Open letter to Prime Minister Thabane

Open letter to Prime Minister Thabane

Dear His Excellency Rt Hon. Prime Minister

It is just a little over a month ago (December 9, 2017) when we, concerned supporters of the speedy resolution to the swearing in of Professor Kananelo Mosito collectively called Hands Off Mosito Team, submitted our petition to you through the hand of the Hon Minister of Law and Constitutional Affairs.
Our position as regards the swearing in of Prof. Mosito as president of court of appeal following his appointment is now publicly known. It has not changed.

We are firmly in support of the swearing in of Prof Mosito as quickly as this process can be executed. We have advanced constitutional mechanisms to your office on how this can be done. One is through a proviso called mandamus which can be made through an application before the High Court.
If granted any public official can be cloaked with the power to carry out the act of swearing in the Chief Justice if other judges refuse to carry out their constitutional obligation.

Following our petition to you one significant development has taken place. This is in the form of a constitutional challenge to the appointment of Prof Mosito by four prominent lawyers who are determined to prevent him from being sworn in. So determined are they that they are willing to hold the whole judiciary at ransom just to achieve their aim.

They successfully managed to frustrate the sitting of the Court of Appeal last year, and if the expected constitutional challenge goes their way they will have dealt a double blow on the citizens of this country. Mr Prime Minister are you ready for this? We are not.

Significantly, one is aware of the prayers in the case filed before court by the applicants. The applicants are what one may call the usual suspects namely: Adv Motiea Teele KC, Mohau KC, Zwelakhe Mda KC and Attorney Qhalekang Letsika. None of the prayers in this case begs the court to stay the swearing in of Professor Mosito pending the finalisation of the court challenge.

They are all declaratory prayers where the applicants are merely praying the court to declare Professor Mosito’s appointment as null and void.
Perhaps there is a reason by the applicants why they have decided or omitted to include this prayer in their list of prayers. What is of utmost importance though is to draw attention to some of the arguments raised in the case by both the applicants and the respondents.

We are traversing these issues carefully mindful of the discretion of the courts to make any finding of their own uninfluenced by our perceptions or wishes.

One of the arguments raised by the applicants was in relation to the date on which the tribunal sat up to impeach Professor Mosito finished its work and how that date has an impact on the legal validity on the tribunal’s findings.

It emerged from arguments that the tribunal completed and appended its signatures to the report on December 9, 2015. Four days later on December 13, 2015 Prof Mosito tendered his resignation as president of the Court of Appeal to His Majesty, The King.
There is evidence that such a letter was received by His Majesty’s Private Secretary and understandably the letter was duly acknowledged and received.

On December 26, 2015 we learnt that His Majesty (replace His Majesty with the Prime Minister then Dr. Pakalitha Mosisili) went on nonetheless to fire Professor Mosito as president of the Court of Appeal. This was done despite receipt of Professor Mosito’s resignation letter.
Our difficulty with these narrated sequence of events stems from the logic of firing the person who has already vacated the position. Based on our argument, which we hope will be similarly adopted by the courts you cannot fire a person who has already resigned.

By extension therefore, the findings of the Brand Tribunal stopped having any bearing on Professor Mosito’s reappointment since he had resigned from the position before the findings assumed what one of the judges rightly called “their legal validity”.

Legal validity in our humble understanding, which we are optimistic that the courts will adopt in their judgment, is the point at which the findings were formally received by His Majesty and endorsed as official by means of a legal instrument called Legal Notice.

By raising the issue of legal validity the court rightly wanted the applicants to explain the relationship between Professor Mosito’s resignation and his purported firing as president of the Court of Appeal.
We all know His Majesty did not play a hand in the firing of Professor Mosito. It was all done by Pakalitha Mosisili who had not made it a secret how deeply he loathed Prof Mosito.

By contrast Prof Mosito has not expressed such views about Mosisili either in public or in private. Back to the subject; the applicants failed dismally. We hope the court will take cognisance of this failure in their assessment of whether the applicants have a case against Professor Mosito or not.
Our submission is that if we work from the standpoint of Professor Mosito’s resignation before the findings assumed their validity, there was therefore logically nothing wrong with his reappointment by the current Prime Minister.

Assuming he had not resigned and waited until the findings assumed their legal validity, then Prime Minister Thabane would have acted unlawfully by appointing him to the position.

Our submission is that the PM acted lawfully and it is our hope that the court will adopt a similar view.
Another argument raised by the applicants was that Professor Mosito’s appointment was unlawful because his predecessor’s termination was not done in accordance with the provisions of the constitution. Assuming that this is the position, the same former Court of Appeal president Robert Nugent, corrected the unlawfulness by resigning from the position.

He wrote to the PM confirming the same. He did not challenge his termination. In his letter to the Prime Minister Judge Nugent only complained of the unprofessional treatment he received from the government. Here we really feel for him. There was room for the government to afford him better treatment.

Here again we hope the court will adopt a similar view that the perceived unlawfulness of Judge Nugent’s termination was corrected by his own subsequent resignation. This act corrected his arbitrary termination by the government.

Lastly on these points of motivation, Hon Prime Minister, one of the judges asked the applicants whether they were asking the court to review the law used by you to appoint Prof Mosito or whether they were asking the court to review the process you followed when you appointed him.
When the applicants replied “the process” the judges whispered to each other and asked for a short adjournment. When they came back they closed the proceedings and deferred judgement to February 9, 2018.

In our view it is this answer which will bury the applicants’ case when the judges sit to write their judgement. Our understanding, which we are convinced will be adopted by the court, is that in his appointment of Professor Mosito, the Prime Minister got the process right from A to Z.
The vexing question before the judges premised on whether the appointee was a fit and proper person to hold the office of president of the Court of Appeal. The applicants draw their argument from findings of the tribunal to support their case.

There is a compelling affidavit by you Rt. Hon PM attached by Professor Mosito in this case. It makes a powerful argument in favour of why the PM considers the appointee (Mosito) as being more than suitable for the position. We are optimistic that the courts will give a lot of weight to this affidavit.

The PM strongly maintains that charges against Professor Mosito were trumped up and he provides a convincing background to back his arguments. This has always been our position too.

Secondly there are two legal developments that are of paramount importance in determining whether applicants have a case against Prof Mosito. One is that the “trumped up” tax charges against Prof Mosito were all dropped by the Acting DPP.
Secondly the findings of the tribunal, which the PM rightly challenges in his affidavit, have been set aside and declared as null and void by a competent court of law.

There has never been a challenge to the order since then.
Our disappointment regarding these significant court orders is that they were only filed late as supplementary documents by the respondents (Prof Mosito and others). We believe other respondents have extensively quoted and possibly filed them since they are of such a substantial importance to this case.

Our argument is that since the setting aside of the tribunal findings, the court cannot and should not allow the applicants to rely on them to base their case. Therefore if the court relies on the tribunal findings to rule against Prof Mosito this case should then go to appeal where it will be easily won. Applicants cannot rely on documents that have been set aside by a competent court of law to make your case.

However we are confident that the courts will dismiss this application by a majority decision (we heard a South African judge openly declaring that he agrees with the applicants’ case even before judgement is handed down) and thus pave the way for Mosito to be declared fit and proper person to hold the office of president of court of appeals.

And this is where our appeal lies with you Hon PM. We are understandably informed that a significant number of High Court judges are openly refusing to consider Professor Mosito as one of their own claiming that he is tainted. With respect this is tantamount to insubordination.
It is not up to any judge of any court, regardless of his or her position, to decide which judge is rightly appointed or not. Judges are not the appointing authorities and as such have no right to dictate who should or should not be appointed to the bench.

It is not their constitutional function to dictate to the PM how to make his constitutional choices. As such the Prime Minister should not allow himself to be dictated to by the judges (especially judges who have openly declared war against him by their unbecoming conduct) as to who or who should not be appointed to the bench.

If the government does not stamp its authority and show the judges that their behaviour cannot be tolerated because it is disrespectful of government, then we will be forced to go to the streets again to compel you, our PM to use your constitutional powers to rein in the errant judges.
Any judge who openly refuses to obey the sitting government of the day must be released from employment to go find suitable employment elsewhere. Since at the time of writing this open letter to you, our Hon PM there is still no court order against the swearing in of Prof Mosito.

We reiterate our demand that he should be sworn within the shortest space of time. There are available legal routes to use if the Chief Justice refuses to carry out this task. The constitution obliges her to do so and it would be grossly unfortunate if she were to decline to carry out this task.

Hon. PM please see to it that Professor Mosito is sworn in as soon as possible. Non action is as detrimental to the people’s confidence in your government as is wrong action. Doing everything constitutional in your power to have Mosito sworn in is the right thing to do.
This is a defining moment in your tenure as a prime minister of this country. Never let it go past you

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