A witness, referred to as Mrs X, in the drunken driving case against Judge Nkola Motata was barred for the second time from testifying in the Johannesburg Magistrate’s Court on Monday.
Prosecutor Zaais van Zyl told the court he wished to renew his application to call the witness Mrs X to court, after Superintendent Maxi Ryan gave testimony on the difficulty of getting hold of witnesses.
Mrs X is the witness who was barred from testifying in this case last year November.
She was only brought to the attention of the court after making her statement on October 13 2008 regarding events of the night Motata crashed his Jaguar into a wall of a Hurlingham property.
Magistrate Desmond Nair said at the time of the first request for Mrs X to take the stand, that calling her would prejudice Motata and infringe his rights to a fair trial.
On Monday, Van Zyl said there would not be any surprises or changes in the case against Motata if the witness testified, as Mrs X would only give further particulars on what other witnesses had told the court.
Defence counsel advocate Danie Dorfling opposed the application, saying it was on the same basis as the first application that was refused.
Earlier on Monday, the defence and state clashed on whether Ryan herself should be allowed to testify.
Ryan, from Parkview police station, is the officer who finally managed to get a statement from Mrs X after several failed attempts by the state.
Dorfling objected to her taking the stand, saying the state was calling Ryan so that it could use her evidence to renew its last year’s application to call Mrs X.
”As I have spoken to my learned friend from the state … he wants to bring this witness to testify in court so that the witness can motivate why Mrs X should be allowed to testify.”
He said Ryan would only tell the court how difficult it was obtaining a statement from Mrs X.
Nair ruled that Ryan should be allowed to testify, ”but not at all for the purpose of the state to motivate for the application it wants to bring — re-visiting the ruling made last year regarding Mrs X.”
Ryan took the stand and told the court that she had tremendous difficulty in dealing with witnesses in this case.
She said the owner of the property had initially refused to hand over the cellphone recording that he had of the accused, and that the other witness did not want to come to court saying he feared for his life.
”At first, I couldn’t even get the police officers who were on the scene on the night of the incident. I drafted a letter to their department, requesting their names, but there was no record of them,” Ryan said.
She was also told of two gardeners from a house next to the one where the incident had occurred, but she could not get hold of them. She later got hold of their cellphone numbers, but they both indicated that they were not interested in testifying in court because they were too busy.
”We [police] were also told of a security guard who was on the scene at the time of the incident, but nobody could identify him.”
Ryan told the court that she had made five attempts to get Mrs Xs’ address, but failed. She later met with her twice in 2008, but Mrs X refused to give a statement or testify.
”We had another meeting with her again on October 12 2008. She indicated that she was willing to give us a statement but on condition that if she goes to court she will be allowed to testify in camera.”
Ryan contradicted herself during cross-examination, when she said Mrs X’s evidence was important because she was the second person on the scene.
She later said Mrs X could have been the fourth person on the scene, after Dorfling pointed out that Mrs X came to the scene after at least one metro police car had arrived.
Asked why the police did not subpoena Mrs X when she was refusing to cooperate, Ryan said: ”We had agreed that we would accommodate her before forcing her to testify.”
Despite Ryan’s detailing of her difficulty in getting hold of witnesses like Mrs X, Nair turned down the state’s second request for her to take the stand.
Van Zyl said he would be bringing written arguments about the Mrs X issue to court on Tuesday. — Sapa