Star state witness in the Timothy Omotoso trial Cheryl Zondi will spend the weekend deciding if she wants to continue with the case or walk away following news the trial will now have to start afresh.
This is after the presiding judge in the case, Mandela Makaula, officially recused himself on Friday due to his concerns over perceptions of bias because his wife owns a guesthouse where state witnesses were accommodated.
Speaking to Weekend Post on behalf of Zondi, the deputy chair of the Cheryl Zondi Foundation, Thoko Mkhwanazi-Xaluva, said it was still in talks with her and would hold a press conference on Tuesday once she had made her decision.
“It is a terrible situation for [Zondi] – she has been through unbelievable trauma.
“One can imagine the experience will be intensified [if she testifies again],” Mkhwanazi-Xaluva said.
Zondi was struggling with the idea of having to take the witness stand again, Mkhwanazi-Xaluva said, adding it was up to her to decide if she was going to continue with the case or walk away.
“We are working with her and supporting her.”
Zondi, who turned 23 last week, spent nearly two weeks under harsh cross-examination by Peter Daubermann, lawyer for alleged sex pest pastor Omotoso and his two coaccused.
Shortly after returning to Gauteng to complete her exams following her testimony, Zondi founded the Cheryl Zondi Foundation with the aim of helping sexual assault victims.
On Friday, Makaula presented reasons for his decision to recuse himself, which he emphasised had been made of his own free will.
“I make this decision out of my own free will because I can foresee there could be perceived bias in the future,” Makaula said.
The judge was referring to earlier media reports that he was a shareholder in a company which owned a guesthouse where state witnesses were accommodated during the trial, which started in October 2018.
Makaula said his decision to recuse himself was “in the interest of justice” and he had done so even though he did not own any shares, or have any role in the guesthouse.
Makaula said he had declared the business interests of his wife to his employer, including that she was a sole director of a close corporation which managed a guesthouse.
“I must place it on record that I am not involved [in my wife’s business] either as a director or shareholder,” Makaula said.
He stressed that there was no application brought by the defence for him to recuse himself based on the fact that his wife owned the guesthouse, but that it was, in his view, the appropriate thing to do.
After Makaula excused Zondi from the witness stand in October 2018, Daubermann brought an application for him to recuse himself, claiming he was biased and had already decided on a verdict, among other claims.
Makaula dismissed the application and the subsequent application for leave to appeal his decision.
This led the defence to approach the Supreme Court of Appeal in Bloemfontein for the charges against Omotoso and his co-accused to be quashed.
The application was also dismissed and the matter is now with the Constitutional Court.
National Prosecuting Authority spokesperson Tsepo Ndwalaza confirmed that the trial would start afresh, with a new judge appointed to preside over the matter.
“This means that Cheryl Zondi will have to testify from scratch,” Ndwalaza said.
He was unable to confirm which judge would take over the case.
After Makaula gave his reasons for his recusal, Eastern Cape judge president Selby Mbenenge addressed the court on the way forward.
Three specific issues were dealt with, including when the trial would start again, the
media’s coverage of the matter, and whether or not either the defence or state would bring any applications.
Daubermann indicated to the court he would bring an application regarding the charge sheet after state prosecutor Nceba Ntelwa said he would utilise the same charge sheet as before.
Daubermann did not specify what application he would bring.
He also addressed the court regarding the live broadcasting of the trial, saying that in most criminal cases witnesses were not permitted to attend court proceedings while other witnesses testified.
Daubermann said at the onset of the trial Makaula had approved the live broadcast, to which neither the state nor the defence had objected.
However, Daubermann said he and his clients would request that the case not be broadcast live the next time around.
“I am not trying to muzzle the media at all but [I] will object to the trial being televised live,” Daubermann said.
Mbenenge said if the media intended to broadcast the trial live an application would have to be brought in advance.
After a brief adjournment following a power outage due to load-shedding, Daubermann proposed to the court that all 21 female complainants in the matter be accompanied by a trained psychologist when they testify, at the state’s cost.
“It would only be fair [to the witnesses],” Daubermann said.
Mbenenge said the matter should be discussed between the defence and state, who should come to a resolution before the next court date.
Mbenenge ordered that the trial recommence on July 30 and run for its full duration.
The trial is expected to run for eight to nine weeks, according to Ntelwa.
Mbenenge further declared that if any party wished to bring an application of any sort this should be done before June 28 to ensure the smooth running of the trial.
Speaking after the matter was heard, a spokesperson for the judiciary, Nathi Mncube, said Makaula would not have known that state witnesses would be accommodated at his wife’s guesthouse as the travel and accommodation arrangements were made by a travel agency.
“The National Prosecuting Authority would send a request to [the judiciary] for travel and accommodation of witnesses [through the relevant court manager].
“Arrangements are then made through travel agents,” Mncube said.
“[Makaula] would not have known [about the arrangements].
“Owners don’t even know about the arrangements.”
When asked if Omotoso would bring a new bail application, Daubermann declined to comment.
Omotoso, 60, and his co-accused, Zukiswa Sitho, 28, and Lusanda Sulani, 36, face a total of 97 charges, ranging from rape to human trafficking.
Neither of the three entered pleas at the beginning of the trial in October, prompting Makaula to enter pleas of not guilty on their behalf.