Mosito’s lawyers attack Mosisili

Staff Reporter

MASERU

A team of lawyers representing suspended Court of Appeal President Justice Kananelo Mosito have accused Prime Minister Pakalitha Mosisili of abusing his power and persecuting the judge.

Advocates R Thoahlane and N Pheko told the Constitutional Court in their written heads of argument that the decision by Mosisili to advise the King to set up the tribunal to investigate Justice Mosito’s fitness as a judge “is not only persecutory and prejudicial, but it is also an abuse of public power”.

“It is undesirable to open the issue of the fitness of (Justice Mosito) to hold the office again on the basis of some newly discovered alleged acts of misbehaviour which occurred prior to his appointment as President of the Court,”part of their arguments read.

“There must be finality to this persecution of (Justice Mosito) by the executive branch of government.”

Justice Mosito approached the Constitutional Court on an urgent basis last week seeking an order to permanently halt the Prime Minister from investigating him.

He argues that it is wrong for the Prime Minister to cause his suspension before the tribunal set up by the King determines whether he is guilty or not.

He also contends that it is wrong for Mosisili to seek to push for his ouster for misdemeanours committed before he was appointed a judge.

The Director of Public Prosecutions Advocate Leaba Thetsane KC brought against him charges of failure to file tax returns to the Lesotho Revenue Authority between 1996 and 2014.

Justice Mosito’s argument is that a judge can be removed for reasons of incapacity or misbehaviour only if such wrongs were done “during the judge’s occupancy of office”.

“Such conduct and behaviour when taken together, amount to misconduct in relation to his duties and/or misbehaviour in office,” part of the heads of argument reads.

He also argues that Mosisili did not give him an opportunity to be heard before he decided to advise the King to set up the tribunal to investigate his fitness as a judge.

“Such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision that vitally concerns (him), and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way,” his lawyers argued.

“In judicial review applications the notion of natural justice is now treated as a requirement to achieve substantial fairness.”

Lawyers representing the Attorney General Tšokolo Makhethe and Mosisili said it is correct that Justice Mosito is being tested for fitness as a judge and if found unfit he should be removed.

Senior counsel GH Penzhorn and Roland Suhr from Durban said if a senior lawyer’s wife dies of what is believed to be natural causes and later when the lawyer has been appointed judge it is discovered that he killed her, the Prime Minister should not be obliged to ignore such evidence.

“On (Justice Molise)’s version the Prime Minister would be obliged to ignore such evidence and the judge would continue to carry out his judicial duties unhindered by the investigations of a tribunal into his fitness for office,” they wrote.

“Likewise, the advocate who has business interests, and after his elevation it emerges that he was guilty of fraud in conducting such business, will on (Justice Mosito)’s contentions enjoy immunity against investigation by a tribunal,” they said.

“It follows on (Justice Mosito)’s reasoning that the same judge will also enjoy indefinite immunity against prosecution because if a tribunal cannot consider the misconduct then neither can a criminal court do so because a prosecution must be preceded by a tribunal.”

The two senior counsel argued that a judge “who is guilty of previously undisclosed misbehaviour may very well not be able to perform the functions of his office, in doing so, it would bring his office into disrepute”.

The lawyers also said Justice Mosito “did not challenge the constitutionality of any legislation” when he approached the Constitutional Court seeking constitutional redress.

“The Constitutional Rules are principally intended to deal with testing the constitutionality of legislation rather than the resolution of individual disputes such as those of (Justice Mosito),” they said.

Responding to charges that Mosisilihad not given Justice Mosito a chance to be heard, the two lawyers said “it is evident from the record that the Prime Minister observed the audialterampartem rule in respect of (Justice Mosito)’s fitness for office”.

They said on October 8, 2015 Mosisili wrote Justice Mosito inviting him to “provide reasons why a tribunal should not be appointed”.

Justice Mosito’s response “was to launch an ex parte application to prevent the Prime Minister from acting further in terms of section 125(5) of the Constitution”.

Justice Mosito’s application was dismissed and on December 16, 2015 Prime Minister Mosisili wrote him again making the same invitation.

On the same day Justice Mosito launched an urgent application in the Court of Appeal to prevent Mosisili from continuing with the proceedings to remove him.

On February 4, 2016 Mosisili wrote a letter advising Justice Mosito about the appointment of the tribunal and the grounds on which the enquiry was to proceed.

On February 8 the Prime Minister wrote another letter inviting Justice Mosito to show cause why he should not be suspended from office pending the determination of the tribunal.

Justice Mosito responded on February 10 by filing an amended notice of motion seeking a review and interdict.

“Significantly, in none of the many affidavits to which the applicant has attested, nor in correspondence to the Prime Minister, has the applicant disputed the gravamen of the charges against him or sought to demonstrate that there was not reasonable and probable cause for such charges,” they said.

They argued that Justice Mosito’s “belated complaint that he was not provided with reasons for the Prime Minister’s decision to recommend the appointment of a tribunal…rings hollow as (he) neither requested reasons by way of a letter nor by making use of the procedure for review provided for in High Court Rule 50”.