Pretoria High Court judge Nkola Motata has lost a round in his drunken driving battle when the high court ordered that video recordings allegedly made on the scene where Motata crashed his car could be played in court during a trial-within-a trial to test their admissibility.
Motata had turned to the high court to have the ruling of the Johannesburg trial magistrate, Desmond Nair, set aside.
Last November Nair ruled that the State may play the recordings and deal with the transcript of the recordings in the trial-within-a-trial in order to later decide on their admissibility.
The criminal trial was postponed for Motata to take the ruling on review. Two judges, one from Bloemfontein and another from Grahamstown, were called to the Pretoria Bench to preside over the review.
Motata contended that the magistrate's decision to allow the State to play the recordings and to adduce the evidence of the transcript thereof, constituted a gross irregularity which was "severely prejudicial" to him.
Motata said the practical effect of watching , listening and observing the recordings in court by the magistrate, is to admit in advance evidence which may be self-incriminating.
He said this would be difficult to erase from the mind of the magistrate even if he ruled the recording inadmissible at the end of the trial-within-a-trial.
He said the high court should intervene at this stage to "prevent a grave injustice" to him.
The recordings were made on January 6 last year when he drove his Jaguar into the boundary wall of Richard Baird's property.
Motata was subsequently arrested and charged with drunken driving and defeating the ends of justice by resisting arrest. He pleaded not guilty to the charges.
When Baird was called to the stand, the State wanted to question him about the video recordings he made on the scene with his cellphone.
The State claimed the recordings constituted relevant evidence regarding Motata's condition and conduct.
On the day of the accident Baird downloaded the video clips to his laptop, thereby transferring the data from the SD memory card into the computer.
The cellphone used to make the recordings has since been irreparably damaged.
A digital camera with which Baird apparently took pictures that night was stolen about nine months after the incident. The SD memory card was also missing.
The five video files were copied from his laptop on to a memory stick and then onto a compact disk. A transcript of the contents of the clips were also made.
In turning down Motata's application, Judges S Hancke and JD Pickering said the evidence was not rendered at this stage to establish the guilt of Motata, as contended by him. The only issue at this stage is the authenticity of the recordings.
"We are satisfied that to determine the authenticity and originality of the recordings and hence their admissibility, the magistrate is entitled and indeed obliged, to listen to the recordings."
The judges said if the defence felt the recordings were manipulated in any way or not an actual portrayal of the events of the night in question, it could cross examine the State witnesses in this regard.
The judges said if the recording was found to be admissible as evidence, the magistrate would still have to determine the weight to be accorded to it. Should it be declared inadmissible, no prejudice would have been occasioned to Motata.
The judges said judicial officers were often confronted with similar situations and their training equipped them to disabuse their minds of such inadmissible evidence.
"Nothing has been put before us to show that any grave injustice or failure of justice is likely to ensure if the recordings are played in the course of the trial-within-a-trail," the judges said.