National Prosecuting Authority takes first step in bid to appeal ruling in ‘bungled’ pastor Omotoso case

The National Prosecuting Authority (NPA) has indicated that it will start the process to appeal the acquittal of controversial Nigerian pastor Timothy Omotoso and his co-accused, Lusanda Sulani and Zukiswa Sitho. Papers have been filed in the Gqeberha High Court.

“The NPA’s director of public prosecutions in the Eastern Cape, Mr Barry Madolo, has decided to appeal the judgment by Judge Irma Schoeman relating to the case against Timothy Omotoso,” NPA spokesperson Mthunzi Mhaga said. 

The appeal will also be against the acquittal of Sulani and Zukiswa who the State says assisted Omotoso in the alleged crimes.

Schoeman found that the prosecutors failed to lead corroborating evidence in the case and also failed to cross-examine properly.

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

“This decision follows a thorough consideration of the matter by an NPA internal team of  experienced prosecutors, as well as a legal opinion sourced from senior counsel. The decision could not be rushed due to the complexity of the matter and the voluminous transcript that needed to be interrogated,” Mhaga said.

Despite the NPA initially saying Omotoso would be deported immediately after his acquittal, he was not. He moved to East London where he then held a very public “New Dawn” crusade. Despite Buffalo City mayor Princess Faku barring him from using municipal property for his church meetings, he continued at a property on Commercial Road in East London where he was arrested on Saturday after being declared a prohibited person.

Read more: Controversial pastor’s ‘New Dawn’ march stumbles as Buffalo City says he is not welcome

Omotoso was declared a prohibited person by the home affairs minister last week in another setback in his long-standing battle to stay in South Africa. This status, however, stems not from the criminal proceedings but from allegations that he used fraudulent documentation to enter and work in South Africa 25 years ago.

Read more: Controversial pastor Timothy Omotoso arrested on immigration charges in East London

In court papers Omotoso said he was convinced the NPA was working with the Department of Home Affairs.

 “The NPA takes the view that there are reasonable prospects of a successful appeal despite the complexities of the legal process,” Mhaga said.

While a convicted person may appeal a conviction on both facts and the law, the State can only appeal an acquittal judgment on a question of law, according to the Criminal Procedure Act.

Mhaga said the first step when applying for leave to appeal was to request that Schoeman clarify her factual findings. Paperwork in this regard was filed in the Gqeberha High Court on Monday.

“Once a clarification of the factual findings is received from the judge, the NPA’s legal team will finalise the papers on the reservation of questions of law and file this application with the Registrar of the High Court,” Mhaga added.

The law doesn’t provide a timeframe for the State to appeal an acquittal but Mhaga said that once they had received the clarification they are seeking they would file the application for leave to appeal “within a reasonable period”.

In 2024 the NPA successfully appealed a rape acquittal, against a ruling on the meaning of consent. In that case the accused was convicted in the Regional Court on a charge of rape but successfully appealed the matter to the Eastern Cape Division of the High Court, where his conviction and sentence of seven years were set aside. The Supreme Court of Appeal, however, ruled in favour of the National Prosecuting Authority on the legal meaning of consent and remitted the case to the high court for an appeal against sentence. 

Mhaga also confirmed that an internal investigation is under way to determine whether disciplinary action should be taken against any of the prosecutors involved in the Omotoso case. A report is expected next month.

“While in our appeal we maintain that the judge erred in certain of her findings, the Omotoso judgment has had a tragic impact on the victims involved and seriously dented confidence in the NPA and the justice system to address sexual and gender-based violence matters,” he said.

The setback suffered in the Omotoso case should not “discourage victims from coming forward and accessing the services provided”.

“The Thuthuzela Care Centres (TCCs) are world-class, multi-agency facilities that provide the most comprehensive support services to victims on their journey to becoming survivors. Thousands of victims are receiving such support from our country’s 66 TCCs, which we plan to expand significantly over the coming years. The NPA achieves a 77% conviction rate for the thousands of cases flowing through the TCCs that are successfully prosecuted,” he added.

In 2024, however, the South African Police, responding to a Promotion of Access to Information Act request by the DA, revealed that between 2018 and 2023, 61,740 rape cases and 5,523 sexual assault case dockets were closed without arrests.

Additionally, the NPA closed 18,931 rape cases and 2,285 sexual assault cases without prosecution, and does not track how many cases it declines to prosecute.

“The NPA has some of the most experienced prosecutors (in sex crimes and gender-based violence) in the world, who know how to win cases, while also protecting the interests of victims. This was demonstrated most recently by the team of Adv Zelda Swanepoel and Adv Aradhana Heeramun, who together with the SAPS investigation team successfully prosecuted the case of trafficking in persons for purposes of exploitation and kidnapping relating to the little girl Joshlin Smith in the Western Cape,” Mhaga said.

“Another case involved the successful prosecution of a former police officer, Thembalethu Gqeku, who has been sentenced to 20 years’ imprisonment for raping a 17-year-old victim of domestic violence inside the Komga police station in the Eastern Cape.”

He said their successful prosecution of trafficking matters solidified the accelerated efforts of the NPA, and the SAPS, which resulted in South Africa being removed from the Trafficking Tier Watchlist in 2024. 

Omotoso is back due in the East London Magistrates’ Court today (13 May) for a continuation of his deportation inquiry. His legal team has also filed an application to have the decision to declare him a prohibited person in South Africa set aside. DM