NPA insists it will pursue appeal against Omotoso acquittal despite legal missteps

Daily Maverick

a day ago

Despite Judge Irma Schoeman rejecting the NPA's bid for 'clarification' on her ruling that acquitted Timothy Omotoso, the State says it will push forward with an appeal — and the Department of Home Affairs has signalled it will lift Omotoso's five-year ban to ensure he faces trial in South Africa.
Despite its failed attempt at gaining more insight into the high court's acquittal of controversial Nigerian televangelist Timothy Omotoso, the National Prosecuting Authority (NPA) said it would be going ahead with the appeal process.
And should its effort be rewarded with a second shot at the leader of the Jesus Dominion International Church and his two co-accused, the Department of Home Affairs has reportedly indicated it would waive his status as an 'undesirable person', lift his five-year ban from South Africa, and allow his extradition to stand trial.
In a brief court appearance on Tuesday, 22 July 2025, the Eastern Cape Division of the High Court in Gqeberha handed down Judge Irma Schoeman's judgment in respect of the NPA's application for her to provide more clarity on the factual findings that saw Omotoso, Lusanda Sulani and Zukiswa Sitho acquitted on multiple charges of sexual assault and human trafficking.
When Advocate Apla Bodlani SC brought the application last week, he indicated that the NPA had grounds on which it wished to appeal against the judgment, but it wanted Schoeman to provide a more detailed explanation of her findings to ensure its approach would be 'sustainable'.
Its application was met with much criticism from the defence, which accused the State of embarking on a 'fishing expedition' to build the basis for its appeal.
Normal procedure would entail the prosecution first lodging an official appeal, then approaching the judge for clarification on specific points raised in the appeal. In this case no appeal process has started, and it appears the State is asking for a blanket clarification of Schoeman's judgment as a whole.
In Schoeman's order, handed down on Tuesday, she agreed that her role in this matter was ' functus officio ' — that she had concluded her duties — and what the NPA was in essence looking for was an altered or supplemented judgment.
'Therefore, the State is not entitled to request clarification of facts prior to the lodging of an application for leave to appeal on a question of law,' Schoeman's judgment read.
During the trial, the accused were represented by Bay attorneys Peter Daubermann and Alwyn Griebenow. While Daubermann was in court last week to argue against the State's application, Griebenow attended proceedings on Tuesday. Afterwards, he said the judgment was not surprising.
'The rules on this sort of procedure are quite clear, and the NPA did not follow protocol. This application was doomed to fail from the start.'
Asked where his client currently resides, Griebenow said Omotoso went to Nigeria after his deportation, and he assumed that was where he remained.
NPA spokesperson Mthunzi Mhaga said they had anticipated this outcome, but it would not deter them from proceeding with the appeal process.
'With respect, there was a misinterpretation of the case law we relied on as well as the intention of our request before the court.'
He said that in order for the NPA to properly draft its questions of law for an appeal it needed to identify factual findings that informed the judge's decision on the acquittal. Mhaga said they did not agree with her order that they must first lodge the appeal before seeking clarification.
'The judge said she cannot correct, alter or supplement her judgment. That was never our request. We wanted her to clarify her factual findings so that we can proceed to finalise the drafting of our questions of law.'
He further said they would move forward with the appeal process before the end of this week, and also, if necessary, prepare a condonation application as their appeal would be filed outside the allotted timeframe.
Upon leaving OR Tambo International Airport in May, Omotoso was named an 'undesirable person' and slapped with a five-year ban from South Africa.
When asked how this would affect the possible extradition of Omotoso should the appeal process be successful, Mhaga said the NPA had already approached the minister of home affairs who agreed to lift Omotoso's ban when the time came.
Mhaga also explained that the investigation into the alleged misconduct of several prosecutors involved in the matter, which ultimately laid the foundation for Omotoso's acquittal, was also ongoing.
'We expected to have received feedback on the findings of that investigation some time ago, but it seems that process is still ongoing and we are still awaiting an outcome,' Mhaga said. DM