The Pretoria High Court on Tuesday reserved judgement in an application by Judge Nkola John Motata to stop the state from playing five potentially incriminating video and audio recordings made at the scene of his car accident in January 2007.
Motata was charged with drunk driving and defeating the ends of justice after smashing his Jaguar into the wall of a Hurlingham, Johannesburg property. He denied guilt in the Johannesburg Magistrate’s Court, where his trial was due to resume in July.
The disputed recordings were made by the property’s owner, businessman Richard Baird, on an I-Mate cellphone, which he claimed was now broken.
Judge Motata asked the court to set aside a ruling by Magistrate Desmond Naire that the recordings ”allegedly taken by Mr Baird at the scene of the crime” could be played in court during a trial-within-a-trial to test their admissibility.
He also asked the court to order the magistrate to continue with the trial-within-a-trial without the recordings being played and to interdict him from proceeding with the trial pending the outcome of the review application.
Motata’s lawyer BR Tokota, SC, said the defence was challenging the admissibility on the grounds of a ”lack of originality and authenticity”.
This was after it became clear that the cellphone was allegedly broken and a digital camera had allegedly been stolen.
He argued that the magistrate’s ruling had been ”grossly irregular” and that Motata would be severely prejudiced and denied a fair trial if the recordings were played before a ruling had been made on their admissibility.
Tokota said it was tantamount to the trial court reading the content of a confession of which the admissibility was contested prior to the determination if it was admissible.
Director of Public Prosecutions lawyer ZJ van Zyl, SC, argued that evidence contained in the video recordings was highly relevant to the decision regarding its admissibility.
”To preclude the state from playing same during the trial-within-a-trial will, with respect … require the state to present its case with a sock in the mouth,” he said.
Van Zyl submitted that the application was ”an ill-advised attempt to prescribe to the state how to go about proving its case” and an attempt to prevent relevant evidence from being presented to the trial court.
Judgment in the matter was expected next week. – Sapa