The drunken-driving case of Judge Nkola Motata was on Thursday postponed to allow magistrate Desmond Nair to rule on whether the defence could submit a request for a high court review of one of his rulings.
The ruling in question allowed the court to listen to five audio recordings of Motata’s alleged drunken diatribes — following a car accident earlier this year — as part of a trial within a trial to determine these recordings’ admissibility as evidence.
The court was meant to hear the recordings on Thursday morning. However, before this could happen, the defence said it was bringing an application to have a high court review Nair’s ruling that the recordings could be viewed.
Defence advocate Danie Dorfling said if the court refused the application, the defence would bring an urgent application to stop all proceedings at the court until a review was completed.
”If you now refuse a postponement, a postponement will be forced upon the court,” said Dorfling.
He said if the postponement requested was turned down, ”the instruction is that we will be seeking an urgent application to stop proceedings until the review is completed”.
Dorfling said it was not the task of the magistrate’s court to determine the merits of the review, only of the need to have a postponement of proceedings that would make it possible.
”What the applicant is seeking is an opportunity to have the argument made. It is for the review court to determine whether the argument has been made.”
He said Motata’s whole constitutional right to a fair trial was at stake when it came to the ruling of whether the recordings could be played to determine their admissablity. ”The mere decision is not a big moment for now. It will become a decision of a big moment because of the consequences that come from it. It has potential harm that goes way beyond this juncture.”
Obstructive
Prosecutor Zaais van Zyl said the application for a high court review was being brought at the wrong time and was obstructive to the case. He said he would be asking for costs — ”this is how bad I feel this application will be”.
”What is happening here is that they are already klaar met die witbrood onder die arm [going around with the white bread under their arm] — they are in a wonderful position, but you still complain. You ask for a trial within a trial and you get it, and now they are not happy being in a trial within a trial.
”We are in a beginning phase [of the court case]. We don’t even know if the court will admit the evidence. If the court does not admit the evidence, the accused will suffer no prejudice at all.”
Yet Van Zyl said he would not oppose the application because he knew the defence would simply bring on more applications that would delay proceedings. ”My view is that a refusal will just lead to further other actions … we will simply not get any further.”
On January 6, Motata crashed his Jaguar into the house of Richard Baird, now a state witness.
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.
Court has been postponed until next Tuesday for the ruling. — Sapa