Judges blast Thabane

Judges blast Thabane

MASERU – PRIME Minister Thomas Thabane “acted unreasonably, arbitrarily and irrationally” when he re-appointed Justice Kananelo Mosito as president of the Court of Appeal. That is the damning verdict by three High Court judges in a case in which four prominent lawyers were challenging Justice Mosito’s re-appointment.

The four lawyers, Attorney Qhalehang Letsika, Advocate Motiea Teele KC, Advocate Karabo Mohau KC and Advocate Zwelakhe Mda KC argued that Justice Mosito was unfit to hold office.

A coram of three foreign judges said the re-appointment of Justice Mosito was inconsistent with Lesotho’s constitution.
The judges were scathing in their assessment of Thabane’s decision to re-appoint Justice Mosito after he had been deemed unfit by a tribunal.
The judges also condemned the removal of Justice Nugent as Court of Appeal president to pave way for Justice Mosito as “null and void and of no force and effect”.

“The decisions of the second respondent (Thabane) to recommend the appointment of (Justice Mosito) to His Majesty the King and the subsequent appointment are reviewed and set aside as irregular and unconstitutional,” the judges said.

They said the re-appointment of Justice Mosito was “unconstitutional in that he is not a fit and proper person to hold judicial office by virtue of the findings of misbehavior(s) which rendered him unfit for office” as was found by the tribunal.

They also said the removal of Justice Nugent and the appointment of Justice Mosito was a clear breach of Lesotho’s Constitution.
The judges were equally scathing on Thabane’s decision to re-appoint Justice Mosito.

“Stripped to its essentials, the pith and marrow of the case is that (Thabane) cannot, on his own accord, vitiate the findings of the tribunal of their legal effect and their legal consequences by simply ignoring or circumventing them in order to reappoint the subject of the tribunal inquiry,” the judges said.

“Thabane did what he was not constitutionally allowed to do.”
The judges said the findings of the tribunal stand.

“The crucial finding of the tribunal was that Mosito was guilty of misbehavior and that such acts of misbehaviour rendered him unfit to hold office as a judge in general and that of the president in particular.”
They said those findings by the tribunal “cannot be undone by any of the respondents”.

“By reappointing (Mosito) as he did (Thabane) did something that negated the findings of the tribunal, something the supreme law does not countenance,” the judges said.

“A Prime Minister has no constitutional power to review the findings of a tribunal duly appointed according to the constitution.”
“We are of the view, and it is a very firm view, that (Thabane) overstepped the mark. (Mosito) openly told the tribunal last year that the political regime would change and that he would bounce back. Both events occurred in 2017.

“All this indicated that Mosito evidently sacrificed his requisite independence as a judge on the altar of political expediency. That is a lamentable state of affairs,” the judges said.

The judges also said Justice Mosito had failed to convince the court that charges of violating Lesotho’s tax laws were trumped up.
Agreeing with the senior quartet’s lawyer, Advocate Guido Penzhorn SC, the judges said if indeed the tax violation charges were trumped-up Justice Mosito should have refuted them, which he did not.

The judges referred to Justice Mosito’s testimony in the tribunal where he said he was not the only one who had defaulted, saying other judges and lawyers had also delayed to file their tax returns.

“By painting senior counsels and fellow judges with the same dirty brush which, as he alleged, was falsely used against him, he gave material credence to those criminal accusations,” the court said.
“His version was akin to a confession and avoidance type of pleading,” it said.

The court found that he “admitted the truth of some of those tax offences that were levelled against him”.
“Saying that he was not the only tax defaulter or culprit was no defence in law,” the court said.

The judges also crushed his later denials of tax offences by saying “a witness is not allowed to summersault”.
“When a witness makes a u-turn, he is held to his earlier answer,” the court said.
“In this instance, (Justice Mosito)’s earlier answer was that some of those tax violation charges were true,” it said.
“Consequently, it does not lie in (Justice Mosito)’s mouth now to say the tax charges were trumped up.”

On Thabane’s affidavit in which he defended Justice Mosito, the judges said his averments are “inconsistent with (Justice Mosito)’s previous statements”. “It is too late to do damage control now. The horse has bolted,” they said.

They also said Justice Mosito did not testify to alert the members of the tribunal that the tax charges were trumped up.
They said even if there was an improper political motive to dent (Juistice Mosito)’s professional career, such motive did not alter the fact that he broke the law by neglecting to submit income tax returns to the Lesotho Revenue Authority (LRA) over a number of years.

The judges said the tribunal decision was grounded “on the untruthful and accusative aspects of the testimony he gave during the course of the tribunal proceedings”.

They said these aspects included the admissions of committing the offences, the concessions he made, his prior abortive and litigious attempts to derail the tribunal process, his conduct in investigating the tax affairs of his peers as well as his conduct during the proceedings of the tribunal.
“Those were, and still are, material considerations regard being had to the aura, cloud and dignity of the public office in question,” the court said.
“The apex office of the judiciary is a very respectable office. So must be those who hold it,” it said.

“Their conduct should not dishonour that high office. Impeccable moral standing is a crucial hallmark of such a high public office.”
The court said he contravened the provisions of the revenue statutes when he conducted his own investigations into the tax affairs of fellow judges and lawyers to find that none of them fully complied with the tax requirements.

The court said the tribunal “was not impressed about (Justice Mosito)’s evidence pertaining to such conduct”.
“At one stage, (Justice Mosito) accused the chair of the tribunal of siding with the prosecution. By that he was referring to Mr Penzhorn, who was leading evidence at the tribunal inquiry,” the court said.

They quoted the tribunal where it said “Judge Mosito’s conduct, even in relation to his prosecution and to this enquiry …constitutes misbehaviour …he should be removed from office in the Lesotho judiciary”.
The tribunal also said Justice Mosito lied under oath when he said he had complied with tax requirements.

“There has been no successful legal challenge to those findings of the tribunal,” the court said.
“Until set aside by a competent court those findings have specific legal consequences,” it said.

“The King acted on them as he was constitutionally obliged. He removed (Justice Mosito) from office owing to his unfitness to hold such office.”
The judges said no decision grounded in the constitution or law may be disregarded without recourse to a court of law.
The judges said they are bound to abide by the findings of the tribunal irrespective of whether they are wrong or right.

“By that finding we are bound. By the abortive agreement to nullify the tribunal findings we are not.”
Talking about Justice Mosito’s resignation before the King could slap him with a dismissal letter, the judges said chances are he knew what had been recommended because his lawyers had been given a copy of the tribunal’s findings.

“The simulated resignation was awfully belated. By then the verdict that he was guilty of two acts of misconduct unbefitting for a judge had already been reached, signed and sealed.”

Staff Reporter

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