“We are proceeding with an application to the Constitutional Court for leave to appeal,” advocate Peter Daubermann said in a text message to News24 on Tuesday.
This after the SCA found that Daubermann’s application to have Judge Mandela Makaula recuse himself had “no reasonable prospect of success”.
Omotoso and one of his co-accused, Lusanda Sulani, lodged the applications shortly after the State’s first witness, Cheryl Zondi, gave emotional testimony in the rape-accused pastor’s case.
The pair, as well as Zukiswa Sitho, face 63 charges and 34 alternative charges, which include rape and sexual assault.
Zondi filed for a leave of absence from the trial so that she could write her exams earlier in October.
In the recusal application, Omotoso’s defence team argued that Makaula was “too friendly” with Zondi and that it was believed that he would not be impartial.
But Makaula rejected their assertions and their recusal application, labelling it “ridiculous” and “dubious”.
The matter was taken to the SCA and that court delivered its decision this week.
The SCA also rejected an application to have the charges against Omotoso quashed.
The trial was expected to resume on 4 February, 2019.
‘Over the moon’
Earlier on Tuesday, Prosecutor Nceba Ntelwa said they were “over the moon” with the SCA’s decision, and added that they were ready to proceed.
“I could not sleep last night with excitement after receiving the order,” Ntelwa said.
“When we resume with the trial in February, we will up the game.”
Omotoso will spend his second Christmas behind bars having been denied bail since his arrest in April 2017. His two co-accused are still out on bail.