By Lehlohonolo Lehana.
Gqeberha High Court has denied the National Prosecuting Authority (NPA) leave to appeal the ruling acquitting Timothy Omotoso and his co-accused on rape charges.
The State approached the court seeking leave to appeal the acquittal to the Supreme Court of Appeal (SCA) in Bloemfontein.
Before the case can go to the SCA, the NPA must first get the high court’s permission.
The State presented its heads of argument before Judge Irma Schoeman, who acquitted Omotoso and two co-accused, Lusanda Sulani and Zukiswa Sitho.
Omotoso and co-accused faced 97 charges, ranging from sexual assault to rape and human trafficking.
According to the application, the State wanted six questions of law to be reserved for consideration by the SCA, and said the application was made in terms of section 319 of the Criminal Procedure Act 51 of 1977.
“All that this Court has to decide is whether the questions sought to be reserved by the State are questions of law.
“Whether any of the questions sought to be reserved possess reasonable prospects of success does not constitute part of the enquiry before this Court, “the state said.
The defence lawyer Peter Daubermann argued that the respondents oppose the application on the basis that none of the six issues advanced by the State constitutes a genuine question of law as contemplated by section 319 of the Criminal Procedure Act 51 of 1977.
“The acquittals rested on the State’s failure to discharge the onus of proof beyond reasonable doubt, and on the finding that the accuseds’ versions were not false — conclusions that are factual, not legal, and dispositive of the outcome,” he argued.
In her seven-page judgment on Friday, Judge Schoeman said that “none of the six questions of law” that the state raised in its “unprecedented” application for leave to appeal, raised questions of law.
Judge Schoeman said instead, it displays dissatisfaction with the factual findings in this matter, in dismissing the state’s application.
In a scathing judgment then, Schoeman said the state failed in its duties to prove that the accused was guilty beyond any reasonable doubt.
The NPA now faces a narrow path forward. Under Section 319, only questions of law certified by the trial court can be escalated to the SCA, leaving the State with few remaining avenues to challenge the acquittal.