Mosito fights back

MASERU – A decision to charge Court of Appeal President Justice Kananelo Mosito should be set aside as it was made on the basis of tax information obtained from the revenue authority without a court order.

This is according to Justice Mosito’s lawyer Advocate Monaheng Rasekoai in his heads of argument before the Court of Appeal.

Rasekoai says the obtaining of the tax information without a court order was “in violation of the confidentiality provisions of the Income Tax Act No 9 of 1993 and the Lesotho Revenue Act No 14 of 2001”.

He says contrary to the Director of Public Prosecution (DPP)’s, Advocate Leaba Thetsane KC, assertions, Justice Mosito was not charged for “tax evasion” but with “late filing of tax returns”.

Justice Mosito argues that “the institution of criminal proceedings against him is unconstitutional and unlawful”. He wants an order to set aside the decision of the DPP to institute criminal proceedings against him.

He says before the DPP decides to prosecute “a sitting judge, an independent tribunal must first investigate the basis for the proposed charges and the removal or suspension from office of the judge and find that the charges are well founded”.

Such a process is meant to protect judges against frivolous or vexatious prosecution, he says.

Justice Mosito is challenging the DPP’s decision to charge him with failing to file tax returns on time while a tribunal appointed by King Letsie III is still seized with the matter to ascertain whether he is guilty or not.

He argues that the DPP should wait for the findings of the tribunal first and it is only after that should it proceed with the criminal prosecution.

Rasekoai told the Court of Appeal on Monday that Thetsane KC had deposed to an affidavit saying he got the tax information from the police docket.

He said the police got the information unlawfully from the LRA.

Rasekoai said the disclosure of any documents or information received by the tax authorities, which includes information relating to the status of a taxpayer, “may only be disclosed to any person outside LRA pursuant to a court order”.

“No exception is made for the police or prosecution authorities under s202. They too are subject to and are bound to respect the secrecy provisions,” Rasekoai said in the heads of argument.

He said the confidentiality provisions are meant to create an environment for taxpayers to feel free to divulge information to the LRA for the purpose of meeting their tax obligations without fear that the same information will be disclosed to any other person.

“This does not mean that the police and prosecution services can never obtain an individual’s tax records and confidential tax information,” Rasekoai said.

“But such information may only be obtained pursuant to a court order,” he said.

He added that since Mosito’s appointment, there have been several attempts “by the executive branch” to remove him from office.

He said in February last year the Attorney General Tšokolo Makhethe instituted an application in the High Court challenging the lawfulness of Justice Mosito’s appointment as the President of the Court of Appeal.

Makhethe’s argument was that the appointment was unlawful because cabinet had not been consulted before former Prime Minister Thomas Thabane could advise the King to appoint him.

The High Court however dismissed the application saying the Prime Minister did not have to consult anybody as he had used his prerogative powers.

Four months later, after the killing of army boss Maaparankoe Mahao in a military operation and when SADC established a commission of inquiry, Prime Minister Pakalitha Mosisili sought to extend the scope of the SADC probe to include “the appointment of a new President of the Court of Appeal”.

On August 21 the government withdrew that additional term of reference under SADC pressure but the DPP instituted the current criminal proceedings shortly thereafter.

“We need to point out that it is not possible on the papers for this court to comment on the motives that have informed the steps taken by the executive against (Justice Mosito),” Rasekoai said in his papers.

“It is not necessary nor desirable to do so. However, the facts do demonstrate a clear intent and determination by the Executive to remove (Justice Mosito) from office,” he said.

He argued that the executive, through the DPP, violated the constitution by attempting to remove Justice Mosito from office through criminal prosecution without following the law.

“It was the intention of the framers of the Constitution that a judge could not be prosecuted, convicted and sentenced before he was either suspended from performing the functions of his office and/or removed from office,” he said.

Rasekoai said the Constitution only allowed an appointed judge to be removed from office for inability to perform the functions of his office…or for misbehaviour “and shall not be removed except in accordance with the provision of this section”.

“Procedures should be followed to avoid as far as possible any suggestion that a particular judge is being victimised by the executive for his or her views or decisions,” he argued.

“For this reason special procedures are usually followed in democratic societies where allegations of serious criminal conduct are made against a judge,” he said.

“Such procedures ordinarily involve the holding of an independent enquiry into whether or not the judge should be impeached. If the allegations are then found to have substance, the judge is impeached, a criminal prosecution may follow.”

The DPP’s response through Webber Newdigate’s Advocate Loubster was that Justice Mosito was suspended from office on February 12, eight days after the King established the tribunal to probe if he qualified as a judge.

“Given that the appellant (Justice Mosito) has, since the filing of the appeal, been suspended from office this ground of appeal has been rendered moot and on (Justice Mosito’s) present version there is no impediment to the prosecution,” Loubster said.

He argues that an enquiry set up by the King to ascertain if Justice Mosito has misbehaved in terms of section 125 of the constitution and a criminal prosecution are “separate and distinct processes”.

“One may precede or follow the other but neither can immunise the subject of it against the effect of the other process,” he said.

“The tribunal appointed in terms of section 125 has no role to play in criminal prosecutions,” he said.

The DPP argues that the notion that a judge cannot be prosecuted for any offence unless a tribunal constituted in terms of section 125 has pronounced on his misbehaviour “offends against any idea of justice and is calculated to bring the administration of justice into disrepute”.

“Judicial independence cannot shield a judge from the consequences of his criminal conduct. Section 125 does not provide any such protection, which would in any event directly conflict with the equality principle in section 19.”

Staff Reporter