Victory for LRA boss

Victory for LRA boss

MASERU – THE Lesotho Revenue Authority (LRA) Commissioner General Thabo Khasipe has won a case in which he was challenging the crown’s unilateral decision to prosecute him for violating Lesotho’s tax laws.
The judgment was delivered on Tuesday.

However, a coram of Constitutional Court judges consisting of Chief Justice Nthomeng Majara and Justices Sakoane Sakoane and Keketso Moahloli did not agree on the judgment. Chief Justice Majara and Justice Sakoane found that the Director of Public Prosecutions (DPP)’s unilateral decision to charge, remand and prosecute Khasipe for offences under Income Tax Act was unconstitutional.

Chief Justice Majara and Justice Sakoane ruled that the DPP had “usurped its enforcement role and thereby crossed the constitutional boundary”.
The judges said the LRA has “the statutory duty to institute criminal proceedings for offences under the Income Tax Act” and when it has not done so the DPP “cannot do so unilaterally and directly”.

On the other hand the dissenting judge Justice Moahloli found that Khasipe approached the Constitutional Court saying he was referring “the question of the unconstitutionality of the DPP’s decision to charge and remand (him)” for its determination.
Justice Moahloli said Khasipe’s prayer “does not explain what question of interpretation of the constitution precisely should be determined by the Court”.

“The founding affidavit itself merely alleges that the DPP’s decision is unconstitutional because it violates the principle of illegality and is irrational, unfair, unreasonable and arbitrary, without formulating the precise constitutional question to be answered and specifying the actual provision(s) of the Constitution requiring clarification/interpretation,” Justice Moahloli said.

He said it is only in the heads of arguments that for the first time there is some inkling of what the question of interpretation of the constitution referred to the court might be. He said the question for interpretation is whether or not the principle of legality applies to the powers of the DPP under the constitution and the Criminal Procedure and Evidence Act, and to what extent.

Justice Moahloli said the magistrate who referred the matter to the Constitutional Court after Khasipe argued that the DPP’s decision was unconstitutional was supposed to set out with certainty and precision what this question of constitutional interpretation he wished the court to answer was.

He also said this should have been put in the prayers to the court instead of coming late in the heads of arguments.
He said the responsibility of framing the question, determining whether it is substantial, and actually referring it to the Constitutional Court falls squarely and solely on the magistrate.

“But in practice the party or parties requesting referral are expected to assist the magistrate craft the question and ensure that the correct question is referred,” the Judge said.

“The High Court is not allowed to frame the question itself or reframe it,” he said.
“Obviously neither are the parties themselves allowed to do so when the referral is already being considered by the High Court,” he said.
“This court cannot therefore be required to answer questions which have not been referred to it by the magistrate.”

Justice Moahloli said the Constitutional Court is “entitled to refuse to answer the question referred to it for interpretation if it is convinced that the question is not one properly referred”. “No question of constitutional interpretation arises,” he said.

Chief Justice Majara and Justice Sakoane however held a different view arguing that a referral is not a constitutional review of the proceedings in the lower court “but a guidance or answer to a question arising thereat necessary for disposal of the proceedings”.

They said Khasipe’s notice “seeks to impugn the decision of the DPP to institute criminal proceedings for contravention of revenue laws”.
“The (DPP’s) decision is a product of exercise of the powers conferred on the DPP by section 99 of the Constitution,” they said.Section 99 of the Constitution gives the DPP power in any case in which he considers it desirable to do so to institute and undertake criminal proceedings against any person before any court (other than Court Martial) for any offence committed by that person.

It also gives him powers to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority. Chief Justice Majara and Justice Sakoane said those powers should be compared and contrasted with the powers of the LRA which empowers the authority to administer and enforce the laws set out in the Income Tax Act.

They said the DPP’s power to take over and continue criminal proceedings instituted by a person or authority “is an indicator that institution of criminal proceedings is not the sole preserve of the DPP”. They said the LRA has not used its statutory powers to institute criminal proceedings against Khasipe but the DPP has charged him under the Income Tax Act.

“The DPP has, in a sense, usurped its enforcement role and thereby crossed the constitutional boundary,” they said.
“The DPP’s power to institute criminal proceedings, as opposed to the power to intervene and take over proceedings instituted by a person or authority, is a power that serves to bring charges initiated by police investigations,” they said.

“It is not a power that can be invoked in respect of proceedings under the enforcement powers of the Lesotho Revenue Authority.”
Khasipe was headhunted for the vacant position of LRA Commissioner General in early 2016.
At the time he was the Deputy Executive Secretary of SACU in Windhoek, Namibia, receiving remuneration and benefits three times more than he is getting at the LRA.

In May 2016, he learnt in a conversation with the then Finance Minister, that the Directorate on Corruption and Economic Offences (DCEO) was investigating his tax affairs. He asked the LRA Commissioner of Income Tax to verify his tax compliance status and to advise him accordingly.
He was told that he had filed some tax returns late and he paid penalties as imposed by the Income Tax Commissioner.
After that he applied for a tax clearance certificate which was granted to him.
In February 2017 he was however charged with 13 counts of contravening the Income Tax Act in the magistrate’s court.

Staff Reporter

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