/ 7 November 2007

Court to hear Motata recordings

Audio recordings of Pretoria High Court Judge Nkola Motata's alleged drunken ranting following a car accident earlier this year will be heard in court in a bid to determine if they are reliable enough to be submitted as evidence, the Johannesburg Magistrate's Court ruled on Wednesday.

Audio recordings of Pretoria High Court Judge Nkola Motata’s alleged drunken ranting following a car accident earlier this year will be heard in court in a bid to determine if they are reliable enough to be submitted as evidence, the Johannesburg Magistrate’s Court ruled on Wednesday.

”I will not be saying that this is now the evidence against the accused, but I will be working towards determining if this is admissible … only then is it worth anything,” said magistrate Desmond Nair.

Nair’s ruling came after both the state and the defence began arguments for and against the admissibility of the recordings as evidence in court — a trial within a trial.

The defence argued that the digital nature of the recordings, and the fact that the original recording was lost when the cellphone it was made on broke, compromised the integrity of the evidence.

”This is not a question of identifying the data, but a question of deciding whether the data is reliable and whether its integrity is such that the court can submit it into evidence.”

Dorfling also said the media attention meant if the recordings were played in open court, Motata could face prejudice.

”Once it is played in open court, it is open to the public domain … it can be utilised in the public domain and published in the public domain … this trial is to become one of trial by media.”

‘Sock in mouth’

Prosecutor Zaais van Zyl told the court: ”If we can’t lead these witnesses and these recordings can’t be played, with the greatest respect it will be tantamount to stuffing a sock in the state’s mouth.”

He added: ”There seems to be a total acceptance that the authenticity of these recordings need to be established … the only way we can do it is by playing the recordings.”

Van Zyl said the state also wished to submit a transcript of the recordings to the court and call on witnesses to corroborate the accuracy of the recordings. ”It is not often available that the court has evidence that can put you in the scene.”

He said the court should not consider digital recordings as inherently more fallible as analog ones. ”This is the reality of now, and the reality of now calls for this kind of evidence to be heard and then decided upon … if it is to be accepted.”

Van Zyl said there is a risk attached with any kind of evidence. ”There will always be a risk, whether it is a witness or other kinds of evidence … the court needs to put this in the whole pot to decide, ‘Well, this is reliable. I can rely on this or not.’

”We can’t allow that developments in technology can stultify court evidence. Certainly the legal process should go forward — one must look at the community belief in the legal process.”

The recordings, with sound but no pictures, were saved on a storage card in a cellphone and on to a laptop computer. They were made by state witness Richard Baird. He is the owner of the home into which Motata reportedly drove his Jaguar on January 6.

‘Aggressive ranting’

Earlier, Baird, a fish farmer, told the court he had not edited the recordings. ”I don’t have the software, I don’t have the time and I don’t have the inclination to do it,” he said.

He said he had begun to make recordings of Motata at the accident scene after his ”aggressive ranting” made Baird feel the situation had ”got to a stage where I was incredibly uncomfortable”.

Baird — armed with his own sweat towel and a litre of water — spent the morning in the witness stand detailing all the technology used to make the recordings.

Motata is facing charges of driving under the influence of alcohol, with an alternative charge of reckless or negligent driving and a charge of defeating the ends of justice with an alternative charge of resisting arrest.

Nair’s left eyebrow seemed frozen in an arched quizzical look as he heard defence and state submissions.

In his ruling he said he had agreed to hold a trial within a trial to ensure the accused’s right to a fair trial was protected. However, he had never intended to preclude the state from showing the recordings in order for the court to test their weight and reliability, said Nair.

Earlier, the magistrate had trouble proceeding with the case because of what he said were noise interruptions, including the sound of cleaners throwing water and someone singing in the corridor.

Flanked by his family and dressed in a dark grey suit, Motata took copious notes and some smoke breaks during Wednesday’s proceedings. — Sapa