The state has been forced to return to the drawing board in its quest to have pastor Timothy Omotoso held accountable for the charges on which he was acquitted.
On Tuesday, judge Irma Schoeman dismissed the National Prosecuting Authority’s request that she provide a clarification of her judgment.
“The state is not entitled to request clarification of facts prior to the lodging of an application for leave to appeal on a question of law,” Schoeman said.
However, the NPA has indicated that it will now appeal to the Supreme Court of Appeal (SCA).
In April, amid a public outcry, Omotoso and his two co-accused church members were found not guilty in the Gqeberha high court on a string of charges including rape, human trafficking and racketeering.
At the time, Schoeman slammed the state for its mismanagement of the case, ultimately setting Omotoso, Lusanda Sulani and Zukiswa Sitho free.
The Nigerian televangelist has since left SA.
“I acquitted the three accused of all the remaining charges at the conclusion of the trial.
“Following the acquittal, the state did not file a notice of appeal in terms of the provisions of the Criminal Procedure Act,” Schoeman’s latest judgment reads.
She said instead, the state had filed a notice for “request for provision and clarification of factual findings”.
She said this was a request for her to provide and clarify all the factual findings made in relation to the evidence led.
“Furthermore, during argument by the state, it became obvious that what is required by the request for clarification is that I have to supplement my factual findings.
“The argument was that I must have drawn conclusions during the evidence that are not contained in the judgment and the state needs facts that I have not mentioned in the judgment, to be able to formulate the legal point it wishes to take on appeal.
“This clearly would be incorrect to alter or supplement my judgment.”
Schoeman said during the trial and its conclusion, the state had not applied for leave to appeal against her judgment on a point of law.
“Nor have they at this stage filed a notice of application for leave to appeal ...”
NPA national spokesperson advocate Mthunzi Mhaga said after the judgment that the prosecuting authority had not expected the court not to rule in its favour.
“With respect, there was a misinterpretation of the case law that we relied on.
“In terms of that case law, in order for us to properly draft the questions of law for the appeal, we needed to identify factual findings that informed a decision to acquit the accused.
“[Judge Schoeman] must then say, with respect, that we should appeal first and then seek clarification later.
“In the judgment that I have just read, she says that because she has already pronounced on the matter, she can’t correct, supplement or alter the judgment — that was never our request.
“Our request was ‘clarify factual findings’ so that we can proceed to finalise the drafting of the questions of law.
“So, we will now proceed before the end of this week to request her to reserve those questions of law for consideration by the SCA.
“And, if necessary, we will also prepare a condonation application because we believe that we have grounds to appeal.”
Generally, one must apply for leave to appeal against a court’s judgment within 15 court days.
A condonation application is for a court to consider if the case should proceed if there is good cause for the late submission.
The Herald
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