Damning allegations made against NPA and prosecutor after televangelist Timothy Omotoso’s acquittal

The Eastern Cape Division of the High Court in Gqeberha has set out a list of disconcerting actions by the prosecutor in the Timothy Omotoso case that all contributed to a decision by Judge Irma Schoeman to find the Nigerian pastor and his co-accused, Lusanda Sulani and Zukiswa Sitho, not guilty.

While fingers were pointing at the National Prosecuting Authority (NPA) for this dismal failure, the court pointed out that a decision was taken during the trial to remove Advocate Nceba Ntelwa, but one of the complainants - who was found to have given evidence that was not credible - went all the way to the National Director of Public Prosecutions Advocate Shamila Batohi to advocate that he must be kept on the case.

Ntelwa faces another application today as the Magistrates’ Court in Dimbaza is expected to give a ruling on an application by a group of accused that face charges of defrauding the University of Fort Hare. This is also based on a series of alleged untruths that Ntelwa conveyed to the court.

Omotoso has been in jail awaiting trial since 2017 after his dramatic arrest at the Chief Dawid Stuurman International Airport in Gqeberha in that year. A drawn-out court case followed that was marred by allegations of prosecutorial misconduct.

Originally, Omotoso faced more than 30 charges of rape, racketeering and human trafficking with his co-accused relating to activities at the Jesus Dominion International Church.

While Judge Irma Schoeman said that it was not that she did not believe most of the complainants - who told heartbreaking stories of drug abuse and alcoholism, and how they saw Omotoso as a mentor and a father figure - she said the State had failed to prove its case beyond a reasonable doubt. 

The State, for instance, she pointed out, failed to provide evidence of messages sent to and from Omotoso to the complainants in the case. No evidence of first reports of sexual violation, as is customary in sexual offences cases, was led. 

Citing evidence from one complainant that Omotoso told her that “A man of God cannot go to jail”, Judge Schoeman said the evidence of the complainants was fairly similar and included elements of how impressed they were with a video that Omotoso allegedly healed a boy born without an esophagus, that they had to massage his feet and that he prayed for forgiveness after the acts that were claimed to be rape. However, she pointed out the prosecutorial misconduct had diluted the value of these.

Schoeman explained the many problems with the prosecution as follows in her ruling:

“It became apparent that the evidence led was not in line with the indictment. It looked like he [Ntelwa] was not familiar with the evidence of the witnesses. The indictment was then amended.”

She said it later emerged that an indictment was served on the accused that was different to the one given to the court.

There was an attempt to remove Ntelwa, but he was later brought back.

A prosecutor that helped on the case, Ismat Cerfontein, found during consultation that the witnesses’ recounting of events was different to that which was in the police docket. This was reported to her and Ntelwa’s seniors, and also shared with Ntelwa’s lawyer, Peter Daubermann. Schoeman pointed out that this was the correct course that was followed by Cerfontein. 

“I ordered that he be replaced,” she said. 

But then he was brought back by the Prosecuting Authority.

In the special entry made for the case, it is recorded that the Ntelwa suggested that if the evidence of witnesses were different to what they told the police, they should be “persuaded” to stick to their original statements to avoid further postponements. 

When Cerfontein brought this to the attention of senior prosecutors, Ntelwa wasn’t censored. Instead, a different indictment was drawn up and Cerfontein was not allowed to consult with witnesses.

Other issues that cropped up during the trial was that Ntelwa went into a witness room to speak to a witness while the witness was being cross-examined, even though this is not allowed. 

“I asked him if he knew that the one complainant made a contradictory statement during consultation. He denied that he knew that fact,” Schoeman said. 

She then pointed out that previously redacted emails that were supplied to the defence, in its unredacted form, showed that he did and that there were more previously contradictory statements, as pointed out by Cerfontein - not just from one witness.

“The emails further showed Ntelwa’s assurance that he did not know about the contradictory statements, were false,” she said.

She further pointed out that Ntelwa said under oath in an affidavit that he did not know that vaginal penetration with a finger constituted rape.

“It is inconceivable that a prosecutor with 14 years’ experience does not know what the definition of rape is,” she said, pointing out that he is either incompetent or dishonest.

It had further emerged during the trial that Ntelwa had established a WhatsApp group connecting all the complainants - even though witnesses are not supposed to talk to each other.

“He was confronted about this by his seniors,” Schoeman said. “But his excuse was that it was for logistical reasons.” She said instead of an investigation being done the WhatsApp messages were just deleted.

She said Ntelwa had a big influence on the testimony of the complainants. 

Daubermann is correct that it cannot be established what the influence of Ntelwa is, but this only emerged after some of the witnesses testified, leaving Omotoso’s council, Daubermann, unable to cross-examine properly.

She further pointed out that Ntelwa’s cross-examination of the accused was “of such poor quality” that it did not place the accused’s evidence in dispute “at all”.

“If he had been removed when the NPA intended to remove him, the outcome would have been different,” Schoeman said. She said it was “highly undesirable” that a complainant was allowed to dictate who could prosecute in a trial.

Schoeman said, as a result, while she didn’t believe the evidence by Omotoso and his co-accused, they did not have to convince the court of their innocence; it was for the state to prove its case, which it has not done.

Following her order that they be found not guilty, Omotoso fell to his knees and loudly gave thanks to “the Almighty and merciful Lord” for the acquittal.

He was to be deported on Wednesday night, but by Thursday Home Affairs have not yet been able to confirm if this has indeed happened.

Ntelwa, meanwhile, is due in court on Friday for the ruling in the Fort Hare case.

In this case, the accused asked that the case against them be struck off the roll based on several false representations he had made to the magistrate in the court of this trial that started last year. 

On 12 September 2024, he told the court that the investigation was completed, adding that the docket will be handed over on 31 October 2024. He also sought a six-months’ postponement to obtain a racketeering certificate that was needed to continue with some of the charges. On 31 March, he arrived at court without a racketeering certificate and requested another three weeks. He said he wasn’t aware that the accused’s legal teams had given notice in May 2024 that they will be bringing an unreasonable delay application to have the matter struck off the roll. But later said he was wrong and there is one before the court. It then turned out that the police investigation was not complete on 12 September 2024, as Ntelwa told the court, and that several affidavits were still obtained after this, including the affidavit of the investigating officer.

When asked why he did not tell the legal teams before 31 March that he did not have a racketeering certificate, he said he did not have their phone numbers. 

Luxolo Tyali from the NPA said they have noted the judgment in the Omotoso case. 

He said they will study the judgment to explore further legal avenues.

“In as much as the NPA does not seek to secure conviction at all costs, it remains committed to ensuring justice is served for the victims of crime and will go to all lengths to give a voice to the victims by exploring all the possible avenues,” he added.

Batohi has, in the meanwhile, called for a report on the prosecutorial conduct in the Omotoso matter. DM