Senior Port Elizabeth advocate Terry Price SC stepped into the spotlight in the Timothy Omotoso rape trial on Thursday, when he argued that the charge sheet against the flamboyant Nigerian pastor was an abomination and the charges against him and his co-accused should be quashed.
Price was arguing two issues in the Port Elizabeth High Court – first, he was appealing against judge Mandela Makaula’s decision not to quash the charges and, second, his refusal to recuse himself.
Before dealing with the two applications brought by Price as senior counsel on behalf of Omotoso’s defence attorney Peter Daubermann, Makaula outlined the reasons why he had dismissed the initial application to recuse himself.
The judge said he had acted impartially while presiding over the matter, there was no actual bias from him, and the claim that he had already accepted state witness Cheryl Zondi’s evidence was “ridiculous in the extreme”.
Makaula said he found the defence had failed dismally to prove grounds for him to recuse himself, including allegations that he had already decided to convict and sentence, and that he was overtly sympathetic and prejudiced, among other claims.
Omotoso, 60, and his co-accused Lusanda Sulani, 36, brought the application on Monday for Makaula to recuse himself after he excused Zondi, 22, from the witness stand and wished her well for her university exams.
Presenting grounds for Makaula to grant leave to appeal against the decision not to recuse himself, Price said that when the judge excused Zondi it was his utterances after wishing her well with her exams which could lead to the perception that he was being biased or siding with her.
“You [Makaula] might say something completely innocently, [but] what is important is what a reasonable person or an accused perceives,” he said.
When Makaula excused Zondi from the stand, he told her not to worry about the case, indicating that justice would take its own course.
Price said it was imperative to be cautious about how things were put, or said, because it could create a perception of bias.
This is probably one of the worst charge sheets I have ever seen.
— Advocate Terry Price SC
He also said the 63 main and 34 alternative charges against Omotoso, Sulani and third accused Zukiswa Sitho, 28, were not clear or concise.
Price said the Criminal Procedure Act and the constitution were clear that an accused had to be furnished with a charge sheet containing times, dates and nature of offence to build a proper defence.
“This is probably one of the worst charge sheets I have ever seen,” he said.
Price said he wanted the matter regarding the quashing of the charges to be heard in the Supreme Court of Appeal in Bloemfontein to get another opinion on the validity of the charge sheet and its contents.
Senior prosecutor advocate Nceba Ntelwa said the defence’s application for Makaula to recuse himself was baseless, showing no grounds of bias.
He said he believed the defence’s submissions on the quashing of the charges were merely a delaying ploy.
Makaula is expected to make a ruling on both applications on Tuesday.
Deputy police minister Bongani Mkongi, who was also in court on Thursday, said he was there to show his support for the alleged victims.
Mkongi said he was satisfied with how the matter was proceeding but warned against being impatient.
Meanwhile, a statement by Omotoso’s Jesus Dominion International church said it would continue to “stand with, and support the man of God”.
“We would like to believe in the justice system and that Rev Omotoso’s basic legal right of the presumption of innocence will be upheld.
“Rev Omotoso deserves a free, fair and impartial trial.”
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