Recordings 'are real evidence'
21/07/2008 14:13  - (SA)  

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Johannesburg - Digital data like the five cellphone recordings of Pretoria High Court Judge Nkola Motata's alleged drunken rantings should be considered as real evidence, the State said in the Johannesburg Magistrate's Court on Monday.

"Evidence is real evidence when it is tendered to show what it was that was recorded," said State prosecutor Zaais van Zyl.

Van Zyl was presenting his heads of argument at the conclusion of a trial within a trial to determine the admissibility of the recordings in a drunken driving case involving Motata.

He said four eye-witnesses had testified to the court that the recordings were accurate.

"Neither of the defence's expert witnesses testified that they (the recordings) had been tampered with or that they are inaccurate."

He said Motata had chosen not to testify in the trial within a trial. "The accused is in an excellent position to testify to any alleged inaccuracies in the recording... [If you don't testify] you can't cry wolf because then the evidence remains unassailed."

Recordings made sense

Van Zyl said the different recordings made sense.

"Sentences follow each other logically. There is no break in the recordings. There is no allegation of and no indication of any interference with the recordings... It is, in the end, a decision about the integrity of State witnesses."

He said the best evidence that could reasonably be expected to be put before the court had been submitted.

The court has listened two versions of the recordings downloaded onto a State witness's laptop.

Van Zyl said having possession of the originals was not a requirement for the court.

"There is no real original when it comes to digital data."

Nevertheless, he said while technology might have changed, the principle behind determining the type and admissibility of evidence had not.

No legal room to reject the evidence

Van Zyl said the recordings were also admissible according to common law.

"The evidence is clearly relevant. It is prima facie accurate. The test should be put no higher than that at this stage... There is no legal room to reject the evidence at this stage," he said.

Motata crashed his Jaguar into the wall of a Hurlingham property on January 6, 2007 allegedly while drunk. He faced charges of drunken driving and defeating the ends of justice for allegedly resisting arrest.

- SAPA

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