Pretoria High Court Judge Nkola Motata will be ”severely prejudiced” should magistrate Desmond Nair fail to allow a trial within a trial to decide on the admissibility of evidence.
Motata’s defence team continued its offensive on Tuesday afternoon in a bid to prevent five video recordings from being heard by the Johannesburg Magistrate’s Court.
They are arguing for a trial within a trial in order to test the authenticity and originality of the video recording taken by Richard Baird, the state’s first witness.
Defence attorney Danie Dorfling said common law on the matter only existed prior to the advent of the Constitution.
Dorfling said the court had an obligation to deviate from common law in this case as it was in conflict with the accused’s constitutional right to a fair trial.
”The court has an obligation to deviate from common law where it is in conflict with the Constitution, even more so if it is in conflict with a fundamental right contained in the Bill of Rights, ie in this case it is Motata’s [right to a fair trial].”
Nair said that the magistrate’s court however did not have the authority to set new precedents.
However 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 for the accused, Motata, to approach the High Court who 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”.
Nair adjourned for lunch and to give state prosecutor Zaais van Zyl time to prepare a counter argument to Motata’s defence.
Court resumes at 1.45 pm. – Sapa