By Lynn Williams.
The State that lost the high-profile rape and human trafficking case against Nigerian Pastor Timothy Omotoso and his co-accused, started the first leg of its appeal against his acquittal in the Gqeberha High Court on Monday.
Omotoso, 67, Zukiswa Sitho, 42, and Lusanda Sulani, 35, were acquitted on more than 30 charges which include rape, human trafficking, sexual assault, and racketeering.
In April, Omotoso walked out of the courtroom a free man, after spending seven years in custody pending the finalisation of his trial.
Judge Irma Schoeman’s finding of not guilty then prompted the State to launch an appeal against the judgment.
On Monday, citing various case law, the State requested that Schoeman provide clarification of the factual findings based on the evidence presented to the court during the trial.
Advocate Apla Bodlani SC argued that based on the case law he presented before the court for reservation of questions of law, it was firmly established in criminal law.
He said factual findings, when not clear from the judgment, need to be established before the State may request the trial court to frame questions of law.
“When the State intends to apply for the reservation of questions of law, it must pertinently illustrate the facts upon which the points of law is said to hinge.
“It is not for the State merely to summarise the evidence of the witnesses without analysing the facts.
“If it fails to set out the trial court’s factual findings on which the reserved question ought to be considered, then the application for reservation of questions of law is bad,” he stated in his heads of argument.
Peter Daubermann, who secured the trio’s acquittal argued that the State has not followed any recognised procedural mechanism to challenge the acquittals.
He submitted that their request should be dismissed in limine for want of jurisdiction and for failing to comply with the requirements of the Criminal Procedure Act (CPA) and the principles of finality and fairness.
According to Daubermann, the only statutory mechanism available to the State to revisit a verdict is section 319 of the CPA, which allows for the reservation of a question of law with leave of the trial court.
He added that this procedure has not been invoked.
“The State’s ‘Request for Provision and Clarification of Factual Findings’ dated 12 May 2025 does not fall within any recognised exception.
“It is not directed at correcting a clerical error or resolving a genuine ambiguity. Rather, it seeks to invite the trial court to supplement or elaborate upon its factual findings post hoc, notwithstanding the delivery of a comprehensive and final judgment.
“The State’s dissatisfaction with the outcome does not confer jurisdiction where none exists. Its recourse lies solely in the appellate process, ot in an informal or collateral request for clarification, Daubermann said in the respondent’s heads of argument.
He said should Schoeman entertain the State’s request in these circumstances, it would amount to the impermissible reopening of final factual findings, undermining the integrity and finality of the court’s judgment.
“This would set a dangerous precedent and circumvent established appellate procedures,” he added.
Schoeman will deliver her verdict next Tuesday.