Read more
The defence accused the state of attempting to 'reverse engineer a factual finding in the hope that it might later justify an appeal'.
Nigerian pastor Timothy Omotoso appears at the Gqeberha High Court on 22 January 2024. Picture: Gallo Images/Die Burger/Lulama Zenzile
The National Prosecuting Authority (NPA) believes that clarification from the courts regarding the acquittal of rape-accused Nigerian televangelist Timothy Omotoso could strengthen its case before the Supreme Court of Appeal (SCA).
However, the defence rejected the move, accusing the state of trying to get the court to reconsider its decision.
The Eastern Cape High Court in Gqeberha on Monday began hearing the first phase of the state’s application for leave to appeal.
The application follows Judge Irna Schoeman’s April ruling, in which she acquitted Omotoso and his co-accused, Lusani Sulani and Zukiswa Sitho, on a range of charges following an eight-year trial.
The court found that the state had failed to prove its case beyond a reasonable doubt and also criticised the poor quality of the prosecution.
Although the NPA is appealing the judgment, Omotoso has since left South Africa, having been declared a prohibited person by the Department of Home Affairs.
NPA seeks clarification on Omotoso acquittal
During proceedings, the state requested that Schoeman clarify the factual findings based on the evidence presented during the trial.
Alpa Bodlani, representing the NPA, stressed that the state was not asking the judge to revise or revisit her ruling.
“We want the clarification so that we may ask the court to reserve questions of law. But that’s something that we intend to do once we have received the clarification,” he said.
The lawyer emphasised that the 2 April judgment stands.
ALSO READ: Batohi explains why NPA did not investigate prosecutors in 2021 Omotoso trial
Referring to precedent from another judgment, Bodlani explained that the SCA had outlined three requirements that must be met before a question of law can be reserved under the Criminal Procedure Act including the legal issue must be stated clearly, the underlying facts must be well-established, and the record must reflect both the facts and the legal question.
“Unless the state does this, the court continues. It may not be possible for an appeal court to establish certainty about what the conclusions made by the trial court and the legal court were.
“So when it is unclear from the judgment of the trial court what its findings of fact are, it is necessary for the state to request it to clarify its findings. If this is not done, the point of law is not properly reserved,” he explained.
Bodlani stressed that the state did not know what the factual findings are.
“We don’t see those conclusions of that in the judgment.”
Defence strongly opposes NPA’s request
In response, Omotoso’s lawyer, Peter Daubermann, argued that Schoeman’s ruling was final.
“You discharged your function and cannot now supplement, elaborate or revisit your factual findings,” he said.
Daubermann contended there was no legal mechanism for the NPA’s request.
“The Criminal Procedure Act contains no provision expressed or implied allowing the state to request clarification of factual findings after an acquittal.
READ MORE: Omotoso acquittal points to NPA dysfunction, activists say
“The only possible mechanism would be Section 319 of the Criminal Procedure Act, which the state has not invoked.
“There is no application to reserve a question of law and only today, as the state stated, an intention to do so.”
The lawyer accused the state of attempting to “reverse engineer a factual finding in the hope that it might later justify an appeal”.
He maintained that the request for clarification is “procedurally impermissible”, adding that the judgment is not ambiguous.
“It is long, reasoned and careful.”
State accused of trying to reopen Omotoso rape trial
Daubermann further criticised the request, describing it as a “retrospective fishing expedition”.
“It amounts to an impermissible attempt to reopen the trial, re-litigate the facts, and circumvent the acquittal under the guise of seeking clarity.”
He also argued that the state had missed the deadline to file an appeal.
“In terms of the Criminal Procedure Act, such an application had to be brought within a reasonable time. A reasonable time in the circumstances would be 21 days. It is now more than 90 days after judgment was delivered in this case.”
Moreover, Daubermann warned that granting the state’s request would undermine legal certainty.
“If this type of application were entertained, it would mean that an accused person would never know whether the judgment is final, because any court, any judge or magistrate would be entitled to amplify the judgment. There would be no finality.”
Schoeman will deliver her verdict next Tuesday.
NOW READ: Batohi not worried about Omotoso’s deportation as NPA plans to bring Gupta brothers back to SA
