Justice and Constitutional Development Minister Mmamoloko Kubayi has formally invoked Section 33(a) of the National Prosecuting Authority (NPA) Act in response to the Gqeberha High Court's acquittal of Timothy Omotoso and his co-accused, Lusanda Sulani and Zukiswa Sitho.
The trio walked free after being found not guilty of 32 serious charges, including rape, racketeering, and human trafficking, a decision that has sent shockwaves through the nation already grappling with a crisis of gender-based violence (GBV).
On 2 April 2024, Judge Irma Schoeman delivered a scathing judgement, highlighting the prosecution's failures in presenting a robust case against the defendants. She pointed out the "shallow" cross-examination tactics used by the state, describing them as lacking the vital intention to uncover the truth. As a result, the court concluded that the prosecution had not met the burden of proof required for conviction, leading to what many are now calling a "miscarriage of justice."
The minister has responded by requesting a comprehensive report from the National Director of Public Prosecutions to ascertain the factors contributing to the court's decision. She has reaffirmed her commitment to combating GBV and femicide and stressed the importance of holding perpetrators accountable. "The minister's concern stems from the apparent shortcomings in the prosecution's approach, which resulted in a significant setback for justice for victims of gender-based violence," stated her department.
Set against a backdrop of ongoing trials and tribulations, the case's prolonged legal journey, initially marked by the trio's arrest in April 2017, saw numerous delays and obstacles that ultimately affected witness participation and the integrity of the trial. The NPA noted that several witnesses had grown disillusioned, choosing not to relive their painful experiences in court, which led to a reduction in the charges from an initial 63.
It said that while it does not advocate for convictions at all costs, it remains steadfast in its commitment to pursuing justice for victims. "We will explore all possible legal avenues," stated Luxolo Tyali, NPA regional spokesperson for the Eastern Cape Division. The NPA said it will study the judgement and decide which legal avenues to explore.
Impact on GBV survivors and activists
The Not in my Name movement described how the acquittal of Omotoso has understandably sparked strong emotions, particularly given South Africa's urgent struggle with gender-based violence (GBV). "The frustration and anger expressed by survivors and activists are valid. GBV remains a pervasive crisis in South Africa, with high rates of violence against women and children. A high-profile verdict perceived as unjust feels like betrayal, discouraging survivors from coming forward and undermining trust in the legal system," it said statement.
The organisation said while the verdict may feel like a "miscarriage of justice," legal outcomes hinge on evidence, procedural rigor, and the burden of proof (beyond reasonable doubt). "The failure of this case rests at the door of an incompetent prosecution team, who failed to present a compelling case to Court. The sitting judge was scathing in her remarks and said that the previous prosecutors acted improperly and did not sufficiently cross-examine the accused, leading to the case collapsing.
"An acquittal does not necessarily equate to innocence but may reflect insufficient admissible evidence or procedural challenges. This distinction is painful but underscores systemic gaps in supporting survivors through investigations and trials."
According to Not in my Name, setbacks like this underscore the need for sustained efforts and strengthening of institutions. "We need to advocate for specialised sexual offences courts, survivor-centred policies, and training for legal/medical personnel. Push for stricter enforcement of laws like the Sexual Offences Act and combat victim-blaming narratives. While this verdict is disheartening, it is one chapter in a larger movement. Persistence in advocacy, education, and legal reform remains vital to ensuring future accountability."
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