Mistrial Lurking In Pastor Timothy Omotoso’s Trial
Pastor Timothy Omotoso who was arrested illegally without a warrant on the 20th of April 2017 at the Port Elizabeth International Airport is on the verge of having his trial declared as mistrial if confidential emails between the lead prosecutor and his team are to be considered.
The judge Irma Schoeman who was appointed to preside over the trial in March 2019 after Judge Mandela Makaula recused himself, is to decide if the trial should be declared a mistrial with lawyers for Pastor Omotoso claiming that the prosecution team under advocate Nceba Ntelwa conspired to persuade witnesses to commit perjury.
It would be recalled that Mandela Makaula in the interest of justice recused himself from the trial on Friday 15 March 2019 when it was discovered that his wife’s company, which runs a guesthouse, accommodated a number of state witnesses.
On 25 August 2020, Adv Cerfontein informed Judge Schoeman that she was withdrawing from Pastor Omotoso’s case for ethical reasons which were never explained in detail but she apparently removed herself from the trial because witnesses kept on changing their statements and that was going to put her in jeopardy.
However in one of the many conversations between Ntelwa and Ismet, Ishmet Cerfontein insisted that a failure to amend the charge sheet would negatively affect the complainants' credibility.
In other conversations captured by the emails which is 53 pages long, after Advocate Nceba Ntelwa agreed that other amendments could be made, Cerfontein registered her disagreement stating that she was, “rather concerned as to how they will leave that portion of their evidence ” and that she was not prepared to advise the witnesses to do so.
Pastor Omotoso said, in the notice of motion to declare a mistrial, that prosecutors had a legal obligation to disclose the existence of previous inconsistent statements by the witness and amazingly judge Irma Schoeman had already made negative findings against Ntelwa by calling his conduct in not disclosing the previous statements, “unconscionable” and a violation of the prosecutorial code of conduct. He further stated in the application that state advocate Nceba Ntelwa would stop at nothing to secure a conviction. One of the core reasons of Pastor Omotoso’s conclusion on Ntelwa’s ulterior motive can be deduced from the instance when Ntelwa told the court on March 8 2021 that at no stage had he discussed with Cerfontein the issue of matters now revealed in the emails but the e-mails released to the defence show he was party to the e-mail correspondence and responded directly to Cerfontein’s communication.
Interestingly in new developments, all the 9 state witnesses in the trial contradicted their chief evidence and blamed SABC’s (South African Broadcasting Corporation) Special Assignment (a Hard-hitting investigative TV documentary that is shown on SABC3), SABC Cutting Edge (an SABC News Investigative Current Affairs programme broadcasted on SABC1 and SABC News for long confusing interviews with clear agendas of supporting the state at any cost. It will be recalled also that when the arrest (without a warrant) of Pastor Omotoso was made on 20 April 2017 at the Port Elizabeth Airport, The South African Broadcasting Corporation team was pre arranged to set their cameras and capture the arrest even though Pastor Omotoso volunteered to speak with the Hawks and bought his own return ticket from Durban South Africa.
Whilst relieving himself in the restroom, the Hawks dragged him out with guns shot in the air, handcuffed him and all this was captured and broadcasted on the SABC news outlets. Furthermore the Maxakaza Twins also denied their interviews with South Africa’s Drum Magazine by Pam Magwaza on 30 Jan 2018; however the publication achieved its aim to support the state’s case against Pastor Omotoso during the lengthened trial. Also during his court case early last year, Neliswa and Anele (The Twins) who were members of his church came out in his defence and even claimed they adored him as a mentor.
On Monday 3 May 2021, the state prosecutor Velile Makasana told judge Schoeman that an arrangement had been reached with the defence to postpone the matter to 28 May 2021 and that advocate Gerard Wolmarans SC will head the team dealing with the matter on behalf of the state.
10 months earlier the State Advocate Nceba Ntelwa had been removed from the trial of Tim Omotoso entirely and he claimed to withdraw from the case because he had moved to East London (South Africa). National Prosecuting Authority (NPA) spokesperson Luxolo Tyali had this to add too, “Before the Pastor Omotoso case, Ntelwa was working on the prosecution of organised crime based in East London. There are urgent matters that need his attention in that division, where he normally works,”
At the latest adjourned sitting on 3 May 2021, advocate Gerard Wolmarans SC told judge Irma Schoeman that, “I will also clarify that the sins of my colleague cannot be on me and this court cannot in any circumstance make its ruling with my name on it. My lady I will also provide this court with an affidavit to my submission.” in which judge Schoeman responded by saying, “I hope you know the matter is of urgency and the state prosecutor Nceba Ntelwa stands GUILTY so I cannot delay any further.”
Advocate Peter Daubermann (who is representing Pastor Omotoso) stated this findings also on the same day in court before the case was adjourned till 28 May 2021, “It has been shown that Adv Ntelwa planned to and did in fact suborn Ms Jiyane and Ms Msibi to commit perjury. It has been shown, further, that Adv Ntelwa also planned to suborn other State witnesses to commit perjury.” He further stated that the NPA (National Prosecuting Authority) has allowed a corrupt prosecutor in the form of Advocate Ntelwa to conduct the prosecution.
On behalf of Pastor Omotoso, advocate Peter Daubermann also stated that, “I have been in custody awaiting trial, without bail, since the date of my arrest on 20 April 2017. There is no possibility of a conviction in the circumstances outlined above. Also no purpose will be served by proceeding with the trial. I am informed that there is no specific provision on the Criminal Procedure Act, no. 51 of 1977, which empowers a trial court to declare a mistrial.”
He also said that, “I, however, respectfully refer the Court to Sections 8(1) - (3) of the Constitution which provide as follows: 8 Application. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.”
Daubermann continued that, “The Applicants (including co-accused Zukiswa Sitho and Lusanda Sulani) respectfully submit, in all the circumstances, that they are entitled to and pray for an order in the following terms:
1) Declaring a mistrial.
2) Granting the Applicants further and/or alternative relief.
advocate Gerard Wolmarans responded by addressing judge Schoeman that, “I would like this court to give us some time to prepare so that if the ruling is of Mistral then the trial will be de novo (start afresh). We need to consult and prepare for our defence to this application. My lady, we ask this court to give us a 3 weeks time to prepare our arguments to the defence.”
judge Schoeman went on to grant the notice to allow all parties the proper time to respond, thus the trial was postponed till 28 May 2021 where it is expected that judge Schoeman will give her ruling.
The NPA had this to say with regards to the latest developments and revelations, “We cannot at this stage comment on the merits and nature of the application which is still sub-judice.”
Should judge Schoeman order a mistrial, the matter would have to start de novo (afresh) or the defence could bring an application for a stay of prosecution. If this is granted, Pastor Omotoso could walk away a free man.
Pastor Omotoso has been an awaiting-trial prisoner in St Alban’s since 2017, while Sulani and Sitho are out on bail. They pleaded not guilty to the 63 charges, which included rape, human trafficking, sexual assault and racketeering.
For further correspondence, contact Pastor Derrick: Phone: +27765608004 and email: [email protected] or Shoggy Tosh: [email protected] .