S V OMOTOSO AND OTHERS (CC15/2018) [2025] ZAECQBHC 8 (2 APRIL 2025)

CASE NAME: S V OMOTOSO AND OTHERS (CC15/2018) [2025] ZAECQBHC 8 (2 APRIL 2025)

Facts

The first accused, Timothy Omotoso, is the founder of the Jesus Dominion International Church (JDI), a church that operates widely across South Africa. The church has its headquarters in Durban, with established branches in Johannesburg, East London, Gqeberha. Its structure consists of pastors, associate pastors, evangelists, and secretaries, who are under Omotoso’s leadership. The income of the church is generated mainly from the congregation’s tithes, donations, and Omotoso’s appearances on television. Lusanda Sulani (Accused 2), Zukiswa Sitho (Accused 3), and Fizeka, who had already left South Africa before the arrest of the accused were his personal assistants.  

In the area of Umhlanga, the JDI maintained a mission house which was used to accommodate young girls who had joined the church. Within this environment, the girls lived together, eating, praying, participating in choir practice and some went there to either complete their education or further their studies. The complainants, who came from different regions and branches of the church, were often recruited through their local pastors or directly by Fizeka, Sulani, or Sitho, particularly once Omotoso expressed interest in them. Their travel to Durban was facilitated and funded by these intermediaries, either through bus or arrangements or, in exceptional cases, by air travel. The prosecution alleged that Omotoso abused his authority as a spiritual leader to manipulate and exploit young women who were members of his church.

A total of 63 charges were brought against the accused. These included:

• multiple counts of rape and sexual assault under theCriminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007;[1]
• human trafficking under thePrevention and Combatting of Trafficking in Persons Act 7 of 2013;[2] and
• racketeering under thePrevention of Organised Crime Act 121 of 1998.[3]

The State alleged that complainants, mostly teenage girls, were recruited through church activities and transported to mission houses in Durban. There, under the guise of religious mentorship, they were allegedly coerced into sexual activities with Omotoso. The role of Sulani and Sitho was said to involve recruitment, facilitation, and monitoring of the complainants.

The defence denied all allegations. Omotoso and his co-accused insisted that the complainants fabricated their testimony under the influence of external pressure, particularly from interest groups opposed to the church. During the trial, multiple irregularities emerged. These included allegations of prosecutorial misconduct, non-disclosure of amended charges, and evidence that state witnesses had been coached through WhatsApp communication with members of the prosecution team. These irregularities cast serious doubt on the integrity of the trial process.

Issue

The trial raised three main legal issues:

1. The disputes in the trial revolved around the events that allegedly took place in Omotoso’s private room at the mission house, as well as at various venues where church crusades were held.
2. Whether the State succeeded in proving beyond a reasonable doubt that the accused were guilty of the charges of rape, human trafficking, and racketeering.
3. Whether prosecutorial misconduct, irregular amendments to the indictment, and insufficient cross-examination of the accused undermined the fairness of the proceedings to such an extent that convictions could not be sustained.

Legal Reasoning

1. Two Mutually Destructive Versions

• The court recognized that there were two directly opposing narratives: the complainants’ allegations versus the accused’s denials.
• In such situations, the legal test hinges on whether the state can prove, on a balance of probabilities, that the complainants’ version is more credible than the accused’s

2. Cross-Examination Was Severely Deficient

• The prosecution’s primary tool for testing credibility cross-examination was found to be fundamentally inadequate.
• Judge Schoeman criticized that cross-examination lasted less than a morning, despite plenty of material that could have been probed, such as contradictions and improbabilities in the accused’s account
• This failure meant that the accused’s version was left uncontested, weakening the state’s ability to shift the credibility balance

3. Lack of Corroborating Evidence

• The state failed to supplement the complainants’ testimony with external corroborative evidence—for instance, telephone records or other tangible proof that would support their narrative.
• Without such evidence, the complainants’ version could not be deemed more probable or reliable than the accused’s denials.

4. Legal Standard Unmet: Beyond Reasonable Doubt

• Judge Schoeman emphasized that while she might subjectively believe the accused, the legal standard requires that the state must prove beyond a reasonable doubt that the accused’s version is “not reasonably possibly true.”
• Given the lack of corroboration and failure to properly test the accused’s account, the state did not achieve that burden of proof.

5. The Court reaffirmed foundational principles of South African criminal law. The State bears the onus of proving an accused’s guilt beyond a reasonable doubt (S v V2000 (1) SACR 453 (SCA);[4]R v Difford 1937 AD 370).[5] The accused has no duty to prove their innocence; if their version is “reasonably possibly true,” they are entitled to acquittal.[6]

On evaluating the evidence, the Court acknowledged the seriousness of the allegations and the emotional weight of complainant testimony. However, it stressed that even credible witnesses cannot overcome the State’s duty to prove guilt to the high criminal standard. In this case, the prosecution’s case was fatally compromised:

• Prosecutorial misconduct: The lead prosecutor was implicated in unethical behaviour, including alleged attempts to influence witness testimony. This not only undermined the credibility of the case but threatened the fairness of the entire trial.[7]
• Improper amendments to the indictment: The indictment was amended without proper disclosure to the defence, infringing on the accused’s right to prepare adequately.[8]
• WhatsApp group with witnesses: Evidence showed that state witnesses had been in direct contact with prosecutors via WhatsApp. This created the perception of witness coaching and tainted the reliability of testimony.
• Inadequate cross-examination: Cross-examination of Omotoso was described as “desultory in the extreme.” Following S v Boesak [2000] ZASCA 24[9] and President v SARFU 2000 (1) SA 1 (CC), the Court held that untested evidence cannot simply be rejected. If the accused’s version is left largely unchallenged, a conviction cannot stand.[10]

The Court emphasised that criminal justice requires not only the prosecution of offenders but also the protection of the constitutional right to a fair trial (s 35 of the Constitution).[11]

Outcome

The court conducted a careful evaluation of the evidence presented by both the state and the accused to determine whether the prosecution had proved the charges beyond reasonable doubt. The court emphasized that the evidence of single witnesses must be approached with caution, and it would be incorrect to simply believe the complainants and dismiss the accused’s defence as false. Where there are two mutually destructive versions, each must be assessed in accordance with the principles in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E)[12], weighing credibility against the general probabilities of the case. The court identified several deficiencies in the complainants’ evidence, including the absence of corroborating evidence such as first reports or telephone records, deviations from police statements, and the potential influence of Mr Ntelwa, whose attempts to affect witness testimony only emerged after the witnesses had testified, leaving no opportunity for cross-examination. Certain witnesses, including the twins and S[…] M[…], displayed conduct that cast doubt on the reliability of their testimony, such as publicly supporting the accused after his arrest or returning to the mission house despite knowing what would be expected of them. The court also rejected the application of similar fact evidence as proposed by the state and noting that the circumstances, including WhatsApp communications among the complainants, raised concerns regarding the fairness of the trial. [13]

A critical factor in the judgment was the poor quality of the cross-examination of the accused, meaning that the accused’s evidence was largely uncontested and could not fairly be rejected. The irregular conduct of Mr Ntelwa and the uncertainty arising from his actions further complicated the assessment of witness credibility. Although some aspects of the complainants’ evidence were unsatisfactory, they were not inherently incredible, and the accused’s denials could not be dismissed as false. The court concluded that, while the accused’s explanations were improbable and not subjectively believed, they were not so implausible as to be impossible, and the accused bore no burden to prove their innocence.[14]

Ultimately, taking into account the mutually destructive narratives, deficiencies in the complainants’ evidence, the potential influence of Mr Ntelwa, and the lack of proper cross-examination, the court found that the state had not proved its case beyond reasonable doubt. Consequently, the accused were found not guilty and discharged on all charges.[15]

Ratio Decidendi

The ratio of the case is that in criminal proceedings, where prosecutorial misconduct, irregular amendments, or inadequate cross-examination undermine the fairness of a trial, the accused must be acquitted if their version is reasonably possibly true. This reaffirms the centrality of the presumption of innocence and the constitutional requirement that the State must prove guilt beyond reasonable doubt.

Reference(S):

[1] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

[2] Prevention and Combatting of Trafficking in Persons Act 7 of 2013

[3] Prevention of Organised Crime Act 121 of 1998

[4] S v V 2000 (1) SACR 453 (SCA)

[5] R v Difford 1937 AD 370)

[6] S v Shackell2001 (2) SACR 185 (SCA)

[7] S v Lubaxa 2001 (2) SACR 703 (SCA)

[8] S v Hugo 1976 (4) SA 536 (A)

[9] S v Boesak [2000] ZASCA 24

[10] President v SARFU 2000 (1) SA 1 (CC),

[11] The Constitution of the Republic of South Africa, 1994

[12] National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E)

[13] S v Nduna [2010] ZASCA 120

[14] Ferreira NO v Levin NO 1996 (1) SA 894 (CC) para 153

[15] S v Omotoso [2018] ZAGPPHC 129