File
Everything has been swept under the carpet, and this court will never know to what extent the case was tainted due to his conduct.
These were the assertions of defence attorney Peter Daubermann in the Gqeberha High Court on Tuesday, during the protracted rape and human trafficking trial against Nigerian Pastor Timothy Omotoso and his co-accused.
He, and co-accused, Zukiswa Sitho, and Lusanda Sulani are facing more than 30 criminal counts, that include rape and sexual assault.
When the case resumed, Judge Irma Schoeman heard a defence application to have special entries made into the court record.
These pertain to alleged irregularities and illegalities by the state.
Daubermann is of the view that the former state advocate, Nceba Ntelwa “suborned” certain witnesses to commit perjury.
He referred to numerous e-mails between Ntelwa and his junior, Advocate Ishmet Cerfontein, relating to the alleged perjury about the evidence of a witness called "Jiyane."
In court papers, Daubermann said Ntelwa, Cerfontein, the Deputy Director of Public Prosecutions, Indra Goberban, and four other advocates embroiled in the matter should have been called to testify in court under oath and subjected to cross-examination.
"I am of the respectful opinion that you (Schoeman) committed a procedural irregularity when you failed to call the prosecutors to testify.
"Now we will never know whether he suborned Jiyane and other witnesses to do the same."
When Schoeman asked Daubermann whether Ntelwa's conduct relating to Jiyane was a "moot point," he vehemently disagreed.
He told Schoeman that the court had already rejected Jiyani's evidence and that she was only required to decide whether the alleged subornation happened or not.
"That is something that this court would need to investigate.
"You cannot dismiss the application for special entry just because you decided it's a moot point.
"I submit that on the facts before this court, it has already been established what Ntelwa did," Daubermann argued.
He was adamant that considering Ntelwa's conduct (allegations of perjury, opening a WhatsApp group in which he communicated with all of the state witnesses) it was "wholly improper" that his superiors allowed him to prosecute the case.
Advocate Gerhardt Wolmerans, who opposed the application on behalf of the state, said to infer that the prosecuting team attempted to mislead the court was far-fetched.
He also said the allegations surrounding the suborning of witnesses had been dealt with extensively during a 174 Application by the defence.
"There is thus no reason for the Judge to further investigate.
"To date, this court has not been able to establish as fact that Ntelwa indeed suborned her (Jiyani) to commit perjury, despite extensive evidence led to that effect in court.
The state believes that there were no irregularities on the part of the presiding Judge, Irma Schoeman.
Wolmerans asked the court to bear in mind that Jiyane might not have been aware of the legal jargon about the Sexual Offences Act.
Schoeman will deliver her judgment on 13 February.
