The Court of Appeal this week ordered Prime Minister Pakalitha Mosisili to temporarily stop establishing a tribunal for the impeachment of Justice Kananelo Mosito.
The interdict is to allow the court to hear Justice Mosito’s appeal against a High Court decision to dismiss his application seeking impeachment processes against him permanently stopped. The Court of Appeal president also wanted to stop his prosecution for alleged tax-evasion initiated by Director of Public Prosecutions (DPP) Leaba Thetsane.
Court of Appeal judge, Justice Robert Nugent, on Tuesday said the order would last until the first day of the court’s next session. The court’s next session is expected to be in April although the sitting has not yet been officially confirmed.
“If there is need to extend the order, the applicant will approach one of the Court of Appeal judges and make an application for extension,” Justice Nugent said.
Meanwhile, Tuesday’s ruling came after Justice Mosito’s legal representative, Advocate Monaheng Rasekoai, and the lawyer representing Dr Mosisili, Advocate Thetsane and the Attorney General, Senior Counsel Guido Penzhorn, as well as Lesotho Revenue Authority (LRA) lawyer Karabo Mohau (King’s Counsel), had argued the case.
During the argument, Advocate Rasekoai said it would not serve any purpose if the tribunal was set and proceeded with its investigation, only for the Court of Appeal to overturn the High Court’s decision.
“It would not be wise for the tribunal to proceed, only for the Court of Appeal to render those proceedings moot, if we succeed,” he said.
But Advocate Penzhorn maintained there was need for Justice Mosito to step down as Appeal Court president, until he has been cleared of the tax allegation levelled against him.
“When there are allegations made and one doesn’t know when the appeal is going to be heard, it is in the public interest that those allegations are investigated thoroughly.
“It is not in the public interest that he is sitting in the Court of Appeal,” Advocate Penzhorn said.
He further said there was no certainty whether the April Court of Appeal session would proceed as expected.
However, Advocate Rasekoai said the issue of when the appeal would be heard was not a judicial but an administrative matter and should not prejudice his client.
Advocate Thetsane on 21 August 2015 preferred criminal charges against Justice Mosito for allegedly not paying tax for his law firm from 1996 to 2014.
But nine days later, Justice Mosito filed a constitutional case to have the tax-evasion charge quashed.
And while the case was still pending in court, Dr Mosisili on 8 October 2015 wrote a letter to Justice Mosito asking him to show cause why he should not advise the King to form a tribunal to investigate allegations that he violated the country’s tax regulations.
Justice Mosito then filed an urgent application to block the letter and the matter, together with his first constitutional case to have his tax charge dismissed, were heard together.
The Constitutional Court on 15 December dismissed both applications but Justice Mosito immediately appealed the judgment.
However, Dr Mosisili wrote another letter on 16 December asking Justice Mosito to state, in writing, why the impeachment tribunal should not be established. The judge on 21 December responded by saying it could only be set-up after he has lost his Court of Appeal case.
But when Justice Mosito learnt about the invitation of South African judges to head the tribunal, he filed another case seeking an order stopping the impeachment proceedings, resulting in Tuesday’s ruling.
Justice Mosito was appointed Court of Appeal president on 15 January 2015.