NEWS & ANALYSIS

Nkola Motata: The judgment

Transcript of Desmond Nair's ruling on drunk driving charges, September 2 2009

CASE No: 63/968/07

DATE: 02 SEPTEMBER 2009

 

IN THE MAGISTRATE'S COURT FOR THE REGIONAL

DIVISION OF GAUTENG HELD AT JOHANNESBURG

BEFORE  MR. D. NAIR

THE STATE versus MR. N. J. MOTATA

CHARGE (SEE CHARGE SHEET)

PLEA (SEE CHARGE SHEET)

ON BEHALF OF THE STATE ADV. VAN ZYL

ON BEHALF OF ACCUSED: ADV TOKOTA

JUDGMENT

The accused in this matter is Mr Nkola John Motata, an adult male aged 62. The accused is facing two counts with alternatives to each count. The first charge against the accused is drunken driving, specifically a contravention of Section 65(1)(a) of Act 93 of 1996, also known as driving a motor vehicle under the influence of liquor, a drug having a narcotic effect.

There was a first alternative to the main charge which is a contravention of Section 65(2)(b) of Act 93 of 1996, commonly known as driving a motor vehicle whilst the concentration of alcohol in any specimen of blood taken from any part of his body was not less than 0.05 gram per hundred millilitres at any times within two hours of the alleged driving.

The accused was granted a discharge in respect of this count at the close of the case for the state after the defence applied for the discharge of the accused on all of the counts in terms of Section 174 of Act 51 of 1977 which is hereinafter referred to as "the Act" in this judgment. There is also a second alternative to the first charge, being a contravention of Section 83(1) of Act 93 of 1996, which is reckless or negligent driving.

The second charge is one of defeating and obstructing the ends of justice with an alternative to that count also. The alternative to this count is a contravention of Section 67(1 )(a) of Act 68 of 1995, also known as resisting arrest.

The allegations all relate to 6 January 2007 at or near Gleneagles Road Hurlingham. The charge sheet I do not need to repeat at this point, it is already on the record.

The trial commenced on 26 September 2007 Advocate Z van Zyl, Deputy Director at the DPP conducted the state case together with Ms A Morton, his junior and the charges were put to the accused. The accused was defended by, at that point by Advocate D Dorfling, instructed at that stage by Mr Marinus van Jaarsveldt.

The accused pleaded not guilty to all the counts and elected to remain silent and the trial then commenced with the state leading the evidence of several witnesses before the close of the state case.

It must be remembered that the state commenced with evidence on the main trial which was interrupted and had to recommence after the trial-within-a-trial. So one will bear in mind that there was evidence heard by two sets of witnesses. One set during the trial-within-a-trial and another during the main trial.

During the course of the state case the court ordered that such trial-within-a-trial be held at the request of the defence. This was after the defence at that stage objected to the leading of Mr Richard Baird on the video/audio clips which were recorded on his cellphone.

During the trial-within-a-trial the state led the evidence of Mr Richard Baird, Ms Frieda Ramafemo, Mr Lucky Melk and Mr Daniel Madibo The defence presented the evidence of Professor van der Merwe and Mr de Jongh. The court then received written heads of argument from both parties and at the conclusion of the trial-within-a-trial the court admitted the recordings which were recorded on a cellphone at the scene of the incident and which Mr Baird downloaded onto a computer.

The reasons for the rulings were given in full in open court. The effect thereof was that the court found that the recordings had met the requirements for admissibility. The court specifically stated that the value and weight of the recordings still had to be determined at the end of the trial.

The state thereafter continued to lead the evidence of several other witnesses in the main trial before the close of the state case. At the close of the state case the court received and heard written and oral argument from both parties in respect of an application for a discharge in terms of Section 174 of the Act.

The court refused the application and gave a full judgment in respect of the refusal to discharge the accused on all the counts but one, which was the alternative count to drunken driving.

After the application for a discharge of the accused was refused the defence closed the case for the accused and the court then received heads of argument in respect of the merits of the full trial as well as oral submissions by both Advocate van Zyl and Advocate Tokota, who, by that stage, had taken over the defence of the accused in this matter.

A summary of the evidence is as follows:

Mr Richard Baird holds a BCom Honours degree in Accounting, Auditing and Commercial Law and had been involved in computer auditing which he learned at honours level. He was involved in a JSE listed company as a group accountant and then as group IT manager. In that role he was involved in information technology, policy, strategy, implementation and security. The JSE listed company was part of the Rolls-Royce Aero Space group. He has also studied Business Information Systems up to second year.

Mr Baird testified that he arrived on the scene plus minus 10 minutes after a phone call which he received from his tenant; Mr Lucky Melk. He was at his home in Blairgowrie at the time and had to travel to Hurlingham. He received the call at approximately 12:20 that night.

When he arrived on the scene he found a Jaguar motor vehicle which was in a reverse position "through the wall", as he described it. It was a Friday night, early Saturday morning when this occurred and he thereafter on his arrival proceeded to take photographs using a digital camera which he had brought to the scene together with his cellphone.

The photographs were taken at the following times according to Mr Baird, if one has a look at Exhibit "B", which was handed up to the court Exhibit "B" photos 1 to 2 at 01:11. Photos 3 to 4 at 01:12, Photo 5 at 01:11 Exhibit "B" 6 at 01:15 Photo 7 and 8 at 01:23. Photo 9 at 01:55. Photo Exhibit "B10" at 01:59.

He stated that he started taking photographs with his digital photograph at about 01:10. He then went through to describe his property which he identified from the photographs which were handed in also as exhibits and they are set out in Exhibit "A"- Photos 1 to 10 are pictures of the road on which the incident occurred, including pictures of the property and the wall into which the Jaguar had smashed.

Mr Baird expanded that photo 1 to 3 was Gleneagle's Road, taken in the direction of number XX Glen Eagle's Road. Photo 4 was the top of Gleneagle's Road. Photo 10 was a close-up photo of the alleged accident scene, which is depicted in photo 8.

Exhibit "B" photos 1 to 10 were photographs taken live on the scene shortly after the incident. Photos 1 and 2, 5 and 6, 7 and 8 are pictures of the motor vehicle. Photos 3 and 4 are pictures of the accused seated in the vehicle. Mr Baird described the entrance to the property to be the entrance closest to the third tree, going left to right.

He indicated that the street has a boom gate, which gate is closed between 18:00 and 09:00, except on weekday mornings. Gleneagle's Road he described is a tarred road in a fairly good condition and a public road in Johannesburg. The boom gate is approximately 60 metres from Mr Baird's property.

He described the pavement bordering his property as a sand pavement with no curb stone on the edge of the tar the width of the road is insufficient to allow for a U-turn and if you park a big sedan on the pavement there is less than a metre left to the right.

He indicated further that he tried to make a phone call to the SAPS for plus minus half an hour. He used a digital camera to take photographs while the occupant remained in the vehicle. He observed that the wall had been smashed and had collapsed and that the electric fencing was also broken.

He observed that the vehicle had hit the upright and he inferred that same had caused the boot to open from the impact. There was damage to the corners of the vehicle and he added that whilst he took the photographs he did not communicate with the occupant of the vehicle, who identified as being the accused before court.

Whilst taking the photographs he noticed documents in the boot of the vehicle that appeared to be government documents. On inspecting the documents he observed the name, Motata, and he even went over to the occupant in the vehicle and said: Hello Judge, at which point Mr Motata became aggressive.

He remembers that prior to saying ‘hello judge" that he had a discussion with the tenant that this person was drunk. According to Mr Baird, Mr Motata tried to get out of his car and at some point the nature of the conversation made Mr Baird very uncomfortable and he withdrew from the scene to call his attorney. This was probably around 01:20 to 01:25.

He went on to state that he was being targeted by Mr Motata who was angry and there was ongoing swearing. Mr Motata was ranting and carrying on and swearing specifically at Mr Baird. Mr Baird made recordings on his cellphone which the court has found to be admissible after the trial-within-a- trial and he made these recordings at the following times. The first clip at 01:22, the second at 01:48, the third at 02:09, the fourth at 02:21, and the fifth at 02:27.

The recordings were intended to be video recordings, but because of the inability to capture properly only the sound and the voices can be heard, Mr Baird described the language used by the accused as very "colourful". He stated further that there were racial slurs, derogatory language and swearing.

The accused, according to Mr Baird, said "F you" repeatedly and in different versions. His word construction was inadequate and he was not coherent. Therefore according to Mr Baird a meeting of the minds was not possible. The accused's arguments were illogical and he described the appearance of the accused as having a glazed look on his face which was difficult to describe.

Mr Baird further said that the accused had a look in his eyes as if they were swimming. They were not focussed and he smelled of alcohol. He said that the closest he ever got to Mr Motata was probably about an arm's length, which is about three quarters of a metre and for the rest of the time Mr Baird was well away from the accused.

He went on to add that the accused's speech was drawn out laboured and his word construction was inadequate. Mr Baird further added that the accused put emphasis on certain words, drawing out the words such as "you". He went on to add that the accused did not complain of any pains, injuries, nor was there any blood.

In respect of his balance Mr Baird added that he could not stand up without holding onto his car. He was holding onto the vehicle being unbalanced when he came out of the car and when he was getting back into the vehicle.

Baird further described the accused at that point as if he was holding on in a kind of uncertain manner trying to grab onto steadiness as if a blind person would want to search in front of him. Baird further added that the unsteadiness was similar to a much older person who was unsure of his footing, holding onto railings and things as they moved around, trying to find things to hold on to.

He further added that there was a time when the accused got out of his car, was unstable and he fell over. He caught himself on the car, but did not fall on the ground. He stated that had Mr Motata not grabbed onto the door he would surely have hit the ground.

Mr Baird then added that although he had no medical training to make clinical observation as to a person's state of sobriety it never occurred to him from his observation that the accused was in shock. He in fact formed his opinion from what he saw in front of him. Baird insisted that he had life experiences which enabled him to make observations to a person's state of sobriety.

He added that there was a stage that the accused was outside the vehicle he was at the driver's door, standing between the door and the vehicle. When Mr Baird started making the video recordings on the cellphone Mr Motata had actually got back into the vehicle. He stated that he had to stop the recordings at some stage because he was concerned that his battery was going to die and in the end he made plus minus five recordings.

Mr Baird further went on to add that the Metro Police arrived, and these were two lady officers, approximately one and a half hours after the accident. He saw them speak to Mr Motata and they were becoming fairly unhappy and distressed. They were speaking Sotho at some stage the two Metro Police women withdrew back to their vehicle and said that they had to call for backup. This is confirmed in the audio recordings as Baird went through the recordings in open court.

He went on to add that they called for another vehicle with males to come to the scene and the Metro Policemen arrived and went and spoke to Mr Motata. They were in uniform and it appeared to him that they ultimately wanted to breathalyse, in his words, Mr Motata. According to Mr Baird Mr Motata refused to be breathalysed.

He thereafter added that they went back to Mr Motata and asked him to please accompany them for blood testing. He stated that the Metro Police individuals asked Mr Motata to cooperate with them but he refused to do so and he was quite aggressive towards them. Baird went on to add that he recalls one of the Metro Policemen actually going down on his knees and saying to Mr Motata, "I beg you to please cooperate with us, I am begging you".

Mr Motata did not cooperate with them and they subsequently handcuffed him in his vehicle. He was holding onto the steering wheel. After they handcuffed him they lifted him out. He further testified that as Mr Motata was lifted out into standing position his knees gave in below him and he ended up sitting on the seat of his pants on the ground and he was helped up by the two male Metro Police officials.

He added that during the arrest process Mr Motata was uncooperative and repeatedly threatened the police officers that they would regret it. This can be heard, according to Baird, on the audio recordings and was heard during the trial-within-a-trial.

He testified further that there were discussions on negotiations for payment of the damage to the property, but there was no agreement reached between Mr Motata and himself. Baird also testified that Mr Motata wrote his details and particulars at the scene of the incident on a piece of paper. The note was very difficult to read as there was repetition and incorrect spelling.

Baird made photo copies of the note and scanned a copy thereof as well.

He added that he had acquired a farm in Mpumalanga in 2004 and he spends a great amount of time travelling between the farm and his home in Johannesburg. The original piece of paper, he stated at that stage of the trial, was in a filing system on the farm. Advocate van Zyl sought to place a copy of the handwritten note before the court to which Mr Dorfling objected.

The court, after listening to the argument initially ruled that the document at that stage did not meet the threshold required in terms of the best evidence rule and at a later stage during the trial Mr Baird testified that he had conducted a search for the original of the handwritten note and had found same. He then produced the original handwritten note, which contained an ID number right at the top. He said that this was in his own handwriting and which was provided to him on the scene.

The note was handed in as Exhibit "E" and contained itself various spelling and inaccuracies which are set out hereunder. The contents of the note were as follows: "The honourable mister mister justice NJ Motata Transvall Provinicial divisionn". Beneath that "TPD" plus something that was not clear and telephone numbers: 012 33 eligible digit 75 and something that could either be 54 or 81. Mr Baird was adamant that the accused wrote his details on the piece of paper.

Baird had stated that the note which was written on was produced by the accused but he later corrected the position by saying that the particulars had been written on a discarded print-out of a working document that he had in his pocket at the time of the incident.

During cross-examination Mr Baird conceded that he told a white lie about his attorney arriving on the scene and sought to explain it on the grounds that he wanted to get the accused off his back in respect of the manner the accused wanted to settle the matter.

He was questioned from the transcript that was read out into the record as the various witnesses testified and which was extensively used by the accused. Mr Baird initially testified that it was the accused who produced a piece of paper on which his details were written, but when he handed in the original note, as I have already stated, he mentioned that it was his own piece of paper and he only remembered this when he found the original paper.

He was asked about the closest that he was at any point in time from the accused during the incident and in evidence he answered that it was about a metre and a half or two metres. It was only during cross-examination that he said it was about an arm's length or three quarters of a metre.

Mr Baird maintained that he only started recording [the final video] after the accused was handcuffed and after the officer went down on his knees to plead with the accused. He conceded that it was also his own handwriting on the original note where he had written the ID number on the top thereof.

He was referred to words in the transcripts which tend to show that the accused maintained that he was not drunk and he agreed that the words may be construed to mean that but he also stated that the accused did not specifically deny being drunk on the scene.

Paulina Mashilela testified that she was employed by the Johannesburg Metro Police Department, involved in general patrol duties since 1 July 2002. She had been working with Frieda Ramafemo since October 2005. She was duly appointed in terms of Section 64(G) of Act 68 of 1995 as a Metro Police Officer. She worked together as a team with Frieda and on the night of 5 to 6 January 2007 she was on duty from 23:00 Friday until 07:00 Saturday.

She was the driver of the vehicle and in the early hours of that morning she received instructions to go to XX Gleneagle's Road. She identified photograph 3 in Exhibit. She arrived on the scene and found a gold Jaguar motor vehicle which had reversed onto the precast wall of number XX.

On the scene where people who appeared to be neighbours, there was a patrol vehicle and a breakdown motor vehicle. Both Frieda Ramafemo and her were dressed in full uniform. They were travelling in a JMPD vehicle which was clearly marked and the blue lights were on at the time that they stopped at the scene.

She stated that it took a long time for them to arrive on scene because they were lost as Hurlingham is divided into three sections. They arrived on the scene at around, in her words, around past 02:00. On the scene she alighted from the patrol car and went straight to where the incident had occurred. She identified photo 5, Exhibit "B" as being a picture of the scene at the time.

She stated that she saw Mr Motata talking with people. Mr Motata was standing, leaning against his car. The drivers door was closed. It appeared as if Mr Motata and the people who were present, were involved in an argument. She asked him to keep quiet, which he did not do.

According to her he confirmed that he was the driver of the car and he asked her if she was light in complexion. There appear to be some confusion in respect of these words as they appear on the transcript which was made during the course of the trial-within-a-trial and to which I will revert at a later stage, and can be heard in Sotho on the audio recordings, which the court ordered be played out during the trial-within-a-trial. Eventually she agreed that the question related to her complexion.

She replied that she did not take it otherwise and kept quiet. Mr Motata said he was a judge and handed her his appointment card. She looked at the card and handed it back to him. Her companion, Frieda, was still in the car talking to someone in the radio room.

She went on to add that thereafter Mr Baird arrived. She was not aware that the recordings were being made by Mr Baird. She listened to Exhibit "1" and followed on the transcript, Exhibit "1" being the CD that was handed up during the trial-within-a-trial.

She identified her voice on Exhibit "1" and was able to point out exactly to whom she was speaking. She confirmed that whatever was translated on the transcript was correctly translated from Exhibit "1". She stated that she was satisfied that where she was involved the translations as contained in the transcript, visa ve exhibit "1", were correct.

She was able to identify her own voice, that of the accused, Mr Baird's and Ms Mashilela's. She also confirmed the accuracy of the transcript in relation to the translation from Sotho to English. She asked the accused for his drivers licence, but he was still busy talking, which prompted her to say to him: "Stop talking to that gentleman and give me the driver's licence".

She identified that at the bottom of page 7, Exhibit "C", she states: "Sir, please leave this man alone. Talk to me. Leave this man alone to talk his own problems. We are waiting for a long time." She completed the accident form and she also identified her voice on Exhibit ‘1' corresponding with page 9 of Exhibit "C" the transcript, and at various stages-of the transcript which was marked. Exhibit "C".

She also identified Mr Motata's voice on the recording at the times that it corresponded correctly with the transcript. She stated further that either Ramafemo or herself had called for extra manpower at some stage because when they wanted assistance that was what they would do. They needed males to come on scene because they informed Mr Motata that they were going to arrest him and he responded by saying that he is not going to be arrested by female people.

She stated that Mr Motata and said to Mr Motata: We must lock him up because she suspected that he might have consumed alcohol. But these were the interpreter's words and once again there appeared to be a discrepancy in respect of the interpretation. Mr Motata at some stage responded by saying that he cannot be arrested by females. He did not explain why, but stated that a female cannot arrest him.

She then confirmed that she suspected that Mr Motata had consumed liquor. She stated that Frieda had explained Mr Motata's rights to him. There was an issue with the interpretation of certain words surrounding the term ‘under the influence of liquor". The interpreter then corrected the situation that the correct interpretation was: I was thinking that he was under the influence of liquor.

On a question by Mr van Zyl as to why she was thinking he was under the influence of liquor she responded by saying because Mr Motata was talking too much. On a question, what do you mean speaking too much, she responded by saying: When I tried to stop him, as he was busy talking, he could not stop. He was continuously speaking making some noise, or making noise, all of them.

On a question whether Mr Motata was outside the vehicle all the time she responded in the negative. She did not personally make any attempt to test for liquor on the scene. She stated further that if her memory served her well she recall that there was a breathalyser test kit in the motor vehicle. She could not recall whether this breathalyser suitcase was taken out of the vehicle that evening.

She spoke both English and Sotho on the scene, but she did not speak to Mr Motata when he was in the vehicle. She added that the door of the vehicle was closed but the window was opened and at this stage it appeared that there was a turn-around in the manner in which she was giving evidence.

She sought to clarify the positions surrounding when Mr Motata said that they could not arrest him. When I said the judge said we cannot arrest him I did not mean he was resisting arrest. He was saying we cannot catch him as we are females, thus I called a male.

She stated that she did not ask people in the vicinity for assistance as they were fighting with Mr Motata, she therefore called for manpower. She went on to add that when Mr Madibo and Mr Mashego arrived they requested, the "they" referring to herself, requested the two gentlemen to please assist as they have a problem with the judge.

She was then referred to page 16 of the transcript while the recording was played. She identified her voice. She confirmed that the words uttered on the audio recording at that stage and at that point as contained in the transcript: No-no-no, that is not the way to do things and you are making us illiterates, were her words. She also confirmed that the words: "This man is giving problems, are you going with us", were hers.

She then testified that she witnessed the arrest taking place and stated that Mr Madibo and Mr Mashego requested Mr Motata to alight from the vehicle. On Mr van Zyl's question: Did he come out, she responded: He was still angry as he was seeing that his things were not coming alright.  He was fighting as he was fighting with the owner of the house.

She then stated that they pulled him, but highlighted that they did not listen to what he was saying. She stated that she was a distance of four to five metres away from the vehicle at that time and that she saw Madibo and Mashego pull Mr Motata inside the motor vehicle and also pull him out of the motor vehicle. She confirmed that she saw them holding Mr Motata as well.

On a question: How did Mr Motata get from his vehicle to their vehicle, she responded that she saw Mr Madibo being on one side and Mr Mashego on the other side of Mr Motata. The words she used were "balancing the judge". She was asked, did she ever ask Mr Motata what happened there and she responded by saying that she did, but he did not give her an answer.

She stated further that immediately after the arrest when Mr Motata was inside the motor vehicle they left the scene. In the vehicle was Mashilela, Ramafemo, Mr Motata and Mr Moshego. Ramafemo drove the vehicle while she sat in the front passenger seat. Officer Mashego was seated with Mr Motata at the back.

They drove straight to the district surgeon in Hillbrow. On route to the district surgeon Mr Motata asked why they were arresting him and where did they leave his motor vehicle. She personally responded that he was speaking too much and she was trying to make peace between Mr Motata and that person.

She then strangely said that Mr Motata asked if they could merely arrest him for breaking a wall and she responded by saying that no-one wants to make peace and that Mr Baird being the owner of the house, forced them to arrest Mr Motata and he, Mr Baird, thought that Mr Motata smelled of alcohol.

On a question: Did you smell alcohol she responded that she did not hear the smell of alcohol. She went on to add that it took about 20 minutes to reach the district surgeon. Mr Mashego and Madibo and Ms Ramafemo went to Hillbrow Police Station to look for a case number while she waited in the doctor's consulting rooms with Mr Motata.

They returned with a case number and a blood box. She took the blood box and gave it to the doctor. She was present when Mr Motata's blood was drawn. They then left to lay a charge, open a case of driving under the influence of liquor.

At the Hillbrow Police Station they were informed that this is not a Hillbrow case and that the case belongs to Randburg. Randburg Police Station apparently also refused to take the case and they ended up seeking clarity from the radio room which eventually resulted in them taking Mr Motata to the Parkview Police Station somewhere between 09:00 and 10:00 that morning.

During cross-examination she conceded that it would not surprise her that there was evidence placed before the court that the accident happened prior to 00:23 and further she confirmed that she agreed with the report from Dr Gazi that the blood was drawn at 03:35 on the morning of 6 January. She further stated that she might have arrived at the accident scene past 02:00.

She could not recall if Mr Motata was handcuffed with his hands in front of his stomach or behind his back. She was unaware of the existence of the note which was referred to in Baird's testimony containing the accused's particulars in almost illegible handwriting.

During cross examination she highlighted to the court that she had a complaint against the Deputy Director of Public Prosecutions who was leading the state's case to the extent that she averred that she was threatened and after some time the court had to go to the extent of summonsing the Director of Public Prosecutions Ms Karin de Beer and eventually it was resolved that Ms Mashilela would formally lodge a complaint with the Director of Public Prosecutions, advocate de Beer.

The statements that were handed in during her evidence were also marked Exhibit "N" and "0" and this included the notes to which he referred when she spoke about her interaction with Advocate van Zyl which led her to lay the complaint against him in open court.

She further confirmed that there was a lot of arguing between the owner and the accused, referring to Baird. It was put to her that if the accused were to give evidence he will say that the actions of the owner caused him to become upset. It was further put that the accused will say to the court if he were to be called to give evidence, that he felt insulted by what was being said, and particularly by the fact that he was accused of being drunk.

She further indicated that there was a stage during the incident on the scene which was not on tape, where the owner of the place said: Mr Motata is a drunken driver. She went on to add that Mr Baird further insisted on Mr Motata being arrested and insisted on his blood being drawn.

She then agreed during cross-examination that on numerous occasions during the course of the evening the accused addressed the issue of his car keys and also enquired into who possessed his car keys. She stated that she did not know how the accident happened.

It was put to her that the accused will say that he wanted to execute a U-turn because the road was blocked off and that he reversed to get out of the way of another vehicle. He then misjudged the distance to the wall and hit it.

During re-examination she stated on being requested to clarify why she held the view that Mr Motata was not allowed the opportunity to speak, that the officers on their arrival, referring to the male officers, had just grabbed Mr Motata without asking what the reason was, simply because the officers had received an instruction from them that they should arrest him.

She once again reiterated on being asked for Mr Motata to be arrested that that was correct and that the male policemen were called to assist them. She said that it was at the stage that Mr Motata can be heard saying: You are not a good person and now you are pretending to be a good person, that Mr Baird said to Mr Melk that he is a drunken, and the reference to the K-word that was used frequently during the course of the trial-within-a-trial and thereafter.

Mr van Zyl then questioned her on Exhibit "N" and referred her to a portion in her statement where she says: He failed to cooperate with us and he refused to take the breathalyser. He also further referred her to another portion where it is stated: He could not speak properly or walk properly to get into his car. She specifically responded on the diversions between her evidence and her statement by saying that there were four officers when the statement was written and that Captain Molo was writing the statement and she was instructed to copy what Molo had written.

Mr Matlodi Daniel Madibo testified that he is an officer at the Johannesburg Metro Police. Prior to that he had also worked as a security officer at the City Council. He has been appointed in terms of Section 60(4)(g) of Act 68 of 1995.

On the early hours of 6 January he was on duty together with Officer Mashego in Region 4. He received an instruction to go to another region being Region 3 and that instruction was received at about 03:00 in the morning.

He proceeded to XX Gleneagle's Road, Hurlingham in an official Metro Police vehicle and reached there at about 01:50. He observed a gold Jaguar motor vehicle had crashed into the wall and the driver was still in the vehicle and he identified the driver as being the accused before court.

He was shown exhibit "B", photo 5 which he identified. There were two other Metro Police Officers on the scene and he had received some information from Paulina Mashilela and then proceeded to speak to Mr Motata who was still inside the vehicle. He asked him to come out of the vehicle so that they could perform a breathalyser test on him.

He was together with Mr Mashego at the time. He went to Mr Motata and asked him to alight from the motor vehicle, Mr Motata refused. He then opened the car door but Mr Motata closed the car door. He then re-opened the door but the accused closed it again. He then opened the door using his hands and placed his foot on the door to block the door in such a manner that Mr Motata could not close the door again. He positioned himself in such a manner that the door could not be closed, using his leg and using his body to prevent the door from closing.

Mr Motata was in possession of a cellular phone and he informed him that he was still using his phone. He requested Mr Motata to alight from the vehicle which Mr Motata refused to do. At a certain stage the phone which Mr Motata was holding fell to the ground and Mr Motata then held onto the steering wheel.

When he did that Mr Mashego handcuffed the hand which held the steering wheel. The witness then gave a demonstration in open court and the demonstration revealed that the driver was holding the steering wheel with both hands and Mr Mashego handcuffed the left hand. Mr Mashego, his colleague, was in the vicinity assisting him. He helped Mr Madibo to take Mr Motata out of the vehicle so that he could properly handcuff him.

The court will adjourn for five minutes or so.

[ADJOURNMENT]

COURT: Thank you. The court was busy with the evidence of Matlodi Daniel Madibo and I go on to say that he stated that the explanation of the rights before the arrest was done by Ms Mashilela, and this explanation took place in front of him.

He managed to take Mr Motata out of the vehicle and handcuffed him from the back. Mr Madibo then testified that whilst this process was taking place Mr Motata stated that he was going to sue Metro Police and that he cannot or does not agree that he has to be arrested by females.

He then said that he cannot recall other things. On a question: Was Mr Motata removed from the motorcar, he replied: Correct. As they pulled him he then fell next to his motor vehicle. He said that Mr Motata fell with his knees to the ground. They picked him up and went to the motor vehicle. He said that Mr Motata could not pick himself up because they had handcuffed him.

He testified further that Mr Motata advanced a reason for what had transpired there and he said that he was trying to reverse as he got lost and that is when he crashed into that yard. He elaborated on how they picked Mr Motata up and to this and he said: We picked him up, Mr Mashego grabbed him on the other side. I a/so grabbed him on the other side and we then went to the motor vehicle.

On the question: Was there any specific reason why each of them grabbed him on either side, he responded: As an officer when you have arrested a person in order for that person to be arrested you have to grab him. He describe Mr Motata's walking ability as being fine and they then took Mr Motata to the Hillbrow District surgeon,

He commented on Mr Motata's state of sobriety as follows. He said that he could not say that Mr Motata was sober or not but he confirmed that there was some alcohol that he smelled and the smell emanated from Mr Motata. He could not hear some other things that Mr Motata spoke but he was speaking like stammering.

They then proceeded to the district surgeon at Hillbrow, handcuffs were removed at Hillbrow. He said further that Mr Motata had produced his card to him on the scene before the arrest. He did not go with Paulina Mashilela and others to the Hillbrow Police Station and at some stage he asked Mr Motata where he was coming from and where he was going to, to which Mr Motata replied that he was coming from Pretoria.

During cross examination he was questioned on his testimony given in the trial-within-a-trial and he repeated that he was once involved in an accident, that it affected his brain. He then pleaded with Mr Dorfling not to ask him many questions.

He stated that video 23 about which he testified in the trial-within-a- trial was a full record of his involvement with Mr Motata on the scene. He confirmed that he was summonsed at 02:50 that morning and then corrected the position to 01:50 as being his time of arrival on the scene. When further prompted by Advocate Dorfling he then stated that he arrived there exactly around about 03:00 .

He then further confirmed that he heard vulgar words being exchanged between the owner of the house and the owner of the motor vehicle. On questions by the court he responded in respect of his state of health as follows: He is 46 years old and was involved in a fatal accident between 2001 and 2008. He was hospitalised for eight months and was only discharged in the month prior to giving evidence. Since returning to duty all he does is write parking tickets and he will no longer be able to do arrests, road blocks etetera.

He stated that the female officers were the ones who wanted to do a breathaliser. He confirmed that neither he, nor Mr Mashego had a breathalyser test kit with them and he stated further that the two female police officers did not have a breathalyser in their possession but wanted to take Mr Motata to a district surgeon in order for them to do the breathalysing test.

He was given a copy of his statement and recognised the affidavit as being his. The affidavit was taken three months after the incident. He wrote out the statement himself and his attention was drawn to the fact that the statements deposed to by Mr Mashego, Ms Mashilela and Ms Ramafemo appeared to be commissioned within minutes of each other.

It was pointed out to him that his statement and that of Mr Mashego, although written independently of each other are identical in their wording in respect of the following words, and I quote: We then end up telling him that we are arresting him, read his rights, and used force to take him out of the vehicle.

A further quotation that appeared to be identical was: And handcuffed him because of his aggressiveness. Force used, pulled him from his vehicle to our patrol vehicle. We proceeded to Hillbrow District surgeon to draw blood from him. That is where we left Judge Motata and two officers. He tried to explain the similarity in the face of the accusation that he and Mashego discussed the contents of their statements by stating that they were doing the same jobs.

On questions regarding the cellphone, he was questioned extensively regarding Mr Motata's discussion on the cellphone and he confirmed that he spoke to Mr Motata while Mr Motata was on the phone. He said further that when he asked Mr Motata to alight from the vehicle Mr Motata at that stage was speaking on the cellphone. He then maintained that he could not recall what he previously answered during testimony during the previous day.

He was pertinently asked why he did not allow Mr Motata to finish his discussion on the telephone prior to him attempting to open the door to which he responded that it was because of the fact that upon their arrival they were all informed by the two female officers that Mr Motata did not want to cooperate and so they had to go to him and forcibly remove him out of the motor vehicle.

Upon being asked why there had been a need to remove him from the vehicle prior to his discussion being finalised had crashed into the wall of a particular know and noted that it could have been Mr

He added that Mr Baird and Mr Motata using words such as "F you". He asked heard when approaching the vehicle. H were the words were the words that he heard and that Mr Motata was seated in his car at the time. He repeated that he heard Mr Motata the swear words "F you'. He was referred to portions of his evidence in the trial-within-a-trial wherein he specifically mentioned that he did not hear any vulgar words.

Professor Michael James Steward testified that he used a process called back extrapolation, which was a system widely accepted by the learned authors such as Novac Jones Anderson and he arrived at a conclusion that the volume of alcohol in the blood of the accused at the time of the accident might have been between 0.23 and 0,26 grams per 100 mills.

He did not have the opportunity too verify the results of the analyst Mr Govender and his affidavit as read into the record was marked, Exhibit "K". He did agree with Advocate Dorfling and the strenuous cross-examination that his conclusion did not factor into the equation the fact that it was necessary to have regard to the time the accused last consumed liquor, the kind of food last consumed, whether the accused was a smoker or not, the body weight of the accused and whether at the time the blood was drawn it was still at absorption stage of the alcohol or it was at post absorption stage.

I have gleaned from Advocate van Zyl's heads of argument that he concedes that Professor Steward's evidence regarding the theory of back extrapolation does not pass muster in terms of his own concessions. To this end the state and defence are ad idem and I will not deal further with his evidence.

Mr Logan Govender was the analyst at the laboratory which received the blood from the Parkview Police Station. It is important to consider that arising out of Mr Dorfling's questions, particularly surrounding the worksheet that Mr Govender used having a Hillbrow Case number indicating that the blood specimen came from the Hillbrow Police Station, yet the case is recorded as a Parkview Case number.

It appears that whilst it was a Hillbrow CR number it bears a date indicating the case was registered in December 2006. He compiled a Section 212 affidavit which was marked Exhibit "L". Mr Govender also conceded that he did not receive the blood specimen on 2 March 2007 as indicated in the second paragraph of his report, yet he signs the report on 29 March saying exactly that.

He then corrected the position saying that it should have been 12 January. The polystyrene box containing the blood sample has since been destroyed. Govender further conceded that the alcohol levels may increase because of fermentation He also conceded that against the backdrop of time delay between the receipt of the blood sample and the actual analyses that the longer the period of time the greater the potential for alcohol to form.

He was referred to a letter from the manufacturer of the blood sample kit dated 16 August 2004 and was taken through the volume of blood in the sample. He then conceded that the air and the amount of the sample would affect the sample being drawn and that in turn would affect the analyses.

He stated further that he calibrated the measuring apparatus according to the standards obtained from the CSIR in March 2007 and thereafter Mr Dorfling took him through the various items under the calibration standards on Exhibit "Y".

It was then pointed out to him that there were discrepancies between the CSIR calibration standards that he was required to use and what he actually did use. He then conceded to incorrectly typing milligrams for grams per hundred millilitres in respect of the calculations on the standards.

He conceded in cross-examination that because he used the wrong density of water during the checking process the results could have been inaccurate and he also agreed that using the wrong density of water he then used the wrong volume of water and this may have an impact on the blood alcohol percentage.

At the laboratory the samples are accepted and he returns with a copy of the lab numbers. He explained how the CR number on the sample had the numbers /12106 at the end thereof.

The state also called Superintendent Ryan in an effort to convince the court to invoke the provisions of Section 186 of the Criminal Procedure Act. Once again the court received heads of argument and a full judgment refusing the request for the court to call such a witness.

I must mention that I gave a full judgment in respect of my refusal of the state application to call a witness, a mystery witness [‘Mrs X'], after which an application was brought for me to invoke the provisions of the Criminal Procedure Act for the court to call a witness.

The state also called Sifolane Samuel Telane an inspector at the SAPS Hillbrow attached to the detective branch. Who testified that he collected the blood sample in question on the morning of 9 January from the Hillbrow District surgeon's office and transported it to the laboratory.

It is so that during cross-examination he admitted that the labels handed in as Exhibit "52" reflect the CR number 0902474, they make no reference to December ‘06. Inspector Telane testified that he had simply made a mistake by adding 12/06 to the number.

The defence formally admitted in terms of Section 220 of the Act that Dr S Gazi, a qualified doctor employed by the Gauteng Department of Health, on 6 January 2007 drew a sample of blood at the Hillbrow Medical Legal Clinic as is set out in Exhibit "M". That in doing so he correctly executed the processes and the proceedings required to draw and seal a sample of blood.

Dr Gazi correctly placed the blood sample in the polystyrene box and correctly sealed it with seal number 8NA159299 as is set out in Exhibit "M". That Dr Gazi accurately completed and signed the inside and outside labels of the blood sample, Exhibit ‘S2" in the accused's presence and the accused then signed on both the labels.

Finally that the sample of blood drawn from the accused was not contaminated in any way whatsoever during the drawing and sealing thereof by Dr Gazi, until he placed it into a steel trunk for safekeeping.

By the conclusion of the state case the following exhibits were handed into the court:

Exhibit "1" was handed in during the trial-within-a-trial and is the disc containing the audio recordings and photos.

Exhibit ‘2" was a discovery made by the defence containing changes to the audio recordings as an example to be used during cross-examination.

Exhibit "3" was the brown envelope containing the cut seals. Exhibit "Al" to "A10" are the photos of Gleneagle's road.

Exhibit "B1" to "Bl0" are the photos of the scene of the accident ‘and the vehicle.

Exhibit "C" was the transcript of the audio recordings.

Exhibit "D" was the diagrammatic versions of the RAM to storage.

Exhibit "E" was the handwritten note containing the accused details, handed in luring the testimony of Mr Richard Baird.

Exhibit "F" was the state's heads of argument regarding questions put to witness during cross-examination and Exhibit "G" the defence's response thereto.

Exhibit H" was the [Motata's] business card.

Exhibit "J" the statement of Richard Baird.

Exhibit "K" the statement of Professor Steward.

Exhibit "L" was the section 212 statement.

Exhibit "M" was the statement of Dr Gazi.

Exhibit "N" was the affidavit by Paulina Mashilela regarding the threats made to her.

Exhibit "01" to "12" was a statement of Paulina Mashilela her A1 statement plus the consultation notes.

Exhibit P1" was the statement of Officer Madibo.

Exhibit "P2" was the statement of Mashego. "P3" the statement of Ramafemo, "P4" was the statement "01' Officer Mashilela.

Exhibit "Q1" was the medical report by Dr Cubash(?). Exhibit "Q2" the medical report by JR Manbrowned(?).

Exhibit "R" was the register of the laboratory for receipt dated 12/01/2007.

Exhibit "S1" was the lab worksheet, "S2" was the inside and outside labels of the blood sample, "S3" was the SAP21, the letter by the police to the laboratory.

Exhibit "T" was the second page of the SAP 384.

Exhibit "U" was the dilutive verification form.

Exhibit "V" was the printout by the analyst of the results. Exhibit "W" was the flowchart designed by Logan Govender.

Exhibit "X" was the first page of the SAP 384.

Exhibit "Y' was the letter to Attorney Marinus van Jaarsveldt containing the answers to further particulars.

Exhibit ‘Z" was the certificates of Standards used for analyses.

Exhibit "AA' was the calibration table and other information.

Exhibit "BB" was the article from the CRC handbook on Chemistry.

Exhibit "CC" was the hand drawn example of a graph.

Exhibit ‘DD" was a hand drawn example of a vial.

Exhibit "EE" was a complete list of sample results.

Exhibit "FF1" was Professor Viljoen's graph of DB Wax column.

Exhibit "FF2" was Professor Viljoen's graph of the BLC column.

Exhibit "GG1" and "GG2" was Mr Govender's list of the LC and Wax values.

Exhibit "HH" was the principle of data quality control and chemical analyses.

Exhibit "JJ" was the introduction to control charts in the analytical laboratory.

Exhibit "KK" was the statistics for the statistics for the quality control chemistry laboratory.

Exhibit "LL" was the harmonised guidelines for internal quality control.

Exhibit "MM" was the affidavit of Thalani.

Exhibit "NN" were the admissions in terms of Section 220.

Exhibit "00" was the control charts in the analytical laboratory data scrutiny paragraph.

Exhibit "PP" was the preparation of calibration curves.

Exhibit "QQ" were further comments on the misuse on the testing of the calibration functions.

Exhibit "RR" was the hand drawn graph regarding the BLC and DB Wax columns.

Exhibit "SS" was the registration of the offence document.

Turning to the recordings and the transcript. The court at the outset ordered a trial-within-a-trial to determine the authenticity and originality of the recordings which were captured on an I-Mate Jam cellular phone. I ruled at the end of the trial-within-a-trial that such recordings are admissible. It is trite that this is an interlockatory ruling by the court. In light thereof the court can reverse this decision at some later stage in the judgment.

What is important, however, is that it is still expected of the defence to raise some issues surrounding the recordings and at that stage, when I gave the judgment, mentioned that that had not been done. What was clear to the court, I said in my judgement after the trial-within-a-trial, was that the defence did not specifically dispute what the witnesses had said in respect of confirmations of all the recordings and that what was contained in the transcript, safe for a few sentences that required interpretation.

The defence at no stage mentioned to any of the state witnesses, for example that this did not happen in this manner or that matter. It was put to the witness that the accused has another version of events than that to which they confirmed before this court when the audio was played as correct and accurate. I think it would have been expected that where the evidence is alleged to have been manipulated or altered in some way the defence would have shown same in respect of the five recordings played out in court from the laptop.

This I have mentioned in my judgment and I am quoting extracts thereof after the trial-within-a-trial. I said further that I find that one would have expected that in the event of seamless alterations or manipulations that the court may have been alerted to the variance in the recordings and the transcript from the instructions to the defence as to what really happened that day.

I said further that at least to my mind a more visible challenge to the recordings could come to the fore and this did not happen. Further that the very reference by the defence to specific portions of the record in asking witnesses to explain words or delving into the intentions of the accused to my mind lend some credence to the issue of the accuracy of the records and to an extent the correctness of the transcript.

If the defence had challenged the authenticity of the recordings and the accuracy of the transcript it was not done in a manner that was patently clear for all to see. The witnesses have testified within the parameters, to my mind, of reasonable human error to the accuracy of the recordings and the veracity of the transcript.

To my mind the reliability of how the data was stored and communicated is not reduced where an individual did not deliberately caused loss or reduction of quality, assuming there was some invisible reduction. That there were words that were changed at different places, but minimally and the transcript Exhibit "C" was altered accordingly. The transcript itself I mentioned, is not evidence. It is only an aid to follow the recordings.

I said further that the recordings make sense. The sentences follow each other logically. There is no break in the recordings. The different recordings seem to end when a specific incident has been completed. I finally went on to add that all said I find the hurdle in respect of authenticity and originality, in other words quality and potential to reflect the events as they relate to the incident has been passed.

The court accepted the recordings made from the laptop, whilst not the original and best evidence it meets the requirements for admissibility on that score and also in respect of these recordings, of them being recordings of the events they purport to represent free of manipulation and alteration.

The transcript was read out to the witnesses who in essence agreed with the contents thereof as being in line with the audio recordings insofar as they relate to themselves and where they could identify others also. The transcript was also shown and recordings played for the police official, Ms Mashilela who referred thereto and agreed with some of the contents contained therein.

At the close of the state case the defence applied for the discharge of the accused on all the counts and as I have indicated earlier the court granted the discharge only in respect of the first alternative on the first count. When the court resumed the accused closed his case and the court thereafter heard oral and written submissions by both counsel for state and defence.

I turn to the version of the accused that was put to the different witnesses, more particularly by Advocate Dorfling which amounted to the following. It was put to different witnesses at different times in the state case that the accused denies that he obstructed the Metro Police in their work and that he refused to leave the scene without knowing where his keys were.

He denied that he resisted being arrested. It was put to Mr Baird that he will deny being drunk or under the influence at the time of driving his car. It was also said that the accused will say, if needs be that he drove his vehicle down Gleneagles Road and on approaching the end of the road the road was blocked off by a palisade fence. The only way out was to make a U-turn to do a turn around.

He could not without stopping and reversing execute a U-turn. He will say that as a result he had to reverse. While executing the reverse movement of his vehicle there was a car coming from the opposite side. He had to get out of the way which he did by reversing. He avers that he misjudged the distance to the wall and reversed through the wall. He denies having driven his vehicle recklessly or negligently.

It was put to Mr Baird that the accused was allegedly annoyed with the interrupting, interfering and passing of unnecessary comments by Mr Baird himself. It was also put on behalf of the accused that Mr Motata denied writing down the particulars on the handwritten note which was received, Exhibit "E".

In the heads of argument compiled by Advocate Tokota the defence describes Mr Baird as biased, unreliable, dishonest and who has concocted evidence has contradicted himself and above all is a racist. The argument advanced request the court to accept Madibo's evidence only as far as it corroborates the version that has been put on behalf of the accused.

The defence will further have it that the blood chain was incomplete. Professor Steward's evidence has to be rejected in toto and that Mr Govender had admitted to making several mistakes. It was further averred, among others, that there are some material aspects that were not recorded by Mr Baird and further that there was something unpleasant that Baird had said to the accused which even made Mr Melk uncomfortable to the extent that he asked Baird to leave the man alone.

It was further averred by the defence that Professor de Jongh, by virtue of his experience in the IT industry was able to say the following, and I quote: You can edit and change the content and still retain the same properties on the file you have manipulated. So the gravamen of the defence's argument was also that it is easy to manipulate evidence that is kept in a computer, like audio recordings downloaded by Baird, including down loaded photographs.

The onus of proof in a criminal trial rests on the state, in the decision of Trainor 2003 (1) SACR 35 (SCA), Nafsa JA stated the following, and I quote:

A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether the evidence is reliable the quality of that evidence must of necessity be evaluated as corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety. A compartmentalised and fragmented approach is illogical and wrong.

In the decision of Tsabalala 2003 (1) SACR 134 (SCA) Heher AJA stated and I quote:

The trial court was very much aware that the case turned on the reliability of the complainant's identification of the appellant. It was also conscious of the shortcoming in the evidence relating to the parade. The magistrate did not misdirect himself in finding that because the appellant was before the court and not sergeant McKiba it was obvious that he must have been the one pointed out by the complainant. This was the sensible inference, but not the only reasonable one, which was one that should have concerned the magistrate.

In S v Van Aswegen 2001 (2) SACR 97 (SCA) it was stated that:

The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of the inherent strength and weaknesses, probabilities and improbabilities on both sides and having done so to do decide whether the balance weigh so heavily in favour of the state as  to exclude any reasonable doubt about the accused's guilt. The result may prove that one scrap of evidence or one defect in the case for either party was decisive, but can only be an ex post facto determination and a trail court should avoid the temptation to latch onto one obvious aspect without assessing it in its full context. Once the approach is applied to the evidence in the present matter the solution becomes clear.

I maintain that it is not my function again, as I have said when I refused the application for a discharge in terms of Section 174, to determine who initiated any argument and what led to provocation on the part of either Mr Baird or Mr Motata. In this matter I am concerned with the evidence placed before me that proves or disproves that the accused was intoxicated when he drove the vehicle.

Of course no one saw the accident happened and therefore I will have to make such conclusion, if I can, or the evidence allows by inferential deduction. I have ruled admissible after the trial-within-a-trial the recordings contained in Exhibit "1" for the reasons that I have mentioned in my judgment.

I have also ruled admissible the photos marked Exhibit "A' and "B". I have heard oral evidence of witnesses, I have received formal admissions made by the defence in respect of the correctness of the procedure in the drawing of the blood by Dr Gazi.

The recordings were made while the accused was in the car after the incident. The accident occurred at around 00:15 to 00:20 and the accused's blood was drawn after 03:00. The fact remains that in the first hours after the accident the recordings show the accused in the car and he did not leave the scene.

I have heard the recordings on more than one occasion and the recording, after they were played out on more than one occasion and even at different stages and even during cross-examination, form part of the record. What can be heard together with the photographs stand at this point.

The accused's voice can be heard in its tone and manner. The accused's words can be heard and the nature of his conversations and utterances are also to be heard and are being typed out in the transcript which has served as an aid to everyone, including the defence, and used in their heads of argument.

One cannot ignore the photos handed in as Exhibits, one cannot ignore what the accused has said in the audio, how he said it and what he appears to look like in the photographs. That remains, even if there are other problem areas.

Turning to the record and the audio. During the trial-within-a-trial Mr Motata can be heard saying "F you" at least ten times. On page 8, lines 21 to 23 of the transcript he can be heard saying to police officer Ramafemo: "I would say F you too" To which Mr Baird replies: ‘He was speaking to a police officer". In response to which Mr Motata says: "Yes, It is a police officer. I do not want to be insulted".

He can be heard to say, as is recorded on page 14 lines 15 to 17 of Exhibit "C": ‘I say if I got into your wall, in your wall, whether I am drunk or sober I have got to pay". I have now considered the recordings and the transcript in different stanzas. I observed clearly on the first recording 01:28, that it is difficult to follow Mr Motata's reasoning in the conversation. For example where the conversation focused on Mr Melk being in senior management the accused started speaking about a senior messenger.

On a statement by Mr Richard Baird on the audio recording as typed out in the transcript: "Whoa, careful, do not fall over. You cannot even stand straight". Mr Motata does not immediately respond to the assertion.

The second recording, 01:48 is repeated swearing and it also appears a confirmation that Mr Motata was speaking to the police woman while swearing. Mr Baird is clearly heard requesting the police woman to rush and draw blood and if anything, they agree with him.

On the third recording, 02:09, there is a lot of focus on the keys for the vehicle and comments surrounding the word "boers". There appears to be a lot of pleading to try and settle the matter and a voice can be heard reassuring Mr Motata that his keys are safe.

On the fourth recording a lot centres around Mr Motata's utterances: "Not that I am either drunk or sober", but his willingness to pay: "I have knocked your wall, whether I am drunk or not". Mr Motata repeats "Whether I am drunk or not I have to pay". He then says a third time: "No-no, I am not changing. I say I get into your wall, in your wall, whether I am drunk or sober one thing remains is that I have got to pay".

The last recording centres around Mr Baird giving'a running commentary that Mr Motata refuses to cooperate and I observed and took note of the fact that Mr Baird in the last recording appears to be deliberately giving some kind of running commentary insofar as what is happening, unprompted.

But Mr Madibo can be heard saying: "What kind of old man are you" to Mr Motata: " who does not want to think". Ms Mashilela is recorded as saying to Mr Motata "You are behaving like an illiterate". The recordings indeed do not cover the entire incident, but I agree with Advocate van Zyl, that they do not have to.

In respect of the accuracy of the transcripts and the accuracy of the recordings Mr Melk, Ms Ramafemo, Ms Mashilela all confirmed the accuracy of the Sotho translations as well.

The bottom line of the state's case was that the accuracy of all the recordings had been proved. All the speakers had been identified. It has been proved that the recordings had not been tampered with. The transcript has been altered in a few minor respects and I have shown to be reliable.

Mr van Zyl argues that it has been shown that the state has provided the best available recording. The recordings clearly relate to the occasions to which it is alleged they relate to. In this regard he has referred to, and I endorse that the cases are applicable:

S V Vey 1968 (1) PHH 49 (A). S V Berman 1957 (1) SA 433 (T), S V Ramgobine and Others 1986 (4) SA 117 (N). S V Corraleve and Another 2006 (2) SACR page 298 (N) at 305 F - I, S V Niewoudt 1990 (4) (SA) 217A at 231 C - D and 238 G - J, S V Baleke and Others 1986 (4) SA 1005 CT) at  1024 H and 1025 F.

The court has had the opportunity to listen to the audio recordings on more than one occasion and I am in agreement with the sentiments echoed by Advocate van Zyl on page 131 of the heads of argument, to the extent that it does indeed provide a unique opportunity to the court to actually hear what was happening at the scene of the accident shortly after the accident had occurred.

My assessment of the audio recordings is, having found them to be admissible and in evaluating same I am able to state the following, and conclude that there indeed were racial slurs, derogatory language, the reference to "F you" on at least ten occasions is clear from the audio recordings. That the speech of the accused was drawn out and laboured and he stumbled over his words.

The fact that his word construction was inadequate is also set out in the transcript and can be heard on the audio. There is also proof of drawing out of certain words in a very different fashion from a normal person. There are occasions where indeed his sentence construction was inadequate. Some of the answers that he gave, to my mind, do not make sense on the scene.

There are occasions when the voice tone and the volume of the accused changes to loud shouting, then toning down. There is confirmation that the accused alighted from his vehicle as can be seen from the transcript and heard on the audio.

Clearly indeed it is evident from the audio recordings that the tone of certain individuals speaking around the accused was certainly of trying to get the accused to cooperate. This is in contrast with the tone, the volume of the manner in which Mr Motata's voice appears on the audio recordings that were downloaded from the cellphone to the computer.

If you look at Exhibit "B" photo 3, it is clear, my observation is of a man who appears to be asleep at the wheel. Head sagging forward, oblivious to his surroundings, Photo 4 is clearly Mr Motata, but not Mr Motata that I have seen in this court no less than 25 times.

I accept the audio recordings and the photos contained in Exhibit "B" to be admissible and attach the necessary weight to them that they represent accurately what they intend to. The recordings form a concrete edifice on which all other evidence has been built.

During the audio the following can be heard, there are numerous references to the word "boers" and if I turn to an analyses of Richard Baird's evidence my observation speak to an individual being called from his house in the dead of the night and finding a vehicle crashed into another property.

He spoke confidentially, assertively. He faced cross-examination also in a confident manner, spontaneous manner. He was able to articulate himself and he focussed on the questions and consistently maintained his version.

Mr Baird describes the language of the accused as Mr Motata spoke to be very "colourful'. There were racial slurs and derogatory language, his word construction were inadequate. There were illogical arguments. He had a glazed look on his face. He had a look in his eyes that they were swimming. He smelled of alcohol. He could not stand up without holding onto his car.

He was holding on, uncertain, trying to grab onto steadiness as if a blind person would want to search in front of him. In my opinion, according to Baird, he was drunk. He just fell over, caught the car, I do not think his knees touched the ground then. There was a time when he got out of the car, he was unstable and fell over. He caught himself on the car.

He believed that the accused was drunk because of the way he had handled his motor vehicle, having crashed through the wall in a reverse direction. His version is to an extent supported by Ms Mashilela and Mr Madibo, by their admissions in respect of the audio and the transcript. Let alone their testimony in respect of their evidence in this court.

There are indeed areas where there are contradictions, minor contradictions between them, but not material to reverse any issue on credibility. Mr Baird's evidence is corroborated by the audio and the photographs. The audio recording ties in with the words that were uttered and the audio recording, as I have said, stand as a concrete mass, unchallenged and unviolated in any material manner.

I hold the view that Mr Baird could have packed up more, could have added more, could have recorded more and he had opportunity to do so if he wanted to doctor he could certainly omit some of the thing at seems to favour Mr Motata. But he agreed with Mr Dorfling on more than one occasions with issues that were favourable to Mr Motata.

There certainly was a problem with Ms Mashilela in respect of the change of direction in her testimony. I clearly noticed at some point in time she sought to change the path of the ship is which she was travelling. Indeed, her statement was during re-examination and she questioned on the change from her statement as can be seen. Her answers were not very convincing at that stage and I am left with the feeling that this witness at some stage changed her direction.

Examples are on a question as to why she specifically used the word balancing, she responded by saying: "I am saying that because they were not listening to him, as he was still trying to argue his issue over the keys but they were not listening to him", On a question: "Did he come out of the vehicle?" she says not yes, not no, she responds by saying "He was still angry as he was seeing that his things were not coming right. He was fighting as he was fighting with the owner of the house".

I am mindful of decisions such as S v Jockums 1991 (1) SACR 208 (A) where Milner JA stated and I quote:

Thus if a good witness is contradicted by an indifferent one there is no reason for rejecting the former. No adverse findings of demeanour were made against the appellant, nor was it suggested that there was any inherent improbability in his version of what occurred on the night in question. Be that as it may the trial court was obliged to consider the evidence as a whole and such defects as there may be in the evidence of the appellant do not materially assist the state in discharging the onus if the evidence of the state witnesses relied upon by the trial court is open to serious criticism.

In S v Mtetwa 1972 (3) SA 766 (A) it was said that:

Because of human frailty, fallibility the reliability of the observation made by the identifying witness must be tested. The trial court must therefore consider, inter alia, the opportunity for observation both as to time and situation, the extent of the witness's prior knowledge of the accused and the accused's appearance. It goes without saying that where as here the accused has no legal representation the judicial officer has no alternative but to seek within the constraints of his functions as an impartial arbiter, to conduct the necessary testing himself.

So clearly from our case law, as I have quoted, indeed there will be situations where contradictions find themselves coming to the fore. It is for the trial court and for the court to evaluate what weight to attach to the contradictions against the case law that I have mentioned. I am also alert, as I have on many occasions pointed out during this trial that a criminal trial is not a game and the function of the presiding officer is not simply that of an empire.

The evidence that I have received in edition to the oral evidence includes the recordings on the cellphone as accepted in the trial-within-a- trial.

I am compelled to turn to the accused's decision to remain silent. In certain instances the failure to give evidence by an accused person may be taken into account against him. That was mentioned in R V Dube 1915 (A) 557, again in S V van Wyk 1992 (1) SACR 147 (NM). But it is a factor which should not be pressed too far. There is no obligation on an accused to testify, but if he does not he runs a risk.

If the case against him is tenuous he may not expose himself to any appreciable risk if he does not give evidence. This was mentioned in S V Ramakala and another 1990 (1) SACR 300 (A). In S V Manamela and Another 2000 (1) SACR 414 (CC) paragraph 35 the court affirmed that, and I quote:

The right to remain silent, like the presumption of innocence is firmly rooted in both our common law and statute and is inextricably linked to the right against self incrimination and the principal of non compellability of the accused person as a witness at his or her trial.

In S V Bussak 2001 (1) SA 912 (CC) Justice Langa DP, as he then was, speaking for the court pointed out that:

the right to remain silent has different applications at different stages of the criminal prosecution. On arrest a person cannot be compelled to make any confession or admission that may be used against him or her, later at the trial there is no obligation to testify. The fact that he or she is not obliged to testity does not mean that no consequences arise as a result. If there is evidence that requires a response and no response is forthcoming, that is if the accused chooses to exercise his right to remain silent, in the face of such evidence the court may in such circumstances be justified in concluding that the evidence is sufficient, in the absence of an explanation to prove the guilt of the accused. This will of course depend on the quality of the evidence and the weight given to that evidence by the court.

The fact that no evidence has been led to rebut the state's case does not mean that the accused must be convicted. The issue whether the state has proved its case beyond a reasonable doubt, this was highlighted in S V Hennah and Another 2006 (2) SACR 33 (SE).

Recent decisions of our courts of higher authority have set the trend, Bussak, Tsabalala, Tandwa, Mvenini unreported Supreme Court of Appeal case number 224/08, 1 December2008 states:

That a court in appropriate cases are entitled to draw an adverse inference against an accused who fails to testify or adduce evidence where he or she has a case to meet. The result is that the accused's silence may well have the effect of raising what was a prima facie case against him to a level of proof beyond a reasonable doubt.

I also turn to the maxim or the expression res ipsu loquitur. According to Rumpff in Groenewaldt V Conradi 1965 (1) SA 184 (A) at 187 the above mentioned expression, which also means the facts speak for themselves, is used in our law when evidence is led in court about an event and the court is asked to draw an inference concerning its course from the picture painted by the evidence.

According to Zefford Et Al, South African Law of Evidence, at page 201: "If an accident occurs in a manner which is unexplained but which does not ordinarily occur unless there is negligence the court is entitled to infer that it was caused by negligence.

When it comes to the statutory offence of driving under the influence of alcohol, as a result of the fact that there is not always evidence to describe the condition of the accused precisely at the time of his driving the court has to draw an inference from the circumstantial evidence, in which case the cardinal rules of logic as set out in Blom 1939 AD 188 are applicable, and these are as follows:

"The inference sought to be drawn must be consistent with all the proved facts, if it is not the inference cannot be drawn. The proved facts should be such that they exclude every reasonable inference from them save the ones sought to be drawn, if they do not exclude other reasonable inferences then there must be doubt that the inference sought to be drawn is correct".

What is required for compliance with the offence driving the motor vehicle under the influence of intoxicating liquor is the following, and I refer to S v Binta 1993 (2) SACR 553 (C) at page 558 I. The court indicated that

"Should the driver's muscle control and power of judgment be affected he is under the influence. The appellant's disorientation as to time and place are indicative of a person whose mental faculties are impaired. His lack of control of his vehicle, his gate and his impaired speech are indications of a person whose muscle control is beyond the point and his aggression and indication of emotional impairment. Taken cumulatively they prove beyond reasonable doubt that the appellant's mental, physical and emotional capabilities were so detrimentally affected by alcohol that he was incapable of driving his motor vehicle with the required skill, care or judgement.

That is what is required as set out in S V Binta.

I am also guided by the fact that if a driver admits that he consumed liquor or that a witness testifies that he smelled liquor on the breath of an accused or if alcohol was found to be present in the blood of an accused these factors would normally constitute prima facie proof. The accused can then advance other reasons for the presence of the symptoms.

I need to be satisfied that the skill and judgment normally required of a driver in the manipulation of a motor vehicle were diminished or impaired as a result of the consumption of alcohol.

On the issue of the opinion of a layman, or lay person in the Brauson decision 1949(2) SA 189 (T), as is in this case, Mr Baird being a lay person:

Where it is accepted that together with the opinion that regarding identification the admissibility of the opinion of a lay man in respect of the condition of a person is generally acknowledged.

I am aware and take note of the fact that Mr Baird on certain issues is a single witness and of course there has to be that degree of caution with which I must approach his evidence as per the provisions of Section 208 of the Act.

When I look at the evidence that has unfolded before me and I find that the evidence in this matter in the following sequence lends itself to the consequent views that I hold. The evidence that I have are the photographs as contained on Exhibit "B", specifically photos 3 and 4, the audio recordings together with the transcript, read as a tool to amplify the recordings, which I have now also finally accepted in the absence of anything else from the accused.

I accept the evidence of Mr Baird together with everything else I have said, including the fact that the accused has remained silent. I must therefore accept the handwritten note and accept that Mr Baird's testimony is that Mr Motata wrote on that note in that fashion, where some of the letters do not spell out words correctly and numbers are written incorrectly. I accept that Mr Motata wrote on that handwritten note and gave same to Mr Baird. I have also the portions of the evidence of Mr Madibo and Ms Mashilela which corroborate Mr Baird's testimony.

What is also of importance to me in this matter is the accident, which remains a mystery. It is a single car accident, as Mr van Zyl has pointed out, in the dead of the night. The question remains, why reverse over a pavement, right through a garden wall when there are driveways on that road into which you could reverse.

I must add that there appears certainly to be an element of provocation prior to the recordings. Mr Motata's answers speak of a level of anger, the tone of his voice as is in the audio, which does not support a scenario of an unprovoked individual.

There is also clearly a trend in the audio recordings, as supported by the transcript, by Mr Motata to try and settle the matter. Admissions to the extend that he would pay for the damage to the wall and admissions to the extent that he want to settle the matter, and it not being a question of whether he is drunk or not.

I find that much of what the witness has testified about in respect of the accused's voice, manner of speech and uncooperativeness is born by the corresponding sections in the audio recordings which are on Exhibit "1" and as can be read on the transcript. I am asked therefore to infer if the accused at the time of crashing his vehicle into the wall, was under the influence of intoxicating liquor or a drug having a narcotic effect.

I am satisfied that Mr Motata's proven speech impairment, physical impairment, mental impairment and general conduct shortly after the accident were such coupled with the spelling mistakes and inaccuracies in the handwritten note, that the only reasonable inference is that he was indeed under the influence of intoxicating liquor at the time that he drove the vehicle and collided into the wall.

I make this finding also when I look at the question of probabilities. If this accident had happened shortly before 00:20 and there are audio recordings within an hour of the accident the probabilities to my mind appear to be the following with regard to expected normal behaviour.

A driver makes an accident. Vehicle collides into the wall. He would immediately alight from the vehicle, inspect the damages, engage with persons in the immediate vicinity and seek in an orderly fashion the settlement of the matter. This clearly did not happen at all from any perspective.

It begs the question, how would somebody have the kind of liberty to take photographs of a person if you were upright, firm, steadfast and alert rather than slouched, slump, appearing to be sleepy or slumbering. You would not say." Whether I am drunk or not, I want to pay". One would say: "I am not drunk, I have not been drinking, here are my details, what are yours."

I do maintain that I cannot find myself of like mind with Advocate van Zyl's argument in respect of the proof of the presence of alcohol in the accused's blood. There were numerous inadequacies which led me to acquit the accused at the end of the state case when it came to the blood alcohol, and I maintain that view even now.

In order for me to convict an accused person on a charge of defeating and obstructing the ends of justice I am guided by the definition thereof. If you look at Hunt, South African Criminal Law and Procedure it is defined as follows:

"Defeating or obstructing the cause of justice consist in unlawfully doing an act which is intended to defeat or obstruct and which does defeat or obstruct the due administration of justice."

I understand the legal position to be one that one must subjectively have foreseen the possibility that one's conduct might defeat or obstruct the administration of justice, Hurshorn 1934.TPD 178 at 181.

I cannot on the evidence find that the accused had the intention to hinder and/or obstruct the ends of justice. I rather find that the accused by virtue of his intoxicated state was more difficult in quarrels. It does not appear from the evidence at all that the accused had the two hour presumption as contained in the Act, at the top of his head.

In order for me to be satisfied that the accused is guilty of the alternative to count 2, resisting arrest, Section 67(1)(a) of the Police Services Act, 68 of 1995, which reads as follows:

"Any person who resists or wilfully hinders or obstructs a member in the exercise of his or her powers or functions or in the exercise of his or her performance of his duties and functions shall be guilty of an offence".

According to the learned author Milton, South African Criminal Law and Procedure, Volume 3, Statutory offences the words Resist, hinders or obstructs" means the following:

"It is submitted that the words ‘obstructs, hinders or interferes' should be read ustum generous and involve substantially similar considerations".

I have given serious consideration to this particular count and once again I cannot find the criminal intent required for a conviction on this count. More importantly is the lack of consistency on the part of the police officials in respect of the explanation of the accused's rights. Each would have it that the other explained the rights and that is certainly not clear to me. I cannot even find myself of like mind with Advocate van Zyl's contention that because the accused is a judge he ought to have known he is being arrested and therefore it should follow that the prerequisites as set out in that section had been complied with. I do not agree.

Mr Motata, I find that you were under the influence of intoxicating liquor at the time that you drove this vehicle when it crashed into the wall of the property belonging to Richard Baird. To my mind if a picture tells a thousand words, as the saying goes, then audio recording such as this one tell ten thousand more.

You are CONVICTED ON COUNT 1, the main count. You are acquitted on all the remaining counts.

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