Simon Nare

Simon Nare

As with the first, the second day in the Pretoria Judge Nkola Motata's drunken driving case was not without drama in the Johannesburg magistrate's court.

Now crucial evidence in the judge's case is lost.

On Wednesday the court heard of how the judge staggered and groped like a blind man as he tried to find his balance because he was sloshed.

But yesterday the court heard that the note written by Motata on the scene, which the state alleges was not repetitive and was without misspellings, cannot be found.

Key witness Richard James Baird told the court he misplaced the note in his Mpumalanga farm and searched for it for two months but could not find it.

"I could have easily missed it due to time constraints. It is difficult to dedicate long hours to search for a piece of paper."

Prosecutor Advocate Zaais van Zyl presented a duplicate which he argued should be admissible.

Defence Advocate Danie Dorfling said the state should prove that a thorough search was conducted for the original and failing that, it should not be admissible.

When asked by Magistrate Desmond Nair whether there had been a thorough search, Van Zyl admitted that a better search could have been conducted.

Nair ruled that the duplicate will not be admissible.

Then the court heard that the cellphone, with which Baird recorded a conversation and video footage of the inebriated lawman, is broken.

The memory card he used in the recordings has been stolen together with a digital camera he used to take pictures.

Van Zyl shocked the courtroom when he admitted that he only learnt a day before that the phone had been broken and that the witness was not sure if the memory card in his possession contained the information. His new phone was not compatible with the said memory card.

The court had to adjourn for an hour as the prosecution waited for Baird's lawyer to deliver a compatible phone.

It turned out it was the wrong memory card. But the prosecution said the video clippings had been downloaded on to Baird's laptop.

However, the the clippings did not have images, only audio.

Dorfling lashed out at the prosecution for not securing the original note, cellphone and the memory card.

"We come to hear this morning that the primary evidence cannot be found. Now we have to rely on secondary evidence. The state should have kept that evidence," he said.

Van Zyl argued: "Things get stolen, things get broken. In the first trial the primary evidence was available but now its lost."

He argued that the audio should be played and, if needs be, its admissibility should be argued later. Dorfling objected to the hearing of the audio, saying they had not had enough time to consult an expert. He admitted that a CD had been provided to the defence in July but was under the impression that the prosecution had original not secondary evidence. He asked for a postponement until Monday to give him time to consult an expert on the auditory evidence.

Nair declined the request, saying he can only give Dorfling until 9.30am today to deal with legal issues on presentations of an electronic nature.

The trial continues.