Judge challenges state on video clips

Simon Nare

Simon Nare

For the first time since he stood in the dock, proceedings in the trial of Pretoria Judge Nkola Motata were devoid of drama yesterday.

The trial yesterday was bogged down by an application by the defence for a trial within a trial.

Defence advocate, Danie Dorfling, wants a trial within a trial to decide on the authenticity and originality of five video clippings to be played in court.

The original recording by property owner and key state witness Richard James Baird is lost.

A duplicate on his laptop has been presented as evidence.

The original recordings are not the only crucial evidence lost in Motata's trial. A camera used to take the pictures, a cell phone simcard used to record a conversation between Motata and Baird at the scene as well as an original piece of paper in which the judge wrote his contact details, allegedly misspelt, are also lost.

Motata is facing charges of drunken driving and negligent driving after he drove his Jaguar into Baird's wall earlier this year.

Dorfling argued yesterday that the video clipping should not even be presented provisionally before its authenticity and admissibility are decided upon by the court.

He said that would constitute an unfair trial to his client. After quoting several judgments in other cases, Dorfling said the defence would approach the high court if magistrate Desmond Nair did not rule in his client's favour.

"The issue of the authenticity and originality of . video footage must be decided upfront and to do that there must be a trial within a trial," he submitted.

He added that it would be a violation of a constitutional right to a fair trial.

But state prosecutor Advocate Zaais van Zyl objected, saying the defence has conceded that the evidence was real.

"There is no need for that [a trial within a trial]; it will be a waste of time," he said.

He said the evidence should be weighed along with all the other evidence at the end of the trial.

In response to Dorfling's argument that Motata will not be afforded a fair trial if the video is accepted, Van Zyl said: "There must be fairness to both sides. Justice must be done. That's what needs to be done.

"When it comes to fairness that should also apply to witnesses. Why do they have to testify twice. They must do it once."

Magistrate Nair postponed the matter to October 25.