M14 million budgeted for Mosito’s ouster

M14 million budgeted for Mosito’s ouster

MASERU – FORMER Attorney General (AG) Tšokolo Makhethe was so determined to push out Court of Appeal President Justice Kananelo Mosito that he asked the government to provide a staggering M14 million for the judge’s impeachment. That budget was double what Makhethe had asked for the impeachment of former Court of Appeal President Justice Mathealira Ramodibeli in 2013.  The removal of Justice Ramodibedi was however aborted after he resigned before he could be dragged before a tribunal.

thepost has been perusing the case files of the vicious court battles that pitted Makhethe against Justice Mosito.
A picture is beginning to emerge of how Makhethe could have used his position as AG to pursue what other lawyers have described as a personal vendetta against Justice Mosito.

The AG had the support of five senior lawyers and the then Prime Minister Pakalitha Mosisili. Also in his corner was Advocate Leaba Thetsane, the Director of Public Prosecutions (DPP) who is now being pushed out of office by the new administration.
He also had the government’s humongous resources to get the best lawyers money could hire.

Makhethe had predicted in a December 2015 memo requesting money from the Government Secretary that the fight to impeach Justice Mosito would be “hard-fought”. In the memo the AG curiously describes Justice Mosito’s impeachment as a “project” that is “financially demanding”.
He reminded the Government Secretary that the government had set aside “no less than” M7 million for Justice Ramodibedi’s impeachment in 2013.
“For the present impeachment I would suggest double the amount,” Makhethe said. “There is no prospect of resignation here. It is likely to be a hard-fought battle to the finish.”

He said there was need to “join hands” to “cushion the impeachment process with funds to enable it to be conducted smoothly”.
The AG then suggested how the financial burden of the impeachment would be shared. His office, he said, would pay the lawyers who would appear before the tribunal for both the government and Justice Mosito.

He suggested that the Ministry of Justice would pay the sitting allowances, accommodation and “other remuneration” for the three judges of the tribunal. The ministry was also supposed to pay the bill for their welfare and logistics. And as if to cover all angles the AG also suggested that the Government Secretary “may wish to consider what part the Cabinet Office may have to play, be it financially or otherwise, in order to contribute to the project”.

He suggested that because the judges will be senior legal professionals they will be paid according to the rates used for judges of the Court of Appeal.
But he also left room for the government to use its “discretion” “given the nature of the job to be done”.
“As I say, all indications are that the legal contest before the tribunal will be hard-fought, with both sides pulling all stops to pursue the ends of justice.”

On the same day he asked for money Makhethe also sent a short memo to Prime Minister Pakalitha Mosisili to announce that he had found three “top-notch” judges to be appointed to the tribunal.  They were Justice Frederik Brand, Justice Noel Hurt and Justice John Foxcroft who are all from South Africa. The memo would however cause Makhethe grief when Justice Mosito and his legal team tried to use it to prove that the judges were likely to be biased because they had been indirectly appointed by the AG.

Of particular concern to Justice Mosito and his team was the last sentence of the memo which he says “I am in constant contact with them and they stand ready to serve”.  During the tribunal Justice Mosito would also allege that Makhethe had exchanged e-mails with the three judges and that he had surreptitiously visited their hotel rooms.

In response to that one of the judges had said although he was not under oath he could assure Justice Mosito that there was no such meeting.
Justice Mosito retorted by alleging that the judges were in league with those who wanted to impeach him.
The judges demanded an apology for that allegation but Justice Mosito did not budge, insisting that the impeachment was politically motivated.
A day before asking for the M14 million from government the AG had written to each of the three judges offering them sumptuous remuneration.

It would appear that the amounts he offered had little to do with the Court of Appeal rates he had suggested in the letter to the Government Secretary.
Instead, it seemed he used his ‘discretion’ to decide the fees for the judges.
In the offer letters Makhethe promised what even judges of the Court of Appeal would consider astounding.
Each judge was to be paid M20 000 sitting allowance per day.

They would each get a daily allowance of M10 000 for “research and preparation”.
That was in addition to the M5 000 per day allowance to write the report after the tribunal.
Their lodgings, food, bodyguards and chauffeurs were also paid by the government. By rough estimates each judge could have easily walked away with nearly M300 000.

To put it into perspective, that is almost the same monthly salary of a High Court judge. For the prosecution the AG turned to Webber & Newdigate which played a very wide role in the impeachment proceedings. Advocate Daniel Roberts, a senior lawyer who is a partner at the firm, was hired to assist with ‘administrative’ matters during the prosecution. Webber & Newdigate hired Advocate Penzhorn, another senior lawyer the AG has previously used in numerous cases, to prosecute Justice Mosito. He was assisted by Advocate Suhr.

Both lawyers had to travel from South Africa. Both had been instructed by Advocate Roberts. But the law firm’s role went beyond just providing legal counsel and helping on administrative issues.  They called themselves pro forma complainants against Justice Mosito.
That meant that they were the ones who were complaining about Justice Mosito.

In other words in addition to having a hand in the appointment of the judges on the tribunal the AG had also appointed the prosecutors.
Sources close to the case have told the thepost that Webber & Newdigate could have walked away with more than a million maloti for their work in the case.

Yet the firm’s involvement in the case did not end there. Advocate Penzhorn is the same lawyer who was hired by the DPP in the Lesotho Revenue Authority (LRA) tax case against Mosito. Justice Mosito was facing 19 charges of failing to file his tax returns. That would be the cornerstone of the charges of the impeachment proceeding after Mosisili seized on it as proof that Justice Mosito was not fit to be a judge.
So Advocate Penzhorn was fighting Mosito on two fronts: the criminal and the impeachment case which were intricately linked.
Again he had been instructed by Webber & Newdigate.

Both the DPP and the AG seem to have had an axe to grind with Justice Mosito. In 2012 the government had sought Justice Mosito’s legal advice on the retirement ages of the two. Ironically it was the AG who had contracted him on behalf of the government to provide that legal opinion.
Justice Mosito’s view was that both the AG and the DPP should retire at 55.

Mosito told the tribunal that was the beginning of the grudge between him and the two lawyers.
The judge also repeated that allegation in affidavits for several other cases he filed in a desperate bid to defend himself.
Justice Mosito told the tribunal that the AG and DPP thought “he was expelling them from work”.

“They pursued me like dogs pursuing a hare because they had this spirit of revenge…,” Justice Mosito told the tribunal during a heated exchange.
Makhethe’s first strike against Justice Mosito came a few weeks after the judge was appointed Court of Appeal president.
The AG, with the support of five senior lawyers, challenged Justice Mosito’s appointment on account that it had been made by a ‘caretaker government’.

He further argued that Justice Mosito was being rewarded for having provided legal advice to the government.
Once again state resources were used to hire the lawyers to represent the AG in the court battle.
The case would go all the way to the Court of Appeal where the AG lost.

In June that year Justice Mosito presided over his first session of the Court of Appeal. But as he was dealing with cases with judges he had hurriedly hired after the South African contingent of judges had resigned en masse another storm was coming his way. Some weeks earlier the government had allegedly refused to fund his trip to Namibia to negotiate with a judge he wanted to appoint to the Court of Appeal bench.

Justice Mosito had used his means to negotiate with judges from Zambia, Namibia, Zimbabwe and South Africa.
The Court of Appeal session had just ended when the DPP filed a motion to indict him on 19 charges of failing to file tax returns. Mosisili seized on those allegations to start pushing Justice Mosito out.

The tribunal was appointed in February 2016 and started the hearing in March. The hearing was concluded in October and the tribunal finalised its report on December 9.  Justice Mosito resigned on December 13, ten days before the tribunal’s report reached the King.
Despite having received Mosito’s resignation ten days earlier the King proceeded to ‘remove’ Justice Mosito. He said he was doing so based on legal advice. It is not inconceivable that the advice had come from Mosisili who as prime minister relied on the advice of the AG as the government’s chief legal officer.

Staff Reporter

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