Pretoria High Court Judge Nkola Motata’s drunken-driving trial has been postponed for the court to rule on the defence’s application for a trial within a trial on admissibility of evidence.
Magistrate Desmond Nair will give his decision when the trial resumes at the end of October.
Nair postponed the case at the Johannesburg Magistrate’s Court on Tuesday after hearing arguments from the state and the defence on whether a trial within a trial could finally resolve questions surrounding evidence presented during the first three days of the trial.
The evidence in question consists of five video recordings, with sound but no visuals, taken by the state’s first witness, Richard Baird — the owner of the home Motata tail-ended his Jaguar into on January 6.
Motata is facing charges of driving under the influence of alcohol or drugs with an alternative charge of reckless and negligent driving, and a charge of defeating the ends of justice with an alternative charge of resisting arrest.
Motata’s defence team continued its bid on Tuesday afternoon to prevent the recordings from being heard by the court.
Danie Dorfling for the defence argued for a trial within a trial in order to deal with the issue of originality and authenticity of the recordings, before they could be heard by the court.
The state, led by prosecutor Zaais Van Zyl SC, wanted the court to hear the recordings ”provisionally”, saying that a decision on the ”authenticity and evidentiary weight” should be decided upon at the end of the trial.
Dorfling said video recordings were ”more prone to be contaminated” as opposed to a witness, that they may be rearranged and that they were ”open to manipulation which was difficult to detect”.
”… the world of video recording can be a world of illusion …”, he told the court.
In his rebuttal after lunch, Van Zyl said there would always be a risk of falsehood.
”There will always be a risk of falsehood, false evidence … whenever a witness steps into the witness box there is such a risk; that risk is nullified by cross-examination,” he said.
The defence argued that common law dealing with the authenticity and originality of the recordings dated back to before the advent of the Constitution.
”What was previously good enough must be tested against the yardstick of the Constitution … whatever happens in this trial must comply with that yardstick,” Dorfling said.
Motata, urged the defence, had a constitutionally enshrined right to a fair trial. Built into this, was his right to ”reduce and challenge evidence”.
”The accused would be denied a fair trial [if the recordings are heard provisionally], because to oppose evidence is his right if he wants to take issues with the originality and authenticity of the evidence prior to it being submitted,” Dorfling said.
Failing to allow a trial within a trial to test the evidence would be a ”severe prejudice” to Motata and ”impacts fundamentally on his right to a fair trial”.
‘It is his choice how to use it’
Dorfling argued that the conflict between the prejudice Motata may suffer should the trial within a trial not be granted outweighed common law in this regard.
He further argued that should Nair not agree with this he should adjourn the proceedings in order that Motata may approach the high court, which had the authority to deal with the matter.
”We therefore submit that Your Worship adjourn proceedings for the accused to approach the high court, which will have the authority to decide on this matter”.
Van Zyl argued that Motata’s right to challenge the evidence was not being attacked.
”That right is not attacked at all … if we go through an ordinary trial he will certainly have that right and it is his choice how to use it,” he said.
Van Zyl strongly opposed the defence’s request for a trial within a trial, saying it would be a ”total waste of time”.
”It would appear that it is conceded that the evidence at stake in this matter is real evidence; if that is accepted, the question is simply: Is the evidence relevant?” he said.
He said there was no need for a trial within a trial and that the evidence should be weighed along with all the other evidence at the end of the trial.
It was also not necessary to take the matter to the high court as the common law in place already sufficiently dealt with the matter.
The common law in place did not in any way conflict with Motata’s right to a fair trial.
”The mere potential for an infringement is no reason to embark on another route than that set out [in current common law],” he said.
Nair postponed the case to October 25 when he will pronounce on the matter.
Motata, dressed in a navy blue suit, once again appeared in court accompanied by his family. His bail, which was granted earlier this year, was extended. — Sapa