Defence argues against copies

Simon Nare

Simon Nare

Pretoria Judge Nkola Motata has lost his bid to have video clippings of his alleged drunken rantings after crashing his car withheld from his trial.

These are the recordings in which Motata allegedly swore at property owner and key state witness, Richard James Baird, after the judge crashed into a wall while driving drunk in January 6.

The recordings, in a series of five videos, were recorded by Baird on the night of the accident at his home in Hurlingham in the northern suburbs of Johannesburg.

The defence tried unsuccessfully to suppress the recordings until their admissibility had been established.

But in a trial within a trial in the Johannesburg magistrate's court yesterday, magistrate Desmond Nair ruled that he could determine the integrity and authenticity of the recordings only if they were played in court.

"I'm allowing the state to play the recordings. It's not to say this is evidence against the accused," ruled Nair.

Motata's defence team, led by Advocate Danie Dorfling, had argued that the recordings should only be heard in an open court once their admissibility had been determined.

He argued that if the recordings were allowed to be played before their admissibility was established the evidence would be available to the public domain, which would be prejudicial to his client.

He said the evidence was not the original copy of the recordings and that, according to the new Electronic Communication and Transmission Act, they should not be played in an open court.

He said an expert's input was imperative before the recordings could be heard since they had been copied at least four times.

"What we know is that the very first copy of the data no longer exists. We further know so far that the second attempt to get the data was a back-up and both have gone stray.

"So what we have is not the best evidence. The law requires the state to come with the best evidence in court," he argued.

Prosecutor Zaais van Zyl countered that the evidence was real and should be played.

"If we can't lead these witnesses and these recordings can't be played, with the greatest respect it will be tantamount to stuffing a sock in the state's mouth," Van Zyl said.

"The state can only properly argue the admissibility of these five recordings if we are allowed to play them and witnesses are given an opportunity to testify."

The five video clips recorded by Baird on the night of the accident were stored in his laptop after being downloaded from his cellphone.

Earlier Baird had testified that the recordings had not been tampered with though he had lost the original copy of the SIM card.

The recordings will be heard at the trial today.