Witness 'will prejudice Motata'
2008-11-06 14:02
Johannesburg - Calling a new witness to testify in Pretoria High Court Judge Nkola Motata's drunken driving trial would prejudice Motata and infringe his rights to a fair trial, a Johannesburg magistrate said on Thursday.
"An accused person has a right to a fair trial, not trial by ambush ... is it fair for an accused person who has the right to know what case he has to meet and how to vigorously challenge it, to be confronted by this witness 14 months after the commencement of the trial? This will prejudice the accused," Magistrate Desmond Nair said.
He said calling the new witness, who only made his statement about three weeks ago, would further delay the trial as the defence would then seek a postponement for preparation purposes.
"One of the fundamental rights of the accused, relate to a speedy trial. The delay that may be necessitated will prejudice the accused," he said.
He further stated that disclosing a witness after the trial had commenced, and the accused had pleaded was unacceptable.
"The State said it had difficulties in getting a statement from this witness. However, I am mindful of the fact that the State has expertise and machinery to collect evidence. Witnesses to crimes who refuse to testify can be dealt with through the law ... if you fail, you have to make a judgment call," Nair said.
The unknown witness, referred to only as Mrs X, was brought to the attention of the court on October 13 after making a statement regarding events of the night Motata crashed his Jaguar into a perimeter wall of a Hurlingham property.
She is reported to have witnessed the judge, allegedly in a drunken stupor, fail to co-operate with metro police officers at the scene in January 6 2007.
In her statement, the witness gave an account of the position of the vehicle which crashed into Richard Baird's perimeter wall, Motata's presence in the car, his arrest and statements he allegedly made to the effect that the metro police officers would regret their actions.
When presenting this information to the court, prosecutor Zaais van Zyl said the witness had declined to give statements following the accident, despite four attempts to get statements from her.
Following van Zyl's indication that he would introduce a new witness, defence advocate Danie Dorfling said calling such a witness would prejudice Motata as she had been privy to media reports on the case.
When ruling on the matter on Thursday, Nair said while it was admissible for new witnesses to be called late into the trial, circumstances regarding the calling of Mrs X were unacceptable as Van Zyl could have just summoned her to court.
"Circumstances must justify calling such a witness ... application for an order that the state is prevented from leading evidence by the unidentified witness is therefore successful," Nair said.
He then postponed the trial to November 10 and 11 for continuation of proceedings.
- SAPA