The lawyer representing Nigerian televangelist Timothy Omotoso and his two co-accused, Lusanda Sulani and Zukiswa Sitho, has issued Judge Irma Schoeman with an ultimatum - either she allows for a trial within a trial or he will abandon his cross-examination of the first witness.
Peter Daubermann brought the trial, in which the three accused face rape and human trafficking charges in the Eastern Cape High Court in Port Elizabeth, to an unexpected halt on Wednesday morning as he questioned the credibility of the State's first witness, Andisiwe Dike.
During his cross-examination, which lasted about 90 minutes, Daubermann said there were inconsistencies in her statements. He scrutinised her written statement and compared it to her testimony in court over the past two days.
When Daubermann probed a statement that Dike had made on January 25 to a detective, she corrected the errors in the statement, eliminating the parts she said she never made or were not properly presented.
He then requested an adjournment to consult with the detective, Captain Brenda Magwangqana, who had taken the statement.
The statement is in dispute because Dike denied she had made some of the allegations in the document.
Judge Schoeman, however, told Daubermann: "This is not a matter you can appeal. An appeal can only be done at the end of the trial."
Daubermann argued Dike had denied making parts of the statement.
”Cross-examination cannot be based on statements that are denied."
He said he could not continue with the cross-examination if the matter was not resolved.
"You can stand her down until some other time in the future, when she is called again."
Daubermann said Dike's evidence was not admissible in evidence for the purposes of cross-examination "till further time when I can prove it".
"This is why I seek an opportunity to prove that the captain didn't write the statement correctly," he argued. "This is why I am asking for a trial within a trial."
Daubermann told Judge Schoeman she could not force him to continue.
"Your ladyship cannot force me to continue with the cross-examination. I'm entitled to my consultation, because it could affect the rest of the trial. I request your ladyship to grant me a trial within a trial."
State Advocate Nceba Ntelwa, in response, said Magwangqana was a State witness in a State case.
Ntelwa added if a witness denied part of the statement made, or any part thereof put to them, then the person who took the statement could be called for further clarity.
However, she said in this case, calling the detective might jeopardise the State's case.
"There is no need for a trial within a trial, calling the captain at this stage will jeopardise many other aspects of the case," Ntelwa argued.
"There are many other aspects of the investigation that will be affected by the defence's consultation with the witness."
In response to the arguments, Judge Schoeman told Daubermann the credibility of a witness and the admissibility of her evidence in court were two different matters.
"Credibility is decided at the end of the case, with admissibility being decided through a trial within a trial," she stated.
Judge Schoeman then delivered her judgment in rejection of Daubermann's request for a trial within a trial.
After a brief adjournment to allow the State a telephonic consultation with Magwangqana, Ntelwa confirmed she would be available to come to court on Monday to give testimony.
Magwangqana has since been deployed to the Northern Cape but was currently attending a course in Namibia, the court heard.
"She will be back on Friday from the course and will appear before the court on Monday," Ntelwa said.
The case has been postponed to Monday.