A defence bid to unseat the judge in the rape trial of alleged sex predator pastor Timothy Omotoso was rejected on Monday and the matter now appears to be headed for the Supreme Court of Appeal.
Defence lawyer Peter Daubermann asked judge Mandela Makaula to recuse himself, citing a long list of complaints, among them claims of favouritism towards a young woman witness and prejudice.
The application was dismissed and a further application for leave to appeal against the decision was submitted.
In the gallery at Monday’s court hearing were minister in the presidency Bathabile Dlamini, minister of communication Nomvula Mokonyane, Eastern Cape premier Phumulo Masualle and metro mayor Mongameli Bobani.
Daubermann is representing Omotoso, 60, and co-accused Lusanda Sulani, 36, and Zukiswa Sitho, 28, who face 63 main and 34 alternative charges including rape, human trafficking and racketeering.
The lawyer submitted a notice of motion for Port Elizabeth High Court judge Mandela Makaula to recuse himself on Monday, claiming the judge was not being impartial.
This, he claimed, stemmed from how Makaula conducted himself during the cross-examination of state witness Cheryl Zondi, 22, who was grilled by Daubermann for three days.
Reading submissions by Omotoso and Sulani, Daubermann cited 10 reasons his clients believed Makaula should step down. He claimed Makaula had been biased and had sympathised with Zondi when the judge excused her from the stand to write exams.
Daubermann said he believed Makaula had already made his decision to convict them. He said Makaula commended Zondi for coming to testify and told her to leave the merits of the trial in the hands of the court, which Daubermann claimed meant the judge had already accepted her testimony as the truth.
“You predisposed an outcome without hearing all the evidence,” Daubermann said.
On Wednesday Makaula wished Zondi well for her upcoming exams and told her to “leave everything to us and go and write your exams”.
“On behalf of the court, we wish you luck. You must pass your exams. That is your future. You must concentrate on your future, and forget about what is happening here. It will take its own course,” he said.
“You are not doing it for yourself ... it’s about justice. So leave everything to us and go and write your exams.”
Daubermann said: “You [Makaula] in fact allowed your humanity to get the better of yourself when you made those comments and unfortunately I have to criticise you for that.” He accused Makaula of being “overtly sympathetic” to Zondi and aligning himself to her cause. As a result, his clients were not receiving a fair trial.
State prosecutor senior advocate Nceba Ntelwa rejected the submissions and submitted that Makaula’s words were specifically intended to wish Zondi well with her exams and his utterances were merely that.
After a short adjournment Makaula dismissed the application saying he would give his reasons during judgement but Daubermann objected, wanting reasons then and there, which Makaula refused.
Daubermann then informed the court that he would bring an application for leave to appeal against Makaula’s decision not to recuse himself. This will be heard on Thursday after Daubermann consults with his team.
Earlier in the day he raised concerns from earlier in the trial including that Sulani, Sitho and Omotoso’s wife, Taiwo, felt intimidated and threatened and feared for the lives.
None of the three women were in court.
There was a glaring absence of Omotoso supporters and members of the pastor’s church in the gallery on Monday.
Daubermann told Makaula he’d had to raise the matter of safety for his clients, their families and supporters after he and the three women were mobbed by unruly crowds last week when leaving the court.
He said police presence at the court was “woeful”.
He also accused the media of falsely reporting on the case, complaining he had been labelled a rapist and vilified for representing Omotoso.
Neither the judiciary nor the general counsel of the bar had condemned the attack on him after public outrage at the cross-examination of Zondi, he added. “It is my duty to test the veracity of evidence [and I] can not allow sensitivities to get in the way.”
Makaula said what happened outside the courtroom should be handled between the defence and state as he only had control over what happened inside the courtroom.
He said there were various options available including reporting the matter to police to investigate or approaching the civil courts...