Will or won’t she? Cheryl Zondi may brave the witness stand all over again
State's star witness against pastor Timothy Omotoso is struggling with the idea of retestifying from scratch
The star state witness in the Timothy Omotoso trial, Cheryl Zondi, decides this week if she wants to continue with the case or walk away following news that the trial will now have to start afresh.
This, after the presiding judge in the case, Mandela Makaula, officially recused himself on Friday because of his concerns over perceptions of bias because his wife owns a guesthouse where state witnesses were accommodated.
Speaking to The Weekend Post on behalf of Zondi, deputy chair of the Cheryl Zondi Foundation Thoko Mkhwanazi-Xaluva said they were still in talks with her and that they will hold a press conference on Tuesday once Zondi has made her decision.
“It is a terrible situation for [Zondi] – she has been through unbelievable trauma. One can imagine the experience will be intensified [if she testifies again],” Mkhwanazi-Xaluva said.
Zondi was struggling with the idea of having to take the witness stand again, said Mkhwanazi-Xaluva, who added it was up to Zondi to decide if she would continue with the case or walk away.
“We are working with her and supporting her,” Mkhwanazi-Xaluva said.
Zondi, who turned 23 last week, spent nearly two weeks on the witness stand under harsh cross-examination by defence attorney Peter Daubermann for alleged sex pest pastor Omotoso and his two co-accused.
Shortly after returning to Gauteng to complete her exams following her testimony, Zondi founded the Cheryl Zondi Foundation with the aim of helping other victims of sexual assault.
On Friday, Makaula presented reasons for his decision to recuse himself, which he emphasised was his own decision and made out of his own free will.
“I make this decision out of my own free will because I can foresee there could be perceived bias in the future,” Makaula said.
The judge was referring to earlier media reports that he was a shareholder in a company that owned a guesthouse where state witnesses stayed during the trial, which started in October 2018.
Makaula said his decision to recuse himself was “in the interest of justice” and he had done so even though he did not own any shares, or have any role in the guesthouse.
Makaula maintained he had declared the business interests of his wife to his employer, and added she was a sole director of a close corporation that managed a guesthouse. “I must place it on record that I am not involved [in my wife’s business] either as a director or shareholder,” Makaula said.
The judge stressed there was no application brought by the defence to recuse himself based on the fact that his wife owned the guesthouse, but that it was in his view the appropriate thing to do.
After Makaula excused Zondi from the witness stand in October 2018, Daubermann brought an application for him to recuse himself, claiming he was biased and had already decided on a verdict, among other claims.
Makaula dismissed the application and the subsequent application for leave to appeal his decision.
This led the defence to approach the Supreme Court of Appeal in Bloemfontein for the charges against Omotoso and his co-accused to be quashed.
The application was also dismissed, and the matter is now with the Constitutional Court.
National Prosecuting Authority spokesperson Tsepo Ndwalaza confirmed the trial would start afresh with a new judge appointed to preside over the matter.
“This means that Cheryl Zondi will have to testify from scratch,” Ndwalaza said.
He was unable to confirm which judge would take over the case.
After Makaula gave his reasons for his recusal, Eastern Cape judge president Selby Mbenenge addressed the court on a way forward.
Three specific issues were dealt with, including when the trial would start again, the media’s coverage and whether or not either the defence or state would bring any applications.
Daubermann indicated to the court he would bring an application regarding the charge sheet after state prosecutor Nceba Ntelwa said he would use the same charge sheet as before.
Daubermann did not specify what application he would bring.
He also addressed the court regarding the live broadcast of the trial, saying in most criminal cases witnesses were not permitted to attend court proceedings while other witnesses testified.
Daubermann said at the onset of the trial, Makaula had approved the live broadcast, to which neither the state nor the defence had objected.
However, Daubermann said he and his clients would request that the case not be broadcast live the next time around.
“I am not trying to muzzle the media at all, but [I] will object to the trial being televised live,” Daubermann said.
Mbenenge said if the media intended to broadcast the trial live, an application would have to be brought in advance.
The new trial will now start on July 30.
Omotoso, 60, and his co-accused, Zukiswa Sitho, 28, and Lusanda Sulani, 36, face a total of 97 charges against them, including rape and human trafficking.
None of the three entered pleas at the beginning of the trial in October, prompting Makaula to enter pleas of not guilty on their behalf.