The state witness in the rape and human trafficking trial of controversial Nigerian pastor, Timothy Omotoso, had erred by choosing to testify in open court.
That was the contention of Advocate Terry Price, who argued two applications for leave to appeal in the Port Elizabeth High Court on Thursday, on behalf of Omotoso and co-accused, Lusanda Sulani and Zukiswa Sitho.
The one application related to Judge Mandela Makaula's rejection of an application to quash the charges against the accused.
The other application related to the judge's perceived bias towards 22-year-old Cheryl Zondi, who provided harrowing testimony about her alleged rape by Omotoso.
She faced a grilling over three days from defence attorney, Peter Daubermann, who was, at one point, admonished by the judge for his questioning about how far Omotoso had allegedly penetrated her.
This sparked widespread public anger and complaints to legal authorities.
In his argument Price conceded that Daubermann's questioning of the witness "may not have been done in the best way possible", but he said it was necessary.
"It's all about penetration, to determine in fact whether your lordship at the end of the day can find attempted rape or in fact rape. So it was a very necessary question, perhaps a little crassly asked but it was a very important question," Price said.
"Sadly my lord I think she was wrong. It was her choice to testify in open court. I think she should have testified in camera".
Turning to the defence's claim that the charge sheet drawn up by the State was "defective" and did not contain precise details related to the allegations by 21 witnesses against Omotoso, Price said, "we need to hear what the Supreme Court of Appeal might say on the matter".
State advocate, Nceba Ntelwa, citing precedent, said the defence had failed to show bias adding that no other court will find in their favour. He said the defence's contentions "were weak".
The matter was postponed to next Tuesday for judgment.
