NORTH Gauteng high court Judge Nkola Motata's decision not to testify in his defence on a drunken driving case will put him at risk, the Johannesburg magistrate's court heard yesterday.
"What has been said on his behalf carries away," said state prosecutor Zaais van Zyl.
He said there was no explanation why Motata, pictured, stammered, swore and smelt of alcohol.
Motata's drunken driving and defeating the ends of justice charges arose from an incident in which he allegedly crashed his vehicle into the wall of Richard Baird's home in Hurlingham, Johannesburg, in January 2007.
He faced alternative charges, including reckless and negligent driving charge, resisting arrest and was acquitted on the excessive amount of alcohol in his blood charge last month.
Van Zyl asked Pretoria chief magistrate Raymond Nair to draw comparison between how Motata speaks on the recordings of the accident and how he speaks in court.
Motata's lawyer, Bantubonke Tokota, argued that the state could not prove that Motata's mental state was impaired by alcohol found in his blood.
"The acquittal of the accused on having excessive alcohol in his blood removes the basis of conviction of drunken driving," he said.
Tokota said although there was alcohol in his client's blood system, it could have been one beer.
He said if one had to convict, one would have to rely on Baird's evidence.
"But his evidence is too dangerous. He chose (which) events to record. On the recordings the accused is heard saying 'f... you too'. How could he have said that without someone having said f... you?" Tokota asked.
The case was postponed to September 2 for judgment.