PORT ELIZABETH - Judge Mandela Makaula on Tuesday dismissed an application in the Port Elizabeth High Court for leave to appeal his earlier decision not to recuse himself in the rape trial involving Nigerian pastor Timothy Omotoso.
In handing down judgment, Makaula said the defence’s argument that he had a “cosy” relationship with state witness, Cheryl Zondi, was disingenuous and deliberately taken out of context.
“The anguish that Ms Zondi was in at the time she testified was abundantly clear. She was continually getting emotional, shedding tears and breaking down at times.”
Makaula said because her testimony was broadcast live on television her condition in the witness box was public knowledge.
He said it was during those moments that he used the impugned expressions which are not reflected in the record.
“I can see that you are crying or emotional, are you still okay? Do you need a break? Do we wish that we adjourn so that you may compose yourself,” Makaula asked Zondi at the time.
Makaula said that it was the duty of a legal practitioner to serve his client to the best of his ability but the defence also had a duty to assist the court in arriving at a just decision and not to use strategies to set the court up for failure.
Makaula said that defence advocate Terry Price presented an argument in an unprecedented manner referring to when Zondi was shown an air ticket indicating Omotoso was in America at the time she alleged he raped her at a house in Durban.
Before the defence could show Zondi the air ticket during cross-examination, she stated she had forgotten about the overseas trip.
Makaula at the time made an observation that the record should show she mentioned the trip to America before she could see the air ticket.
Attorney Peter Daubermann was in agreement with Makaula at the time.
The defence has argued that the court was protecting Zondi but Makaula said in his judgment that if he had not raised it, the record would not have shown that she said it before seeing the air ticket.
Makaula also dismissed an application for leave to appeal his earlier decision not to quash the charges against Omotoso and his alleged accomplices Lusanda Sulani and Zukiswa Sitho.
Makaula said he was taken aback by the timing of the application for leave to appeal his decision not to quash the charges
He said that he had dismissed the initial application at the commencement of the trial and no reasons were sought at the time. He had indicated that reasons for his refusal to quash the charges would be given during or at the end of the trial.
“It is astounding under such circumstances to learn in the applications for leave to appeal that I refused to furnish reasons,” he said.
Daubermann has now indicated that he plans to petition the Supreme Court of Appeal (SCA).
The case was postponed provisionally until December 10.
The Nigerian pastor faces 63 main charges and 34 alternative counts which include human trafficking, rape, sexual assault, racketeering and conspiracy in aiding another person to commit sexual assault.
His two co-accused, Sulani and Sitho, are accused of recruiting girls from all over the country for purposes of sexual exploitation.
The 58-year-old televangelist allegedly trafficked more than 30 girls and women who were from various branches of his church to a house in Umhlanga, KwaZulu-Natal, where he allegedly sexually exploited them.