Motata v Nair NO and Another

• Jurisdiction: South Africa
• Citation: 2009 (1) SACR 263 (T)

Motata v Nair NO and Another
2009 (1) SACR 263 (T)

2009 (1) SACR p263

Citation	2009 (1) SACR 263 (T)
Case No	7023/2008
Court	Transvaal Provincial Division
Judge	Hancke J and Pickering J
Heard	June 3, 2008
Judgment	June 11, 2008
Counsel	BR Tokota SC (with ZZ Matebese) for the applicant.; No appearance for the respondent.; ZJ van Zyl SC for the second respondent.

Flynote : Sleutelwoorde

Evidence — Admissibility — Video and tape recordings — Trial-within-a-trial into B authenticity and admissibility of recordings — Court being obliged to listen to recordings during trial-within-a-trial in order to enable determination of their admissibility.

Headnote : Kopnota

The accused applied in the High Court for the review and setting aside of C a decision by the magistrate presiding over his criminal trial wherein the magistrate determined that, for purposes of a trial-within-a-trial into the authenticity and admissibility of certain video clips (which, it was common cause, contained no visual images but were merely aural recordings), the State was entitled to play the recordings, and deal with a transcript of the D recordings, in order to enable the court to determine their admissibility. The accused brought his application on the basis that the magistrate's decision allegedly constituted a gross irregularity which was severely prejudicial to him in the conduct of his defence (inasmuch as the recordings might be self-incriminating) and interfered with his constitutional right to a fair trial. It was submitted for the accused that the principles applicable to E the testing of the admissibility of confessions applied equally in the present matter, with the result that the State was precluded from playing the video clips prior to the determination of their admissibility.

Held, that the submission was ill-conceived that the admissibility of the video clips was analogous to the admissibility of a confession, as it was based on the incorrect premise that the contents of the recordings could be equated F with the contents of a confession. (Paragraphs [30]-[31] at 272g-i.)

Held, further, that the court was satisfied that, in order to determine the authenticity and originality of the recordings and hence their admissibility, the magistrate was entitled, and indeed obliged, to listen to the recordings. (Paragraph [40] at 274i-275a.)

Held, further, that nothing had been put before the court to show that any grave G injustice or failure of justice was likely to ensue if the recordings were played in court in the course of the trial-within-a-trial. That being the case, there were no grounds upon which the court could intervene in the proceedings in the court below. The application therefore fell to be dismissed. (Paragraph [43] at 275g-i.) The application was dismissed.

Annotations:

Cases cited

Reported cases

Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A): dictum at 5H - 6A applied H

Lombard en 'n Ander v Esterhuizen en 'n Ander 1993 (2) SACR 566 (W): I referred to

Nourse v Van Heerden NO and Others 1999 (2) SACR 198 (W): referred to

R v Behrman 1957 (1) SA 433 (T): referred to

R v Koch 1952 (3) SA 26 (T): referred to

S v Baleka and Others (1) 1986 (4) SA 192 (T): dicta at 196F and 199J - 200A applied J

2009 (1) SACR p264

S v Baleka and Others (3) 1986 (4) SA 1005 (T): dictum at 1025C applied A

S v De Vries 1989 (1) SA 228 (A): referred to

S v Gaba 1985 (4) SA 734 (A): referred to

S v Holshausen 1983 (2) SA 699 (D): referred to

S v M 2002 (2) SACR 411 (SCA) (2003 (1) SA 341): referred to

S v Malinga 1992 (1) SACR 138 (A): referred to

S v Mkwanazi 1966 (1) SA 736 (A): referred to B

S v Mpumlo and Others 1986 (3) SA 485 (E): referred to

S v Niewoudt 1990 (4) SA 217 (A): dicta at 238D and 238G - I applied

S v Ramgobin and Others 1986 (4) SA 117 (N): dictum at 134J applied

S v Singh and Another 1975 (1) SA 330 (N): referred to

S v The Attorney-General of the Western Cape; S v The Regional Magistrate, C Wynberg and Another 1999 (2) SACR 13 (C): referred to

S v Veii 1968 (1) PH H49 (A): referred to

S v Western Areas Ltd and Others 2005 (1) SACR 441 (SCA) (2005 (5) SA 214): referred to

Sita and Another v Oliver NO and Another 1967 (2) SA 442 (A): referred to

Wahlaus and Others v Additional Magistrate, Johannesburg, and Another 1959 D (3) SA 113 (A): dicta at 119G, 119H - 120A and 120D applied.

Case Information

Application for the review and setting aside of an interlocutory ruling made by a magistrate during the course of a criminal trial. The facts appear from the judgment of Hancke J and Pickering J.

BR Tokota SC (with ZZ Matebese) for the applicant.

No appearance for the first respondent.

ZJ van Zyl SC for the second respondent.

Cur adv vult.

Postea (June 11). F

Judgment

Hancke J and Pickering J:

[1] This is an application for the review of a ruling made by the first respondent herein, the chief magistrate of Johannesburg, on 7 November G 2007, during the course of a criminal trial in which the applicant stands accused of certain offences. The first respondent has elected to abide the decision of this court, whereas the second respondent, the Director of Public Prosecutions (Witwatersrand Local Division), has opposed the relief sought herein.

H [2] Applicant, a judge of the High Court, was arrested in the early hours of 6 January 2007 consequent upon a collision allegedly involving the motor vehicle being driven by him and the boundary wall of a property belonging to a certain Mr Richard Baird. On 26 September 2007 applicant appeared in the Johannesburg magistrates' court before the first respondent charged, on count 1, with drunken driving in I contravention of s 65(1) of the National Road Traffic Act 93 of 1996, as well as with certain alternatives thereto and, on count 2, with defeating or obstructing the ends of justice, alternatively, resisting arrest in contravention of s 67(1)(a) of the South African Police Service Act 68 of 1995.

To all these charges applicant pleaded not guilty, electing not to provide J any plea explanation.

2009 (1) SACR p265

Hancke J and Pickering J

[3] The first witness called by the State was the aforesaid Mr Baird. A During the course of his testimony the State sought to introduce into evidence five video clips, allegedly recorded by Mr Baird with his cellphone on the night in question. It is common cause that the video clips contain no visual images but are aural recordings which, so the State contends, constitute relevant evidence of applicant's condition and B conduct at the scene of the collision.

[4] It appears from Mr Baird's testimony that the data files relating to the video clips taken by him were stored on a so-called SD memory card in the cellphone. Later that same day Mr Baird downloaded the video clips to his personal laptop computer thereby transferring the data from the C SD memory card to the computer. On 20 August 2007, however, prior to the commencement of the trial, his cellphone had fallen and had been irreparably damaged. A digital camera with which Mr Baird had allegedly also taken certain photographs on the night in question was allegedly stolen sometime early in September 2007. The relevant SD D memory card was missing. Eventually, after the commencement of the trial, the five video files were copied from his laptop computer onto a memory stick and then onto a compact disc. A transcript of the contents of the five video clips was also made.

[5] The defence objected to the playing of the video clips in court, as well E as to the introduction into evidence of the transcript. It was submitted by counsel who represented applicant at the trial that applicant's constitutional rights to a fair trial dictated that a trial-within-a-trial be first held in order to determine the admissibility of the video clips. F

Having heard argument, the first respondent ruled, on 25 October 2007, that 'there should be a trial-within-a-trial after which the Court will give a ruling on admissibility'.

[6] On 7 November 2007 the State proceeded to lead the evidence of G Mr Baird in a trial-within-a-trial and again sought to introduce the five video clips and transcript into evidence. Once again, the defence objected thereto, the gravamen of the objection being that the playing of the video clips and the introduction of the transcript, prior to the court having ruled on their admissibility, would constitute a gross irregularity which would severely prejudice applicant and would, in effect, defeat the H object of the trial-within-a-trial.

The first respondent, however, was not persuaded thereby and ruled that the 'State may play the recordings and deal with the transcript in the trial-within-a-trial in order that the court may determine its admissibility I after the trial-within-a-trial'.

[7] At that stage the defence applied for, and was granted, a postponement of the trial in order to take the first respondent's ruling on review to the High Court. In due course the present application was launched in which applicant seeks the following order: J

2009 (1) SACR p266

Hancke J and Pickering J

1.

A That the ruling by the first respondent on 7 November 2007 to the effect that the five (5) video recordings allegedly taken by Mr Baird at the scene of the alleged crime be played in Court during the trial-within-a-trial to test their admissibility be reviewed and set aside;

2.

That the first respondent be and is hereby ordered and directed to B continue with a trial-within-a-trial without the video and audio recordings being played;

3.

That pending finalisation of this review the respondents be and are hereby ordered, restrained and interdicted from proceeding with the criminal proceedings against the applicant in the Magistrate's Court...