Rape-accused pastor Timothy Omotoso’s lawyer has indicated that he will fight tooth and nail to have the judge recused – which could cause months of delays in a case that has gripped the nation.
On Monday morning, Peter Daubermann asked Port Elizabeth High Court judge Mandela Makaula to recuse himself, suggesting that Makaula was biased in favour of state witness Cheryl Zondi, 22.
Daubermann, who is representing the flamboyant preacher and his co-accused, Lusanda Sulani, 36, and Zukiswa Sitho, 28, said he would approach a higher court shortly after Makaula ruled that he would not recuse himself.
Omotoso and Sulani brought the application to have Makaula recused.
Sitho did not join the application.
Daubermann cited 10 reasons why his clients believed Makaula should step down.
They included that his clients felt Makaula had been biased and had sympathised with University of Johannesburg marketing student Zondi, when he excused her from the witness stand to write her exams scheduled for Monday.
Daubermann said Omotoso and Sulani, who, along with Sitho, are facing 63 main and 34 alternative charges ranging from rape to sexual assault, human trafficking and racketeering, believed Makaula had already made a decision to convict them.
Daubermann said Makaula had commended Zondi for coming to testify and the fact that he had told her that her testimony was about justice meant he had accepted her testimony as true.
“You predisposed an outcome without hearing all the evidence,” Daubermann said.
On Wednesday last week, Makaula wished Zondi well for her exams and told her to “leave everything to us”.
“You must pass your exams. That is your future,” he said.
“You must concentrate on your future and forget about what is happening here. It will take its own course.
“You are not doing it for yourself, coming to this court. It’s not about yourself, it’s about justice.
“So leave everything to us and go and write your exams.”
Daubermann said the issue was not that Makaula had wished Zondi well for her exams, but rather what he had said after that.
“You [Makaula] in fact allowed your humanity to get the better of you when you made those comments to the witness and, unfortunately, I have to criticise you for that.”
He accused Makaula of being “overtly sympathetic” towards Zondi.
Daubermann also claimed that his clients were not receiving a fair trial.
State prosecutor Nceba Ntelwa submitted that Makaula’s words were specifically intended to wish Zondi well with her exams and his good wishes were simply that.
After a short adjournment, Makaula dismissed the application, saying he would give his reasons during judgment.
But Daubermann objected, saying he wanted Makaula to give his reasons there and then – which Makaula denied.
Daubermann then told the court that he would bring an application for leave to appeal against the decision, which will be heard on Thursday.
Port Elizabeth defence attorney Kuban Chetty – who is not involved in the case – said the trial would be significantly lengthened as a result of the application to have the judge recused.
He said should Makaula dismiss the application for leave to appeal, Daubermann could then petition the Supreme Court of Appeal in Bloemfontein, “which is going to take some time”.
This would include having transcripts made of the testimony already given in court, appointing legal representatives in Bloemfontein, and making copies of the transcripts and statement.
Two judges would also have to be appointed to decide on the merits of the case, depending on availability.
If Makaula did grant the application for leave to appeal, the trial would still not continue immediately, Chetty said.
“The appeal would then likely be heard in the Grahamstown High Court before two judges and would have the same process [as a trial], including hearing heads of arguments and so on,” he said.
The defence could possibly then bring a new bail application, but they would have to prove new facts – which could prove difficult.
Chetty said the appeal processes in a case like this could take two to three months, all dependent on the availability of the courts.
Earlier in the day, Daubermann raised concerns about his and his clients’ safety, saying that since the start of the trial Sulani, Sitho and Omotoso’s wife, Taiwo, had felt intimidated and threatened and feared for their lives.
Daubermann told Makaula that he had to raise the matter of safety for his clients, their families and supporters after he, Sulani, Sitho and Taiwo were mobbed last week when they left the court.
He said the police presence at the court was “woeful”.
“I, myself, was chased by an unruly mob when I left the court building last week.”
He also accused the media of falsely reporting on the case and told the court he had been labelled a rapist and vilified for representing Omotoso.
He said no-one, neither Makaula, the judiciary nor the general counsel of the bar, had condemned the attacks on him.
“It is my duty to test the veracity of evidence [and I] cannot allow sensitivities to get in the way,” Daubermann said.
Makaula said issues concerning what happened outside the courtroom should be handled between the defence and the state as he only had control over what happened inside the courtroom.
He said there were various options available to Daubermann and anyone else who felt threatened or intimidated, including reporting the matter to the police to investigate or to approach the civil courts.
Meanwhile, during the short adjournment for the state and defence to thrash out their concerns and to allow for Sulani and Sitho to be brought to court, two men were forcefully removed from the court building by security officials and members of the Metro Police.
It was unclear why they were removed.