By Lehlohonolo Lehana.
Judgment has been reserved in State’s bid to appeal against Nigerian televangelist Timothy Omotoso acquittal in the Gqeberha High Court.
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 National Prosecuting Authority (NPA) must first get the high court’s permission.
During the proceedings, the State presented its heads of argument in the High Court in Gqeberha 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 wants six questions of law to be reserved for consideration by the Supreme Court of Appeal (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.
“Each purported question is unsupported by the record and rests on a misstatement of the evidence, a disagreement with the trial court’s factual and credibility findings, or a speculative assertion unrelated to any ruling actually made.
“The application is therefore misconceived and incompetent in law, amounting to an impermissible attempt to re-litigate factual determinations under the guise of a legal appeal,” he said.
Daubermann said the trial court, having heard extensive evidence from numerous complainants, ruled that the State failed to prove the guilt of the accused beyond a reasonable doubt.
He said the judgment by Judge Schoeman was “detailed and reasoned, addressing inter alia the credibility of the witnesses, the effect of prosecutorial misconduct, and the failure of the prosecution to challenge the defence evidence by proper cross-examination.”
Daubermann said that Schoeman’s judgment “discloses no misdirection on law, and even if an error were hypothetically assumed, there is no reasonable prospect that a conviction could have followed.”
“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.
If the court grants the state’s request, the matter would proceed to the Supreme Court of Appeal, where a panel of judges would consider whether the trial court made errors of law.