As irregularities practice uphold injustice in Port Elizabeth High Court in South Africa. There have been a lot of irregularities in this case. Why are witnesses being induced on what to say if it is the truth? How can the trial continue with inconsistencies in the witness statements? Is all this in the interest of justice or just a personal attack? This whole trial has been tainted with deceit and irregularities!
The Omotoso trial has been marred by numerous postponements and delays which has been very costly. The trial has been on for 4 years 9 months since the arrest of the accused on 20 April 2017, and he has since been in detention and denied bail three times.
Omotoso and his co-accused, Lusanda Sulani and Zukiswa Sitho, face 97 charges, among them rape, human trafficking and racketeering.
During cross examination of one of the state witnesses it emerged that there were gross discrepancies between her evidence in chief, psychological report and police report.
The defence lawyer requested that Co prosecutor Ms. Cerfontein (an advocate at the office of the Director of Public Prosecutions who withdrew from the case “due to ethical reasons”) come to court to testify but this request was declined by the judge. However, she allowed the email of the correspondence between Ms Cerfontein and state prosecutor Ntelwa which clearly showed that Mr Ntelwa actually suggested that state witnesses commit perjury. It was on the basis of these emails and former misconduct of Mr Ntelwa that an application for a mistrial was made by the defence attorney, Mr. Daubermann.
It is worth noting that the first judge in this case, Judge Makaula, was forced to recuse himself after it was revealed that state witnesses were lodged at his guesthouse while presiding over the case.
In the Port Elizabeth High Court on 6 December 2021, attempts made by Omotoso’s legal team to seek a mistrial, and for Judge Irma Schoeman to recuse herself, were both dismissed. Judge Irma Schoeman agreed that prosecutor Nceba Ntelwa did commit irregularities in the trial, but however said not to the extent that it resulted in a failure of justice!!! He did commit an irregularity, but not, Schoeman said, to the extent that it would result in a “failure of justice”. This is because Daubermann still has a chance to cross-examine and recall witnesses.
The judge has also found that, Adv Ntelwa “may have” in fact suborned State witnesses to commit perjury “He might have encouraged witnesses not to deviate from their police
statements, even if the statements might not have been taken down with the
necessary care and therefore not reflect the true state of affairs.”
Defence lawyer, Peter Daubermann has said that these findings alone justify an order declaring a mistrial!
This trial is nothing but unfair, how the judge acknowledged that the prosecutor has committed irregularities but still says the trial is not a mistrial is beyond me. The judge is saying the prosecutor has failed in his duties but yet still says that it’s a fair trial. The defence made a submission that Ntelwa is misleading the court last year which the judge ruled against but now she is agreeing the man is corrupt!!!
The state prosecutor( Ntelwa) in this trial is now been removed from the case for making the state witness to commit perjury in court, in her judgment, Schoeman stated”…  With regard to the conduct of Mr Ntelwa I am satisfied that it would not be appropriate that he should continue with the prosecution of the case. I would find it difficult to rely on his assurances in this matter. He might have encouraged witnesses not to deviate from their police statements, even if the statements might not have been taken down with the necessary care and therefore not reflect the true state of affairs. Although there has been no application by the defence for Mr Ntelwa to be replaced, in spite of the fact that it became obvious prior to the judgment on section 186 of the Criminal Procedure Act that he did not properly fulfil his duties, I am of the view that it would not be in the interests of justice and the accused’s right to a fair trial that he remains a prosecutor in this case.”
In her judgment, Schoeman concludes that “… the irregularity did not lead to an injustice that must be decided at this stage. The door remains open, if all the evidence is considered, to find that the accused did not have a fair trial, but it is not an issue that should be decided at this stage.”
In summary, The judge has found, in effect, that Adv Ntelwa is a corrupt prosecutor. For a prosecutor to suggest that witnesses be suborned to commit perjury is prosecutorial misconduct of the most egregious kind.
Defence lawyer, Peter Daubermann is of the opinion that the Judge should have gone
further and found that the State witnesses were in fact suborned to commit perjury because they in fact changed their versions to Adv Cerfontein when they testified by reverting back to what they said in their statements to the police (which is exactly what Adv Ntelwa proposed should happen in his email to Adv Cerfontein).
The judge has placed an onus on the accused to prove that the witnesses were in fact suborned to commit perjury by suggesting that the defence will be able to establish through cross-examination whether the State witnesses were in fact suborned to commit perjury. This finding is, in Daubermann”s view, wrong.
There can never be any onus on an accused in a criminal case. Once it is established that there is a reasonable possibility that State
witnesses were in fact suborned to commit perjury (which finding the judge has already made), the court must find that the accused cannot receive a fair trial.
The mere removal of the corrupt prosecutor cannot possibly, in the circumstances, render the trial fair.
The suggestion by the judge that the accused can, in the circumstances, still receive a fair trial is, in Peter Daubermann’s view, preposterous.
In her judgment the judge states that the complainants also have the right to a fair trial:
“ As previously stated it is important that it is not only the accuse
that is entitled to a fair trial but also the victims of crime and society as a
whole. In this criminal case most of the complainants have not testified
and it would impact on their rights if they did not have their day in court
and would be detrimental to the administration of justice.”
The consequences of an order declaring a mistrial are completely irrelevant to the question whether the accused have received a fair trial. Furthermore, the complainants are not on trial as accused persons and do not have any constitutional right to a fair trial. The consequences of an order declaring a mistrial in this case, as regrettable as they may be, must be laid squarely at the door of the NPA and its prosecutors.
The case has been adjourned till Tuesday 25th January 2022.