How the State bungled the Timothy Omotoso rape trial

Scenes of jubilation played out at the Gqeberha High Court as televangelist Timothy Omotoso and his co-accused Lusanda Sulani and Zukiswa Sitho walked free after a marathon eight-year trial. 

Omotoso and his two co-accused were acquitted of all charges when Judge Irma Schoeman delivered her judgment Wednesday morning - placing under scrutiny the State’s failure to prove its case beyond reasonable doubt. 

According to Schoeman, the State’s bungling of the case was when it failed to properly cross-examine the accused when they had ample time to do so, adding that it was the State’s responsibility to present compelling evidence against the accused and it was not the onus of the accused to prove their innocence. 

Immediately after the court adjourned, Omotoso, Sulani, and Sitho kneeled in the dock and started praying. 

Omotoso indicated that he would not immediately pursue compensation for his lengthy incarceration.

“I will rest first,” he said. 

The trio were arrested in April 2017 and faced charges of racketeering, trafficking in persons, rape, and sexual assault.

Cheryl Zondi, who was a marketing student when she took the stand in 2018, was the only complainant who testified throughout the proceedings. Zondi claimed that they were chosen to take part in church activity under the pretext that they would benefit spiritually or improve the quality of their lives.

Dealing with elements of the cross-examination, Schoeman gave the State a tongue-lashing for its failure.

“The cross-examination of the accused was desultory in the extreme. No thought went into it. The trial was set down for nine days to deal with the evidence of the defence. Accused one (Omotoso) testified for a whole day setting out his defence but the cross-examination of the accused lasted less than a morning session.

“He was not cross-examined on his denial with reference to the complainant’s testimonies. No attempt was made to elicit inconsistencies or improbabilities. His cross-examination consisted mainly of putting a very limited synopsis of the complainant’s evidence, which he denied,” said Schoeman.  

She said there was ample evidence that the veracity of Omotoso’s evidence could have been tested against. 

“The cross-examination was shallow and lacking the intention to uncover the truth. Similarly ineffectual and superficial was the cross-examination of (Sulani and Sitho) that amounted to no cross-examination at all.” 

Schoeman averred that the poor quality of cross-examination had the effect that the accused’s evidence was not placed in dispute. 

Omotoso was the leader of the Jesus Dominion International (JDI) church and his co-accused were his assistants. JDI had major branches in South Africa, Nigeria, and Israel, with Durban being its headquarters in the country.

He allegedly directly or indirectly through his co-accused, paid and arranged for the complainants to travel to his hotels in Durban, Israel, or Nigeria. 

Once at the destination, the complainants were allegedly instructed to switch off their phones and “told not to contact male companions and were to further abide by his instructions”.

National Prosecuting Authority (NPA) spokesperson, Luxolo Tyali, said: “The complainants and other female church members were allegedly kept in one room where they also slept. Omotoso would allegedly select one of the complainants to go to his private bedroom where he raped or sexually assaulted them.” 

Tyali said the prosecuting team will study the judgment and decide which legal avenues to explore.

"Since the arrest of the trio in April 2017, their trial has been protracted with numerous obstacles including interlocutory applications by the accused that even included Constitutional Court challenges. The most recent applications were for five special entries for a mistrial...

"In as much as the NPA does not seek to secure a conviction at all costs, it remains committed to ensuring justice is served for the victims of crime and will go to all lengths to give a voice to the victims by exploring all the possible avenues," said Tyali. 

Sonke Gender Justice co-executive director, Bafana Khumalo, said they were appalled by the outcome. 

"This is an injustice and secondary victimisation of the survivors who placed their lives on the line to challenge Omotoso.

"It is inexplicable why the prosecution performed so dismally in this case in a country where GBVF and sexual offences are so high. The pronouncements by the presiding officer are damning on the poor presentation by the NPA.

"It is our strong view that there must be consequential management on this massive poor performance by the prosecution. It is such lapses by the criminal justice system that discourages many victims and survivors of sexual violence from coming forward to report their cases," said Khumalo.  

Cape Times