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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
CASE NO.: CC15/2018
In the matter between:
STATE
And
TIMOTHY OMOTOSO Accused 1
LUSANDA SULANI Accused 2
ZUKISWA SITHO Accused 3
JUDGMENT
SCHOEMAN J
[1] The three accused have been charged either jointly or individually with 63
counts: contr avening sections 2(1)(f) and 2(1)(e) of the Prevention of Organised
Crime Act 121 of 1998 ( POCA); sexual assault in contravention of s 5(1) of the
Criminal Law (Sex ual Offences and Related Matters) Amendment Act 32 of 2007
(Sexual Offences Act); rape in contra vention of s 3 of the Sexual Offences Act;
trafficking in contravention of s 71(1); and traffic king in persons for the purposes of
sexual exploitation in contrav ention of s 4(1) of the Preve ntion and Combatting of
Trafficking in Persons Act 7 of 2013, as well as alternatives to those charges.
[2] This judgment deals with the evidence presented in the trial as well as the
relevant facts that were disclosed and came to the fore in different applications that
were brought during the trial. More specifically the application to call advocate
Cerfontein as a witness in terms of the provisions of section 186 of the Criminal
Procedure Act 51 of 1977 (CPA) and the a pplication for a mistrial.
Comm on cause facts.
[3] The version told by the complainants, with which the accused generally
agreed, was that the first accused is the founder and head of the Jesus Dominium
International Church (JDI). The JDI ope rates in various centres in South Africa and
has branches inter alia in Johannesburg, East London and Gqeberha with the
headquarters in Durban. The JDl's structure further consists of pastors, associate
pastors' evangelists and secretaries. The income of t he church is inter alia derived
from donations, tithing and the TV appearances of accused 1. Accused 2 and
accused 3 are personal assistants of accused 1. Accused 1 also had another
personal assistant, Fizeka, who had left the country prior to the accused' s arrest.
[4] In Umhlanga the J DI had a mission house where young girls would gather,
pray together and practice choir, eat and stay.
[5] All the complainants joined the church at various times from different regions
and branches. It is common cause that during services there were testimonies how
accused 1 healed people and people had financial breakthroughs through his
interventions.
[6] The complainants were either recruited to go to Durban by their local pastors,
or Fizeka, or accused 2 and accused 3 after accused 1 displayed an interest in them.
All the complainants became members of the church and went to Umhlanga where
they stay ed in the mission house to develop their music skills, to pray and healing.
Some went there to complete their education or to further their studies. Their
transport costs to Umhlanga were paid and transport was arranged by Fizeka or their
local pastor or a ccused 2 and 3.
[7] Accused 1 is a self -taught musician playing different instruments he used in
accompanying the choirs. He considered himself a prophet and he was seen as one
by his congregation members. He professed to heal the sick and to perform mira cles.
Testimony was given that if one of the pastors died, he would tell the congregants
that it was because the deceased had not listened to him. The JDl has branches in
all nine provinces of the country. The church holds crusades in different centres of
the country which crusades are attended by the members who come from all
branches and regions to attend such crusades. Sometimes accused 1 preached live
from Durban on televised services. At services the so called miracles accused 1
performed were shown o n TV screens. All the complainants were members or
attended services in the different branches and in this way were persuaded to join
the J DI. Once a complainant is introduced to accused 1 or given his cell phone
number she is required to send text message s to him regularly. The complainants
were given money or sent money to enable them to go to Umhlanga by bus or in
exceptional circumstances to fly there. The complainants largely became members
of singing groups, the Grace Galaxy or the Chrysalids that per formed at the
crusades and travelled with the accused to the various centres. At the mission house
the complainants stayed in groups in different rooms and there were at times
approximately 25 girls in the mission house. There they engaged in music and
singing practice, prayer sessions, they played games and had individual
appointments with accused 1. According to the complainants they were then
individually summoned to his room by one of his personal assistants after being
ordered to shower and clean the mselves. In his room they were ordered to close the
door and there they kneeled before him where he sat on the bed. They were then to
massage his feet.
[8] The issues in the trial largely centred on what happened inside the room of
accused 1 at the missio n house and at other centres where they attended crusades.
It is common cause that the complainants massaged his feet. According to the
complainants it is generally during those appointments when he sexually assaulted
them or raped them after coaxing them onto his bed. After the sexual assault he
ordered them to his bathroom to clean themselves. These scenes repeated
themselves and some of the complainants were repeatedly sexually assaulted or
raped. It is a recurring theme that some of the complainants lef t the mission house
but returned on their own volition.
The histo ry of this trial.
[9] The trial commenced before me in July 2019. After initial applications for
further particulars and an objection to the jurisdiction were dismissed as well as the
applic ations to appea l against those orders were dismissed, the state commenced
with the leading of evidence . It then became apparent that the evidence was not in
line with the indictment. It is appro priate to mention at this stage that Mr Ntelwa, who
was the le ad prosecutor at the time, assure d me that he had consulted with all the
witnesses, for it seemed that he was not au fait with th eir evidence. He initially
indicated that he was not going to apply for an amendment of the indictment, but he
did bring such an application. Some of the amendments were granted but ot hers
were refused. It later transpired that the indictment served on the accused was not
the same indictment that they were asked to plead to. This second indictment
incorporated some of the amendm ents that was the subject matter of the application
to amen d.
[10] I was informed at one stage, after the first witness had testified, that Mr
Ntelwa was being replaced as the main prosecutor and the matter was postponed
enabling another prosecutor to com e up to speed. However, Mr Ntelwa was placed
on record again after May 2020 and he c ontinued leading the evidence of the
respective witnesses.
[11] When Ms J[...] testified, he did not lead her evidence, but another prosecutor
did so. During her evidence as she testified about the events that gave rise to the
charges against the ac cused, it became apparent that she deviated from her version
as told to the expert, P rofess or Muller and the second indictment where the charge
of sexual assault had been amen ded to rape. Thereafter Ms Cerfontein, who was
previously in the prosecuting team, but had withdrawn, disclosed to Mr Daubermann
that Ms J[...], during consultation, averred first accused put his fingers into her vagina
and thereby raped her. This precipitated an ap plication to call Ms Cerfontein as a
witness. This application was refused . Thereafter, due to further facts that had been
disclosed, an application for a mistrial was lodged by the accused wherein
voluminous affidavits were filed. The application w as dismissed but I also ordere d
that the prosecutor, Mr. Ntelwa, be replaced. After the trial recommenced the cross
exami nation of Ms J[...] continued and her evidence was finalised. Just one further
witness testified.
[12] During the trial and before fin alization of the state case and a further
application was broug ht for special entries in terms of section 317 of the CPA At a
previous junction in the case an application was also brought for special entries to be
made. The state and the defen se agreed to the following special entries
(a) On 3 July 2019, the lead prosecutor in the case, Advocate Nceba
Ntelwa, proposed to his supervisor, advocate Gounden, and his junior in the
case, advocate Cerfontein, in an e -mail which he sent to them that certain
state witnesses, namely Ms J […]. Ms M[...] and Ms M[...] be suborned to
commit perjury.
(b) Advocate Ntelwa, Advocate Cerfontein, Advocate Makasana and
advocate Babulwa, full prosecutors in the case, intentionally failed to disclose
to the court and/or the defence that Ms J[...] had made a previous inconsistent
statement to advocate Cerfont ein to the effect that the first accused had
inserted his fingers into her vagina.
(c) Advocate Ntelwa's superiors Advocate Goberdan and Advocate
Gounden allowed Advocate N telwa to continue to prosecute the accused in
the knowledge that advocate Ntelwa had made the proposal referred to in
paragraph (a) above.
[13] After an application in terms of the provisions of s 174 of the CPA, 31 of the
charges were dismissed as n o evidence was led in respect of those charges. Two
other counts were also di smissed as I found the that the witness Ms J[...]'s evidence
could not be relied on.
[14] Eleven complainants testified on behalf of the state as well as two expert
witnesses. After t he application in terms of s 174 was partly dismissed, a further
application was brought to hav e the evidence of the complainants ruled inadmissible
on the basis that the trial was unfair. This application was also dismissed. All the
accused testifie d in their own defence in respe ct of the remaining charges.
The State case
[15] It is a recurring theme that the complainants would be called for an
appointment with accused 1 in his bedroom by either Fizeka or accused 2 or
accused 3. It was during some of these appointments that accused 1 sexually
assaulted them or raped them. The evidence was that when these assaults occurred
accused 1 would tell them to lie on the bed after fetching a towel from his bathroom.
He would lie on top of them with the l ower part of his body naked and 'hump' them
(as they described it) until he ejaculated. Then he would send them to his bathroom
to clean themselves and send them out of the room after praying and asking for
God's forgiveness as they have sinned. The compla inants realised that the
appointments they were called to was a euphemism for sex with accused 1.
[16] A[...] D[...] was 30 years old and resided in East London. She joined J DI in
2014 after she retur ned from Cape Town on her mother's insistence as she struggled
with an alcohol addiction. She had seen videos of accused 1 where he healed
people. One su ch video was about a child that was born without an oesophagus who
was miraculously healed after accused 1 prayed for him. This video was played at
church services and many of the other complainants testified about this as well. Ms
D[...] started a business baking and selling cakes muffins and bunny chows. She
attended crusades in other centres and in 2015, at a crusade in East London, she
acted as an usher. She was standing at the back of the church when accused 1
walked towards her. He spoke to her and gave her his telephone number. Thereafter
accused 2 and 3 took the complainants cell phone number and accused 3 told her
that accused one liked her and that she will contact the complainant later. At an other
crusade accused 3 told -her to go and greet accused 1. She complied and accused 1
shouted at her at her for not texting him. He told her that her destiny is at the mission
house in Durban, and she should never offend him because he was God's favorite
child and she must be obedient to accused 1 when she ar rives at the mission house.
She went to Durban after receiving money from the accused and upon arrival at the
house she was shown a room where six other girls also stayed. She was taken to
the bedroom of accused 1 and he said that there were girls inside t he house that
were satisfying themselves sexually with a shower, but it will never be the same as
this, while pointing at his penis. In the lounge she saw accused 1 touching the girls'
breasts, backsides and lifting their skirts; she was shocked and scared . Later that
evening she was called to his room where he took her on his bed and the scene as
set out in para 15 supra played out and he gratified himself until he ejaculated. He
then said a prayer 'Lord forgive us wash us with the blood of Jesus, write ou r names
in the book of life.'
[17] She stayed at the mission house for a period of about 13 months where he
sexually assaulted her repeatedly. The complainant and the other girls were
instructed to undergo HIV tests, and the results were given to accused 2.
[18] L[...] M[...] testified that at the time of her joining J DI in 2012 she had a heart
condition and was homeless. Her pastor arranged and financed her trip to Durban to
attend a crusade. At another crusade in Secunda Fizeka ordered her to get into a
motor vehicle. Accused 1 was inside the vehicle with 2 members of the Grace
Galaxy choir. They went to a hotel in Sandton where accused 1, later in the evening,
in his room, instructed her to take off her panty. She was scared and shaking and
accused 1 tol d her to relax and he dismissed her from his room. She was later
instructed to attend a crusade in Durban and was sent money to go to Durban. At the
mission house she was instructed to go for an appointment with accused 1. There
she had to massage his fe et, and the same scenario followed as set out previously
as he sexually assaulted her. After accused 1 ejaculated he placed his hand on her
forehead and prayed: 'Forgive our sins, we have sinned.' M[...] stayed at the mission
house for 3 weeks and after eve ry appointment he would recite the same prayer.
[19] M[...] went to different mission houses (as they had moved to a different
house) from 2012 until 2016 where sexual assaults happened regularly. After an
incident where a girl was pregnant and she took he r to see accused 1, and the girl
came back crying, s he decided to expose accused 1 and attempted to lay a charge
with the police. She also contacted other girls that had been at the mission houses.
The police advised her to go back to the church to resolve the issue. One of the
other girls later contacted her to say that she had successfully laid a charge, and the
police will contact her.
[20] The twin sisters, A[...] and L[...] M[...] , were participants in the South singing
competition Idols. They wish ed to join the Grace Galaxy choir but were rejec ted due
to their age of 17 years. Later, another member of the choir contacted them and
thereafter Fizeka called them and informed them that they are part of the Grace
Galaxy. They were t oId that they had to go to the mission house in Umhlanga to
rehearse with the group. They were still attending school and accused 1 paid their
school fees. They were in the same way individually called to an appointment where
they were sexually assaulted. After the sexual as sault accused 1 prayed 'God have
mercy on us'. This happened more than once to each o f them. When they went to
accused 1 to tell him that they intended to leave the mission house, he cursed them
and told them that their body parts will be scattered all over and that dogs will drink
their blood in the streets. He also said that one of the sisters will get pregnant and
both will marry the same man.
[21] What distinguishes their evidence is that after accused 1's arrest, they were at
the front o f a group of yo ung girls protesting his innocence that was broadcast on
television. They that it was because accused 2 told them always to protect accused
1. N[...] came forwa rd and reported the abuse as she could not live with the guilt
anymore.
[22] G [...] R [...] M [...], the mother of the twins testified that she knew all the
accus ed from the J DI church. Fizeka came to her and asked her to send the twins to
accused 1 to be, trained in music. She refused to do so. However, the twins begged
her to go and eventually they went. They were supposed to return as they were still
attending But she was not all owed to see her children and when she saw her
children at church, th ey ran away when accused 1 appeared. She went to report the
matter to a Brigadier in the South African Police Servi ce. The latter told her that there
is nothing they could do about it. She had seen that the police feared accused 1, for
in church they went as far as taking off their uniforms and laid it on the floor so that
accused 1 could walk on it. She found accused 1's number and phoned him and told
him to let her children come home. He called her stupid and ungrateful, but the next
day the twins came h ome.
[23] H[...] V[...] F[...] joined JDI in 2009 in East London. In 2013 a flight was
booke d for her to go to Durban for an audition for the Grace Galaxy choir. The first
night she was th ere she was called to accused 1's room by Fizeka. Accused 1 tol d
her to lock the door and h asked her to lock the door. He asked her what she
wanted him to· be. He was dissatisfied when she replied a father figure, he said he is
not there to play father. When she respo nded 'mentor' he said he does not like slow
people and she can be his girlfriend. When she reiterated that she wanted him to be
a father figure he instructed her to call Fizeka. The latter told her accused 1 does not
want to be a father figure and she must listen to him. She went back t o his room an d
the sexual assault by accused 1 followed the same pattern as previo usly set out.
Afterwards he prayed God have mercy on us. Accused told her to move to Dur ban
permanently as he will pay for her studies. She did so in December·2013. When she
refused to g o for appointments to his room he would curse her and he told her she
will die. T he sexual assaults and oral sex she had to perform happened regularly and
he would pray a fter such sessions. When she refused to go for further appointments
accused 1 chased h er away in December 2014.
[24] S[...] N[...] M[...] became a member of J DI in 2012 when she was 17 years old.
In December 2013 she met accused 1. After she received her matriculation results in
January 2014 her pastor asked her if she wanted to share her testimony about the
said results in Durban. Shortly afterwards she received a call from accused 1 during
which call asked her if she had a boyfriend and he told her he will be her boyfriend.
After sending him photos of her, at his request, she received a call from Fizeka. The
latter mentioned sent her money and she went to Durban by bus. When she arrived
at the mission house, she was taken to accused 1's room. He asked her what she
wanted, and she said she wanted to further her studies as she was an orphan and
lived with her grandparents. He said she was in good hands and she went back to
her room. That night a t about 2 am Fizeka woke her and took her to accused 1's
room. When he wanted her to take off her panties she lied and said she was
menstruating. Accused 1 became angry and called Fizeka who said that she made
God angry. Fizeka said she must apologize whic h she did. She was given money to
go home to Secunda. A few days later she received money again and was told that
she must return to Durban. On her return accused 1 told her she must be obedient if
she wanted to survive. God had shown him that she must g o into business and not
study further. At the time there was an article in the newspaper where the mother of
the twins alleged that accused 1 had kidnapped her children. For a period of 3 weeks
all the girls and accused 1 stayed in a hotel and afterwards t hey all moved to a
house in Royal Palms in Umhlanga. There she was summoned to accused 1's room
by Fizeka. She was sexually assaulted by accused 1. Afterwards he prayed 'God
forgive our sins, wash us with the blood of Jesus, be with us in Jesus name.'
Thereafter the sexual assaults occurred regularly and he also instructed her to have
oral sex. She testified how the congregants, which included police officials, idolised
accused 1. She was contacted by Ms J[...] regarding a program that was broadcast
about a ccused 1 on Special assignment.
[25] Z[...] M[...] was 25 when she testified in 2021. She was a member of J DI from
2011 until 2016. In 2012 her pastor told her there was an opening in Grace Galaxy
and she must phone accused 1. She sent him an sms and he called her. He wanted
to know if she knew anyone in the mission house and she said J[...]. The latter
phoned her and said accused 1 said she must send him photos of herself. She did
so. Accused 1 phoned her and told her he wanted her to come to Durban. He mother
refused as she was in grade 12 and attending school. In August 2012 she attended a
crusade in Durban after she informed accused 1 that she wanted to go. She travelled
to Durban with the church transport after Fizeka sent her money. After the church
service she went to the mission house on instructions of Fizeka. She slept in a room
with Fizeka, saw accused 1, but went home after the weekend without incident. In
December 2012 she attended a two week long service in Durban and she travelled
with five other girls. After the service she went to the mission house and there were
approximately 30 girls there. She slept in an outside room with 10 other girls. She
was called to his room where he got on top of her while she was clothed as she
stopped him fro m removing her pyjamas. He ejaculated and afterwards prayed for
mercy and for God to forgive them. After a week she went home without further
incident.
[26] She went to Durban twice after that. She went to the mission house in August
2013. She was called to his room where he asked her if she had a boyfriend and
what she wanted from him. She said she needed a mentor and father. He then told
her that he can see she was not serious. Thereafter he ordered her onto the bed and
followed the same routine as set out earlier until he ejaculated. In August 2014 she
was again called to the mission house. She and another girl went to accused 1's
room after they were called. They indicated to him that they wanted to go home the
following day. The next day he preached i n church that people who leave him will die.
She and the other girl became scared and stayed for a further 3 weeks. During
Eastern 2016 she travelled from Secunda to Durban. At the mission house accused
1 told her that she had penis written all over her fa ce. She left after two days. She
feared accused 1 for what he predicts does happen and he is able to perform
miracles.
[27] D[...] V[...] N[...] was 26 at the time she testified in 2023. In 2009 when she
was 12 years old, she attended JDI with her ste pmother. She joined the church choir,
Hosana Voices, and she knew accused 1 as the person who leads the Grace Galaxy
group. She attended a crusade at the Motherwell Sports Centre where someone told
her that accused 1 wanted to see her. She went to him and he asked her whose
child was she. She called her stepmother and accused 1 told her stepmother that he
wanted to take over the complainant's life. The stepmother agreed. She was still in
grade 10 and did not have a cell phone after which accused 1 gave he r R1000 to
buy a cell phone. She sent a sms to thank him from the new cell phone. She was
called to a crusade in Cape Town where accused 1 asked her how close does she
want to be to him. She said she wanted him to be her spiritual father. Accused 1 told
her she must go and think about her answer and dismissed her. She did not send
him messages and did not call him. He called her at 3 am one morning and shouted
at her that she is misbehaving, busy with boys, not listening to him and not
cooperating.
[28] Fizeka booked a flight for her to Bloemfontein as there was going to be a
crusade there. She was taken to accused 1's hotel room where he sexually
assaulted her. In the lounge of the hotel accused 1 told Fizeka she is fire -fire. She
realised that she was t aking the man of God in the wrong way. When she was in
grade 11 there was a crusade in Gqeberha. As she walked, accused 1's car stopped
and he instructed her to get in. He asked her to move to Durban and he promised to
pay for her schooling. She asked her biological mother's permission and thereafter
Fizeka told her that she is booking a flight to Durban. In Durban she was taken to the
house where accused 1 stayed with other girls. Fizeka told her to wash and took her
to accused 1's room. There accused inst ructed her to take off her clothes and he
sexually assaulted her after he told her that she is his girlfriend now and is fire -fire.
[29] The group Grace Galaxy was formed and she was one of the members. They
moved into a different house where accused 1 als o came to stay. He continued his
sexual assault every night. She accompanied accused 1 to Nigeria to attend a
crusade. She was called to his room one night where she had to perform oral sex
and thereafter he sexually assaulted her as well. They flew back t o South Africa.
[30] D[...] N[...] also accompanied accused 1 to Israel in 2013 or 2014. He told her
and the other church members that were accompanying him that they can see the
life he is introducing them to if they were to stick with him. After a c hurch service she
was called to the room of accused 1 where he again sexually assaulted her. On their
return she was diagnosed with tuberculosis and admitted to hospital. When she was
discharged about 3 to 4 weeks later accused 1 told her that she must ret urn to
Gqeberha. He called her again and they left for Nigeria with the twins and V[...] F[...]
where they recorded a music video before they returned to South Africa. Back in
South Africa accused 1 verbally abused her. In 2015 the girls decided as a group
they wanted to go tell him they wanted to go home. They did so and at a night vigil
that evening he called them to the front of the church and told the congregation that
they are ungrateful and they will never get better and he will see where they ended
up. They left by bus that night. In 2015 the complainant relocated to Cape Town. She
was called by accused 2 who told her that accused 1 said she must go back to
Durban. In 2018 Fizeka called her and told her that there is a journalist asking
questions and s he should not divulge what happened in Durban.
[31] C[...] Z[...] had testified in the trial that had commenced before Makaula J
before he recused himself. She joined the J DI in 2009 when she was 13 years old.
Initially she was a member of another church, but she attended a service of the J DI;
at this service the video of the boy born without an oesophagus and was healed by
accused 1 was shown. This, as well as other videos of accused 1, impressed her so
that she joined J DI as a member. She went to a crusa de in Durban where she saw
accused 1 surrounded by beautiful girls and saw the Chrysalides sing. She decided
she also wanted to be like those beautiful girls. Accused 1 accompanied the singers
on a keyboard and the pastor said anyone who wanted to sing m ust put their names
down. She had been singing from the age of 3 and put her name down. After she
sang the pastor told her that accused 1 really liked her. T […], one of the beautiful
girls, gave her accused 1's telephone number and said that she must pho ne accused
1 daily. She did so and told him everything that she was doing. She felt that she was
chosen by God. In 2010 she was invited to Durban, where accused 1 was going to
train singers. When· she told accused 1 she was coming he said she can come and
stay at his house. After the se rvice Fizeka told her that accused 1 was waiting for her
and when she got outside he was waiting in his Lexus. They went to the mission
house. She was called to his room and he wanted her to get on the bed with him. He
asked h er about her love life and how close she wanted him to be. She could sense
that the answers she gave was not what he wanted and he told her to go. She was
again called to his room. There he masturbated and was on top of her with his lower
body naked. She c ould feel his penis on her clitoris and entering her vaginal opening
slightly. After ejaculating he told her to go wipe herself and get back into bed. He fell
asleep on top of her. When he woke up he rolled off and started praying 'God have
mercy on us for we have sinned'. After instructing her to get dressed he told her what
had happened between them was a covenant between them and God and she
should not tell anyone. If she broke the covenant the punishment will be death. He
asked her again how old she was and she told him she was 14. He said the man of
God cannot go to jail and she assured him that she will not tell anyone. She also
went to Nigeria and Israel with accused 1. She was repeatedly sexually molested on
those trips.
[32] Two experts testified on behalf of the state, Professor Karen Muller and Karen
Hollely. It was not in issue that they were in fact experts. Dr Muller is a leading
international expert on crimes of sexual and gender based violence against children
and other vulnerable groups. Ka ren Hollely has been working with the Child Witness
Institute for 25 years and her focus is on issues around trauma in cases of violence
against children specifically and other vulnerable groups and disclosure processes
and reasons for delay in reporting.
[33] They interviewed the complainants and found that accused 1 manipulated the
complainants by fear and threats. He continuously asked them what they wanted
from him while he knew they wanted to be close as he professed to be a man of God.
In this way he made them complicit in his predatory behaviour. He made them
believe that he had direct contact with God and had unlimited power.
The defence case
[34] The first accused confirmed that he is the founding president of the J DI. The
church has mission houses that are places where religious activities occur e.g.
prayer sessions, music rehearsals and 'biblical things'.
[35] Girls who were members of the c hurch stayed in the mission houses. He had
his own room at the mission house where he spent nights when he was too tired to
go home to his wife and children. He provided financially for the women and girls
who stayed there as he gave money for them to buy food. Accused 1 denied that he
raped or sexually assaulted any of the women or girls that stayed in the mission
house or any of the church members .
[36] Accused 1 likewise denied that he trafficked any person for sexual purposes
or was involved in such tr afficking. He also denied that he was managing an
enterprise conducted through a pattern of racketeering activity or participated in the
conduct of an enterprise through a pattern of racketeering. Accused 1 meticulously
testified about the charges against him relating to the statutory crimes and the
elements of those crimes. He denied that he committed any of those crimes.
[37] Accused 2 joined the JDI church in 2006. She first moved to Pretoria with her
husband in 2007 and then to Durban in 2010 or 2011 . She lived with her husband
and children. Ms Sulani was an active volunteer and when she started visiting the
mission house she asked to join the women who were ironing accused 1's clothes.
She sometimes stayed over but did not live there permanently. She travelled to
Nigeria and Israel with accused 1 and the church. She denied that she recruited any
girls for the mission house or threatened anyone to stay there. Ms Solani denied
while going through the elements of the crimes that she participated in the c onduct of
an enterprise through a pattern of racketeering activity or trafficked in persons for
sexual purposes or was involved in trafficking in persons for sexual purposes. She
likewise denied raping or sexually assaulting any of the complainants or cons piring
with another to commit a sexual offence.
[38] Accused 3 testified that she is a married housewife with two young daughters.
She joined JDI in 2005 and was a secretary of the church from 2006 until the arrest
of accused 1 in 2017. Her duties entaile d inter alia driving accused 1 in Gqeberha
when he was in the city, calling people out for prayer according to their requests,
transcribing accused 1's sermons and reading chapters of his book to the
congregation.
[39] She would visit the mission house in Umhlanga once a month on her own
costs and would join the girls for prayers. She also attended crusades in different
provinces when she could. She did not accompany accused 1 on his overseas visits.
When she went to the mission house in Umhlanga she would stay in a hotel with her
husband. However, when her husband did not accompany her, she stayed at the
mission house and shared a room with accused 2. She also went to accused 1's
room for counselling and saw girls there, massaging accused 1's feet. She did not
massage his feet. He never acted inapprop riately to her. Nobody reported any
sexual assault or behaviour to her and she did not encounter a culture of fear in the
mission house. She did not recruit people for accused 1 or contacted anyone to
come to·Durban or prevented anyone from leaving the mis sion house.
The conduct of the prosecutors.
[40] Unfortunately in this matter there have been problems, some of which can be
classified as unethical conduct or incompetence of the prosecution, even from before
the trial commenced, which only came to th e fore during the trial. The following
matters can be used as examples.
• An indictment was served on the accused which started the proceedings
against them. The indictment that the accused were required to plead to (the second
indictment), differed from the indictment served, without informing the court or the
defence of this fact. This only became apparent at a later stage of the proceedings.
• Ms Cerfontein, one of the initial prosecutors in the case, consulted with some
of the witnesses. She established that the witnesses' police statements differed from
their versions during consultation or differed from the indictment. She advised Mr.
Ntelwa, the lead pros ecutor in the case, advocate Goberdan and advocate Gounden
of the discrepancies. Instead of obtaining the correct version by way of written
affidavits, Mr. Ntelwa wrote in an e -mail that the witnesses should be persuaded to
stick to their version as set ou t in their police statements to prevent a possible
postponement. Ms Cerfontein brought this email to the notice of Advocates
Goberdan and Gounden. But, in stead of censuring Mr. Ntelwa, despite realizing the
unethical suggestion, the second indictment was drawn in corporating some of the
amendments in accordance with the witnesses' statements to Ms Cerfontein.
• As set out earlier, the actions of Advocates Ntelwa, Goberdan and Gounden
amounted to irregularities.
• Further consultations with the other witnesses by Ms Cerfontein were
cancelled without her being given any reason for such cancellation. A probable
inference is that Mr Ntelwa did not want other witnesses to deviate from their police
statements that could be exposed during consultation.
• When Mr Ntelwa was going to be replaced as prosecutor in the trial, after the
first witness had testified, Ms C[...] Z[...], the only complainant who had testified in
the trial before Makaula J, wrote a letter to Ms Batohi complaining about the decision
that Mr Ntelwa would be replaced. She also objected to Advocate Cerfontein and
included the names of witnesses in the matter who also petitioned 'against the
assignment of Ms Cerfontein'.
• This letter was forwarded to Mr Sekata, the Acting Director of Public
Prosecutions in M akhanda (Grahamstown) for his comments. I have not been
furnished with any comments he might have made, but it is after this that Mr Ntelwa
rejoined the prosecuting team. This was done while Mr Ntelwa's superiors knew of
the suggestion he made that the wit nesses should be persuaded to stick to their
police statements and thereby commit perjury.
• During the trial Mr Ntelwa, while one of the witnesses were being cross -
examined, during an adjournment, went into the witness room and spoke to the
witness. He cl aimed that it was to comfort her. As he was an officer of the court,
such assurance was accepted. However, due to the lie he later told in court that I will
refer to infra, I am not sure that it was in fact innocent. If he did consult with the
witness, it amounts to unethical behaviour.1
• When Ms J[...]'s testimony commenced, it was not Mr Ntelwa that led her
evidence but Mr Matakana. It became obvious when cross -examination started why
that was t he position, for then the contradictory statement she had made to Ms
Cerfontein was disclosed. Ms Cerfontein had then, as an ethical prosecutor should,
disclosed to Mr Daubermannn that the witness had made a contradictory statement
to her.
• When I .pertin ently asked Mr Ntelwa whether he knew that Ms J[...] had made
a contradictory statement, he denied that he knew.
1 CODE OF PROFESSIONAL CONDUCT & ETHICS OF THE NATIONAL BAR COUNCIL OF
SOUTH AFRICA. Rule 26.2.
• The emails between the prosecutors were then disclosed to the defence after
requested by the defence to do so. However, there were large port ions of such
emails that had been redacted and blocked out. When the unredacted emails were
disclosed, it referred to further discrepancies between the statements of further
witnesses and the consultations with Ms Cerfontein. The fact that there had been
redactions is indicative of the attitude, despite what had been disclosed at that stage,
that the prosecutors still did not play open cards with the court and the defence.
• These emails showed that the assurance that Mr Ntelwa gave to the court that
he did not know of the contradictory statements, was false. For he was informed by
Ms Cerfontein after her consultations at the same time that she informed his seniors.
• The defence brought an application for a mistrial where copious affidavits
were filed. Mr N telwa averred in one of such affidavits that he did not know that
digital penetration of the genitalia constituted rape. It is inconceivable that a
prosecutor with 14 years' experience, that is involved in a case where rape is one of
the crimes accused 1 f aced, does not know what the definition of rape is. He was
either extremely incompetent or dishonest when deposing to such an affidavit.
• Mr Ntelwa also est ablished a WhatsApp group where all the complainants
were connected. When this was revealed, Adv Gounden, Mr Ntelwa's senior,
confronted Mr Ntelwa about this. Mr Ntelwa informed Adv Gounden that it was purely
for logistical reasons. In stead of investigati ng this, all the WhatsApp messages were
deleted. There had been an application to have this action of Mr Ntelwa and the lack
of action by Mr Gounden declared a special entry. I refused, however, it is factor that
should be considered when assessing the que stion whether the state has proved its
case beyond reasonable doubt.
The legal position
The burden of proof.
[41] The state must prove its case beyond reasonable doubt. There is no onus on
the accused to prove his or her innocence or convince the court of the truthfulness of
any explanation proffered. It is apposite to set out what such evaluation entails.
In S v V2 Zulman JA set it out as follows:
"It is trite that there is no obligation upon an accused person, where the State
bears the onus, 'to conv ince the court'. If his version is reasonably possibly
true he is entitled to his acquittal even though his explanation is improbable. A
court is not entitled to convict unless it is satisfied not only that the explanation
is improbable but that beyond any reasonable doubt it is false. It is
permissible to look at the probabilities of the case to determine whether the
accused's version is reasonably possibly true but whether one subjectively
believes him is not the test. As pointed out in many judgments of this Court
and other courts the test is whether ther e is a reasonable possibility that the
accused's evidence may be true."
In the oft quoted case of R v Difford3 it was set out as follows by Greenberg J:
'…no onus rests on the accused to convince the court of any explanation
which he gives. If he gives an explanation, even if that explanation is
improbable, the court is not entitled to convict unless it is satisfied, not only
that the explanation is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation being true, then
he is entitled to his acquittal.'
ln R v M4 Davis AJA said:
'…The court does not have to believe the defense story, still less does it have
to believe it in all its details; it is sufficient if it thinks that there is a reasonable
possibility that it may be substantially true.'
2 2000(1) SACR 453 (SCA) para 3.
3 1937 AD 370 at 373
4 1946 AD 1023 at 1027
Furthermore, Brand AJA said in S v Shacke ll5:
'It is a trite principle that in criminal proceedings the prosecution must prove its
case beyond reasonable doubt and that a mere preponderance o f
probabilities is not enough. Equally trite is the observation that, in view of this
standard of proof in a criminal case, a court does not have to be convinced
that every detail of an accused's version is true. If the accused's version is
reasonably poss ibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible to test the accused
version against the inherent probabilities. But it cannot be rejected merely
because it is improbable; it can only be rejected based on inherent
probabilities if it can be said to be so improbable that it cannot reasonably
possibly be true.'
Cross -examination
[42] Mr Daubermannn on behalf o f the accused argued that the cross -examination
of the accused came to no cross -examination whatsoever. It is thus necessary to
address the purpose and the consequences of such failure.
[43] The object of cross -examination has been defined in these words6:
'It should be borne in mind that the objects of cross examination are three, the
first positive, and the other two negative. They are: to obtain evidence
favourable to your client, to weak n evidence that has been given against your
client, and finally, if nothing of value which is favourable can be obtained, to
weaken or destroy the value of the evidence by attacking the credibility of the
witness.'
[44] In Principles of Evidence (5th Edition) a Jutastat e -publication7, the following is
said.
5 2001(2) SACR 185 (SCA) para 30
6 Eric Morris: Technique in Litigation p134
'A party h as a duty to cross examine on aspects which he disputes. The
failure to cross examine may in appropriate cases have evidential
consequences in that an adverse inference may be drawn against that party.
The duty to cross examine on evidence that is disputed exists so that the
witness is afforded an opportunity to answer points supposedly unfavourable
to them. Generally the failure of the prosecutor to cross examine an accused
may be decisive and an acquittal will likely result.
[45] In S v Boesak8 the foll owing was said regarding cross -examination:
'[50] In the context of the dispute now under discussion, i.e. proof of the
authenticity of the letter of 30 March 1988, but also in the wider context of the
outcome of this appeal and the conduct of the defence in the trial court. it is
clear law that a cross -examiner should out his defence on each and every
aspect which he wishes to place in issue explicitly and unambiguously. to the
witness implicating his client. A criminal trial is not a game of catch -as-catch-
can. nor should it be turned into a forensic ambush.
[51] In this respect, we are in full agreement with the comments made by the
Constitutional Court in President of the Republic of South Africa and Others v
South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at 36 J -
37 E.
"[61] The institution of cross -examination not only constitutes a right , it also
imposes certain obligations. As a general rule it is essential, when it is
intended to suggest that a witness is not speaking the truth o n a particular
point, to direct the witness's attention to the fact by questions put in cross -
examination showing that the imputation is intended to be made and to afford
the witness an opportunity, while still in the witness -box, of giving any
explanation open to the witness and of defending his or her character. If a
point in dispute is left uncha llenged in cross -examination, the part y calling the
7 By PJ Schwikkard and TB Mosaka 5th ed, 2023, Ch 18, para 18.7 4
8 [2000 ] ZA.SCA 24 (12 May 2000) para 51 to 53
witness is entitled to assume that the unchallenged witness's testimony is
accepted as correct. (My emphasis)
[46] One of the goals of cross -examination by the state is to obtain favourable
facts, conces sions, inconsistencies or improbabilities. The importance of cross -
examination is evident in the judgment of S v van der Westhuizen9 where the
following was said:
'In our practice it is not the function of a prosecutor disinterestedly to place a
hotchpotc h of contradictory evidence before a court and then leave the court
to make of it what it wills. On the contrary, it is the obligation of a prosecutor
firmly but fairly and dispassionately to construct and present a case from what
appears to be credible ev idence, and to challenge the evidence of the
accused and other defense witnesses with a view to discrediting such
evidence, for the very purpose of obtaining a conviction . That is the essence
of a prosecutor's function in an adversarial system and it is n ot peculiar to
South Africa.'(my emphasis)
[47] The cross -examination of the accused was desultory in the extreme. No
thought went into it. The trial was set down for 9 days to deal with the evidence of
the defence. Accused 1 testified for a whole day, set ting out his defence. But the
cross -examination of accused 1 lasted less than a morning session. He was not
cross -examined on his denial with reference to the complainants' testimonies. No
attempt was made to elicit inconsistencies or improbabilities. His cross -examination
consisted of putting a very limited synopsis of the respective complainant's evidence
to him. Which evidence the accused denied. Then putting it to him that what they
testified about is correct. It is not that there had been little scope for cross -
examination, there was ample evidence that the veracity of his evidence could have
been tested against. The cross -examination was shallow and lacking the intention to
uncover the truth.
9 2011(2)SACR 28 (SCA) para 11.
[48] Similarly ineffectual and superficial was the cross -examination of accused 2
and 3 that amounted to no cross -examination at all. They did not deviate from their
respective versions or contradict themselves.
In the instant matter Mr. Dauberrmann is cor rect that the questions asked by the
prosecutors in the instant matter did not amount to cross -examination at all.
Evaluation
[49] In evaluating the evidence it is incumbent on me to assess the evidence of the
state and the accused to determine whether th e state had proved its case beyond
reasonable doubt. In doing so I must keep in mind that the evidence of single
witnesses must be approached with caution. Furthermore, it would be wrong to say
that I believe the complainants and therefore the accused's de fence must be rejected
as false.
[50] Where there are two mutually destructive versions before court the matter
must be approached as was set out in in National Employers' General Insurance Co
Ltd v Jagers10 where the court remarked as follows:
'It seems to me, with respect, that in any civil case, as in any criminal case,
the onus can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the onus rests. In a civil case the onus
is obviously not as heavy as i t is in a criminal case, but nevertheless where
the onus rests on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version is true and accurate and
therefore acceptable, and that the other version advanced by the defendant is
therefore false or mistaken and falls to be rejected. In deciding whether that
evidence is true or not the Court will weigh up and test the plaintiffs
allegations against the general probabilities. The estimate of the credibility of
a witness will therefore be inextricably bound up with a consideration of the
probabilities of the case and, if the balance of probabilities favours the plaintiff,
10 1984 (4) SA 437 (E)
then the Court will accept his version as being probably true. If however the
probabilities are evenly balanced in the sense that they do not favour the
plaintiffs case any more than they do the defendant's, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that his
evidence is true and that the defendant's version is false.
[51] There are certain problems with the evidence of the complainants. N o
corroborating evidence was presented for the complainant s' evidence. There must
have been witnesses with regard to the first reports they made which the state did
not call. First reports do not prove that the victim was raped or sexually assaulted,
but it does prove consistency and that it was not a recent fabr ication. There would
have been telephone records that could have corroborated the witnesses' evidence
that they had to call or text accused 1 daily. No such evidence was presented.
[52] If the evidence of the complainants is analysed, it cannot be ignore d that there
is proof that some of them deviated from their police statements. The possibility
cannot be ignored that Mr Ntelwa had a much bigger influence on the witnesses'
testimony, but the opportunity to test that had pass d, as his attempted influence only
came to the fore after they had testified so there was no opportunity to cross -
examine them on the possibility of interference.
[53] Ms J[...], whose testimony was found not to be credible, was the person who
indicated that she had laid a charge and that the police will contact the witnesses. It
seems it was after this that the investigation into the conduct of the accused
commenced.
[54] What casts a shadow over the evidence of the twins is that even after the
arrest of accused 1, the twins still p ublicly professed his innocence and danced in
front of television cameras to show their support for him. They were not minors at the
time.
[55] S[...] M[...] was 19 years old when she testified that she lied to accused 1 that
she was menstruating and was sent home. However, she returned to the mission
house despite knowing what would be expected of her.
[56] Mr Daubermannn is correct in his argument that it cannot be established what
the influence of Mr Ntelwa was on the evidence of the witnesses as the su ggestions
by Mr Ntelwa was not known at the time they testified.
[57] Mr Sesar, on behalf of the state, argued that I should accept the similar fact
evidence of the state witnesses. In S v Nduna11 the following was said:
"[17] It is settled law that whils t similar fact evidence is admissible to prove the
identity of an accused person as the perpetrator of an offence, it cannot be
used to prove the commission of the crime itself. This legal principle operates,
in addition, to exclude such similar fact evide nce from being confirmatory
material on another count.
[18] However, the application of the rule is not to be confused with the
situation where the rule is invoked to establish the cogency of the evidence of
a systematic course of wrongful conduct in order to render it more probable
that the offender committed each of the offences charged in respect of such
conduct ( S v Gokool 1965 (3) 465 NPD at 475A -D). The appellant's argument,
if it were to be accepted, would be tantamount to excluding evidence of the
modus operandi of the appellant merely because he had be en charged with
more than one count of robbery.'
[58] Witnesses in the instant matter were in contact with each other and discussed
the case before charges were laid, but it was not disclosed to what extent. There is
the additional problem in this case that there had been a WhatsApp group where all
the complainants were part of; Ms Z[...] took the lead in complaining about the
appointment of advocate Cerfontein as the prosecutor in the matter and proposing
that Mr Ntelwa remains. Furth ermore, Mr Ntelwa was the prosecutor who indicated
that witnesses should be influenced to stick to their police statements. This case can
be distinguished from the Nduna -matter where there were 2 robberies months apart
11 [2010] ZASCA 120
with a similar modus operandi. The si milar fact evidence cannot be taken into
account in the instant matter in light of the fair trial principle.12
[59] The primary factor, unfortunately, is the lack of cross -examination of the
accused. As indicated earlier, if there is no cross -examination o n issues in dispute, it
would be unfair to reject an accused's evidence if he or she has not had the
opportunity to explain such issue. As the cross -examination of the accused was of
such poor quality it had the effect that the accused's evidence was not p laced in
dispute at all and therefore it did not necessitate the calling of corroborative
witnesses who might have bolstered their defence.
[60] A further factor that I have to take into account is the conduct of Mr Ntelwa
and the irregularities that his c onduct precipitated. If he had been removed at the
time the prosecuting authority intended to remove him, the outcome might have been
different. Furthermore, I am of the view that it is highly undesireable that a
complainant can dictate who should prosecut e in a trial, especially where a decision
has been made to remove a prosecutor.
[61] In the instant matter there are two mutually destructive versions. On the one
hand the evidence of the state witnesses of what had happened in the bedroom of
accused 1 an d on the other hand, the denial of accused 1 as to what had transpired
in his bedroom.
[62] I am of the view that although there are aspects of the complainants' evidence
that are unsatisfactory, I cannot find that their evidence is incredible. However, I
cannot find that the evidence of the accused falls to be rejected as false either. This
is especially so as the accused's evidence was not really placed in dispute through
proper cross -examination. When d eciding whether the state has proved its case
beyond reasonable doubt, this matter falls in the category where, in my view, the
explanations of the accused are improbable and I don't subjectively believe them.
However, due to the uncertainty of the effect of the actions of Mr Ntelwa and the lack
of proper cross -examination, I cannot find that the accused's versions are so
12 Ferreira NO 1996(1) SA 894 (CC) para 153.
improbable that they cannot reasonable possible be true. The accused bore no onus
to convince the court of their innocence.
[63] I am of the view, in the light of all the circumstances of the case that the state
has not proved its case beyond reasonable doubt. The accused are found not guilty
and are discharged on all the charges.
Irma Schoeman
Judge of the High Court