By Kholofelo Maruma
Introduction
Like all things in our earthly life, to wit, the best of all times and the worst of all times, litigation must at some point, come to an end. South African courts adjudicate both civil and criminal claims, thus ensuring the smooth operation of the administration of justice for all South Africans and non-South Africans. They are the ultimate defenders of the Constitution and any Acts made by the Parliament of South Africa. Thus the role of the judiciary must neither be misconstrued nor diminished. The judiciary stands as the guardian of legal certainty and the sanctity of final judgments. These principles are the very lifeblood of the rule of law, and without them justice gasps for breath, falters, and fades into oblivion. Like the unwavering flame that illuminates the corridors of order, the courts uphold the integrity of governance, ensuring that law does not wane into chaos but instead remains a steadfast pillar upon which society rests. To neglect this solemn duty is to invite the suffocation of justice itself. Blind justice falters, its balance unsteady, when the state neglects its solemn decree. In this post, I am by no means trying to be unnecessarily poetic, I am merely attempting to set the scene for the reader to fully grasp the nature and effect of the recent case discussed below, on the South African criminal justice sector, especially in light of public sentiment around this matter.
The case of The State v Timothy Omotoso, Lusanda Sulani, and Zukiswa Sitho stands as a landmark trial in South African criminal justice, intersecting issues of justice, prosecutorial integrity, and the complexities of adjudicating sexual offenses. This article critically examines the legal proceedings surrounding the case, highlighting procedural challenges, judicial determinations, and broader implications for the administration of justice.
Case Overview
Timothy Omotoso, a Nigerian televangelist, was arrested in 2017, along with his co-accused, Lusanda Sulani and Zukiswa Sitho, on 63 charges. These included contraventions of the Prevention of Organised Crime Act (POCA) 121 of 1998, specifically Sections 2(1)(f) and 2(1)(e), as well as sexual assault under Section 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Additionally, charges of trafficking in persons under Section 4(1) of the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 were levied against the accused, reflecting the gravity of the allegations.
Trial Proceedings and Their Attendant Challenges
The trial was highly publicized, drawing national attention due to its social and legal significance. The prosecution encountered numerous procedural hurdles, including interlocutory applications and constitutional challenges. A pivotal moment occurred in July 2019, when the lead prosecutor, Adv Ntelwa, was abruptly replaced, prompting delays in the proceedings. However, in May 2020, he was inexplicably reinstated, raising concerns over the legitimacy of prosecutorial decision-making. During this period, the accused remained incarcerated as bail applications were repeatedly denied.
Further allegations emerged regarding prosecutorial [mis]conduct, including claims that Adv Ntelwa instructed three witnesses to commit perjury a matter that was never disclosed to the court. Consequently, two charges were dismissed due to unreliable witness testimony. As the trial progressed, complainants recounted experiences within Omotoso’s religious institution, describing manipulation and coercion. However, the defense vigorously contested the credibility of witnesses and criticized the prosecution’s case management, arguing that the state failed to substantiate the allegations with corroborating evidence.
Application Under Section 174 of the Criminal Procedure Act
A significant legal manoeuvre by the defense was the application under Section 174 of the Criminal Procedure Act, which allows for the discharge of an accused person if the state fails to present prima facie evidence warranting a conviction. The defence argued that ‘insufficient evidence had been led for multiple charges’. It was further contended that ‘prosecutorial misconduct had compromised the integrity of the trial and witness withdrawals and relocations had created evidentiary gaps’. What compounded the matter were the prolonged trial delays, including Constitutional Court interventions, which, the defence averred had prejudiced the accused.
Judicial Ruling on Section 174
Judge Irma Schoeman dismissed the application, reasoning that, although certain charges lacked evidentiary weight, there remained serious charges that warranted further adjudication. Additionally, while allegations of prosecutorial misconduct were concerning, they did not wholly invalidate the proceedings. Thus, despite the dismissal of 31 charges, the accused were ordered to stand trial for the remaining 32 charges.
State’s Application for Centralization of Charges
The state sought to centralize proceedings within the Port Elizabeth High Court, justifying consolidation under the Criminal Procedure Act. However, the defence opposed this, contending that, ‘the court lacked jurisdiction over offenses committed outside its territorial authority, and that the directive from the National Director of Public Prosecutions was procedurally defective’. In adjudicating these claims, the Supreme Court of Appeal (SCA) ruled that the state’s appeal lacked reasonable prospects of success. Judge Schoeman subsequently dismissed the application, undermining the prosecution’s ability to present a unified case across multiple jurisdictions.
Final Judgment
On 2 April 2025, the Gqeberha High Court acquitted all accused persons on all charges. Judge Schoeman based her ruling on key legal considerations, viz (i) that the state failed to prove guilt beyond reasonable doubt, as the case lacked substantive evidence, (ii) the credibility of complainants’ testimonies, while acknowledged, was not sufficiently corroborated, (iii) prosecutorial irregularities affected trial fairness, (iv) the accused were not adequately cross-examined, leading to legal uncertainties, and (v) jurisdictional flaws in the state’s centralization attempt weakened the prosecution’s case. Notably, witness reluctance and withdrawals led to the reduction of charges from 63 to 32.
Legal Implications and Future Considerations
This case highlights critical challenges in prosecuting sexual offenses and organized crime within religious institutions. The NPA has since indicated that it will study the judgment and consider possible legal avenues to secure justice for the complainants. From a broad perspective, this trial underscores the importance of prosecutorial ethics, the evidentiary burden in criminal trials, and judicial discretion in dismissing flawed applications. The ruling raises fundamental questions about the efficacy of South Africa’s legal system in handling high-profile sexual abuse cases, particularly when compounded by procedural flaws and witness credibility disputes. I can only conclude that the human factor was its undoing. The state brought a solid case before the honourable court, it had all elements to succeed.