed on the 1st of August 2017 when he was reappointed. He was re-appointed when he shouldn’t have been. So his re-appointment remains invalid”
He continued: “As at the time when the prime minister advised the King in August, those findings were not at the time set aside, making any re-appointment illegal”
He also rejected the law society’s contention that the four top lawyers did not have the legal right to challenge the reappointment – a legal expression known as locus standi.
He said the four lawyers had a right to seek court intervention because the law society itself had failed to take the appropriate action against Judge Mosito’s “illegal” re-appointment. The law society is in fact supporting Judge Mosito’s re-appointment.
Advocate Eric Taurai Matinenga, representing Justice Mosito, Dr Thabane, King Letsie 111 and the other respondents, strongly rejected the arguments of the four lawyers.
Adv Matinenga – who is a Zimbabwean national – maintained the re-appointment of Justice Mosito was legitimate because the King had only removed him from office when he had already resigned, a move that was not necessary. In any event, the tribunal’s adverse findings against Judge Mosito had been subsequently set aside. There was therefore no legal impediment to his re-appointment to the bench as there is no criminal conviction against him nor any valid adverse findings of any tribunal against him.
“Their case is based on the argument that the 1st respondent is not fit to hold office, but the Prime Minister clearly says in his affidavit that those charges – which were preferred on him by the previous government – were trumped up charges…..These charges were not in any event upheld by any court of law,” he said.
He further argued the four lawyers had a weak case because they were also seeking to use the case against Judge Mosito to fight against the removal of Justice Robert Nugent from the presidency of the apex court, in favour of Judge Mosito, when Justice Nugent was himself not fighting against his removal and had not sanctioned them to do so.
“Judge Nugent clearly said he did not want to be involved in the matter.
“Your Lordships are now being asked to make an academic ruling that will have no effect.
“If judge Nugent had wanted to challenge his dismissal, he was free to do so,” he argued.
Justice Nugent was removed from the position as Justice Mosito was simultaneously reappointed to the seat on 1 August, 2017.
However, Advocate Matinenga was overruled when he sought to rely on supplementary affidavits to introduce the judgment of the High Court in which it quashed the findings of the tribunal against Justice Mosito as well as the High Court judgment of 25 October 2017 clearing Justice Mosito of the tax evasion charges.
The court held that it was against the rules of the Constitutional Court rules to bring a supplementary affidavit without making a substantive application to seek permission of the court to do so.
The lawyer representing the law society, King’s Counsel Hopolang Nathane, argued briefly that the four lawyers did not have a right to challenge the reappointment of Justice Mosito on behalf of the country’s legal practitioners.
He said the law only gives powers to the law society to act on behalf of legal practitioners.
The judges reserved judgment to 9 February next year after saying they needed time to consider the matter.