Image: WERNER HILLS
Glaring discrepancies between a state prepared indictment, witness statements, their evidence in court and further particulars furnished to the defence by the state has marred the trial of rape and human trafficking accused Timothy Omotoso, causing more delays.
On Thursday, the Port Elizabeth High Court heard arguments by defence attorney Peter Daubermann in an application to have the evidence of two state witnesses struck off the court records.
According to Daubermann the state was conducting “a trial by ambush” after it emerged that evidence by Lerato Msibi, 30, and Andisiwe Dike, 30, was in stark contrast to the evidence given to the defence in order to prepare for the trial.
Daubermann accused the state of being calculating and prejudiced toward Omotoso, who along with his co-accused Lusanda Sulani and Zukiswa Sitho face 63 main and 34 alternative charges ranging from rape to sexual assault, human trafficking and racketeering.
All three pleaded not guilty at the start of the trial last week.
Daubermann said the initial indictment was irrelevant but what was relevant was the reply to the request for further particulars.
“The state is not entitled to lead evidence which is not contained in the further particulars.
“If [the evidence] is not contained in the further particulars it is irrelevant,” Daubermann said.
According to Daubermann, Dike and Msibi had testified far beyond what was contained in the further particulars as well as the statements they gave to police.
Listing six specific charges relevant to Msibi and Dike, Daubermann said even their testimony was not in accordance with what was contained in the indictment before court.
This included incorrect dates for alleged rapes, sexual assaults and the amount of times these offences occurred as well as incidences of human trafficking and the places these offences allegedly occurred.
State prosecutor Nceba Ntelwa admitted there were glaring contradictions contained in the various documents compared to witness testimony and told judge Irma Schoeman that he wanted to make the necessary amendments to the indictment.
Schoeman said an application to amend the indictment should have been brought when the discrepancies first came to light and if the state wished to bring the application it would need to be done in a proper fashion.
The case continues.