CASE NUMBER: SH/B75/2005
DATE: 3 APRIL 2006
PROSECUTOR: Case Number SH/B75/2005 the State versus David Paolo 3 April 2006 Wynberg Regional Court A Presiding Officer: Mr. J Redelinghuys, Prosecutor: Ms H Olivier, On Behalf of the Defence: Mr. I Murray, Interpreter: Mr. S Da Costa. Permission to put the charges to the accused your worship?
COURT: Please do.
PROSECUTOR: Count 1, a count of murder the State versus David Paola you are charged that you are guilty of the crime of attempted murder in that upon or about 29 January 2005 and at or near Guguletu in the regional division of the Western Cape the accused did unlawfully and intentionally attempt to kill Felix Furtak a mail person by hitting him with an iron bar on the head, nose and the chest.
COURT: How do you plead to this charge?
ACCUSED PLEDS NOT GUILTY TO COUNT 1
PROSECUTOR: Count 2, malicious injury to property you are being charged that you are guilty of the crime malicious injury to property in that on or about 29 January 2005 and at or near Guguletu in the Regional Division of the Western Cape the accused did unlawfully and intentionally damaged (indistinct) motor vehicle the property or in the lawful possession of Felix Furtak with the intent to injure him in his property.
COURT: How do you plead to this charge?
ACCUSED PLEADS NOT GUILTY TO COUNT 2
PROSECUTOR: Count 3, the State versus David Paola you are being charged intimidation in that you are guilty of a crime of contravening the provisions of section 1 (1) A read with section 2 and 3 with the intimidation act 72 of 1982 intimidation in that on or about 24 July 2004 and at or near Woodstock in the Regional Division of the western Cape the accused did unlawfully and with intent to compel or induce any person namely Felix Furtak to do or to abstain from doing any act or to assume or abandon any standpoint to wit to release a certain namely Pat Mkona by assaulting, injuring or causing damage to such person or threaten to kill, assault, injury or cause damage to such a person. There is also an alternative to this count your worship.
COURT: How do you plead to this charge?
ACCUSED PLEADS NOT GUILTY TO COUNT 3
PROSECUTOR: The alternative to count 3, one of assault you are being charged that you are guilty with the crime of assault in that upon or about 24 July 2004 and at or near Woodstock in the Regional Division of the Western Cape the accused did unlawfully and intentionally assault Felix Furtak by threatening to kill him and to burn his house down.
COURT: How do you plead to this alternative charge?
ACCUSED PLEADS NOT GUILTY TO ALTERNATIVE CHARGE
MR. MURRAY: I confirm my appearance on behalf of the accused, I confirm that the accused’s pleas in connection with counts 1, 2, 3 and the alternative count are in accordance with my instructions. It is my instructions that the accused elects to not disclose the basis of his defence as well as answers questions at this stage as it pleases the court.
COURT: No admissions are then recorded you may be seated during the trial. Miss Olivier please proceed.
PROSECUTOR: As the court pleases the state will then call Felix Furtak.
EVIDENCE ON BEHALF OF THE STATE
FELIX FURTAK: d.s.s.
EXAMINATION BY PROSECUTOR:
Mr. Furtak can you tell the court do you know the accused before court? --- Yes I do know the accused.
Can you just please tell me how you know the accused before court? --- The accused is the boyfriend of my ex-wife.
And we are here today because you lay two separate charges against the accused is that correct? --- Yes.
Can you please tell the court beginning with the one earliest in time what that charge is that you made against the accused? --- It was a charge of intimidation that happened on
24 July 2004.
And on that specific day please tell the court what happened? --- I was sitting in my office or in my home I work from home number 3 Plain Street in Woodstock and at the same time there was also present my friend Mrs Molly Allison who was also in the house. It was sometime in the day time maybe around lunchtime.
Yes. --- Then I received a telephone call and I could hear that the accused was calling me or talking to me.
How did you at that stage know that it was the accused talking? --- Because I know him for many years and therefore I do know his voice.
And what did the accused say to you on that day? --- The accused told me that I must not mess around or release or let go of his girlfriend which he was obviously under the understanding is his property or whatever you want to call it and otherwise if I do not actually fulfil his demands he would come to my house and I remember clearly that he said that he will come with a knife and fire or fire and a knife.
When he said that to you what did you understand was he going to do to you? --- I know from the fire obviously meaning setting my property alight which is quite obvious and to come with somebody with a knife is obviously with the intent of doing bodily harm to them which I found quite obvious.
And I just want to clear one thing up this girlfriend of his can you please tell the court what her name is? --- It is Mrs Petronella Zanella Mkona.
And when he told you that what did you do then what happened thereafter? --- I realised obviously that I would only have a case if I have a witness of intimidation. Luckily I had a telephone with a speaker facility and that my friend Mrs Allison was nearby. Then I went to call Mrs Allison and switched on the loudspeaker facility of the telephone and I asked the accused if he could please be so kind and repeat what he had said. Now at the time the loudspeaker was on and Mrs Allison was present and the accused repeated I will come to your house with fire and a knife.
And then what happened next? --- Then as far as I am concerned I had, the case was closed then I put the phone down. I cannot recall actually whether the accused hung the phone up first or I hung the phone up first but the conversation was ended and both myself and Mrs Allison then subsequently went to Woodstock Police Station to report the case of intimidation.
At that stage did you feel threatened by the accused’s words? --- Yes.
You say that you have known the accused for quite some time now do you have regular contact with the accused? --- I have not necessary regular personal contact but my wife obviously gave me most of the accounts of the accused’s life that I know.
Did you ever discuss this incident with the accused after that date? --- No.
Tell me the second charge that you made against the accused can you please tell the court about that? --- This was now on 31 January 2005. At that day my ex-wife then ex-wife’s brother had died in a tragic car accident and there was a funeral on that Saturday which was 31 January. Myself and my wife’s first son we went together with my motor vehicle from our home in Woodstock to NY89 in Guguletu. NY89 is the residence of the Mkona family where my wife originally comes from. When, we arrived there early because for a funeral you are supposed to be early so I think it was quite early like 08:00 in the morning. At the time everybody from the family which includes my ex-wife and the sisters, brothers most of the family were all there and present but we were told that the funeral was cancelled for various reasons. Because I had already taken the day off I was under no pressure to leave the place and I decided to spend some more social time with the family also that the child my foster child can actually see his family and play with the friends. Then I would say maybe about 09:00 or 09:30 the accused entered the house. Because obviously through the problems with the marriage and the boyfriend and whatever and the family involvement the situation grew very, very chilly and nobody said anything because it was already at a stage the time over the fighting over the marriage was over I mean we were already divorced. So Mr. Paola entered the house and demanded my ex-wife to follow him. While he waiting outside my ex-wife was trying to pack her clothes she was extremely nervous and took a long time to pack her bag of clothes because she was obviously afraid of what was going to happen. Then the accused, my ex-wife and her second child disappeared to their shack in Philippi where they had their residence. Then I remained in the house while Tando because my child was playing outside, I remained with the sister in this specific case Lindiwe Mkona remained drinking coffee and talking about the weather and avoiding any critical subject so we were just enjoying ourselves casually with coffee. So the morning passed and I can be corrected now at maybe about 12:00 I heard a shouting from outside where somebody said: “Felix your car”. From the way it was said I could already see that there could be a problem because I had threats before and I knew that I was potentially at risk. So I ran out immediately and I saw the accused running away from my car when I saw him he was approximately maybe 2 metres away from my car, him running away from my car. I also realised that moment that the person who was warning me was Boetie Mkona another member of the family. I saw that all windows and that means all the glass of the car was smashed as well as various chrome beadings and accessories. Instantly I tried to chase the accused in order to safe keep him in order to be able to press charges against him. Instantly I had a very big blow on my head which at the time I fell to the ground but I managed to somehow get back on my feet again and continued pursuing the accused and I had then successfully within seconds, everything happened within seconds, I managed to grab the neck of the accused and then I brought him on the ground. I immediately ordered the family members who were immediately present and I instructed the older sister of the family Mrs Charmaine Mkona to please call the police.
You said that you felt a big blow to your head. Do you know were you hit by the fist or..? --- No I was, later on I saw that the accused had a very big steel iron bar maybe approximately 50 centimetres long in his hand together with other weapons which I saw on his body which included a bottle of acid which the accused I know previously used, a bottle of petrol and a knife and I have seen all these items on the accused.
Do you recall how many times you were hit by the accused? --- I do not recall how many times only later examination by the doctor found a big laceration on the head about 5 centimetres long, it found the nose not broken but the nose injured and only three days or four days after the incident after I got considerable pain in breathing and got very sick, subsequent examination found a broken rib on this side.
Can you please tell the court which side of your body which rib was broken? --- Here.
COURT: The left side is shown.
PROSECUTOR: At the stage you went after the accused did you have any weapons with you? --- I had no weapons at all nor did I used my fists all I intended is to prevent the accused from running away.
You also mentioned that you saw that your windows of your car were broken at this stage. Can you please tell the court what kind of a car is that? --- The car is a Lancier (indistinct) GTE that is a vintage Italian vehicle 1969 and which is the only one in, of that model in South Africa.
Can you please tell the court what do you do for a living? --- I run the Lancier Services CC I do services and restoration and parts for vintage Lancier motor vehicle and this business started out of a hobby a passion of mine because I am a collector of these vintage motor vehicles.
So would you be able, position to tell the court what the damage to this vehicle was? --- The damage to the vehicle is unfortunately (indistinct) because spare parts are not regularly available on the open market however I am specialised in dealing with these parts I have so far found all the side windows which are back in the vehicle I am still waiting for windscreen and the rear window which if I am lucky I will find somewhere in the world so I will eventually hopefully be able to get the car back on the road.
And the side windows that you had now replaced what did you pay for them? --- Because that comes from my own stock so I took it from my own business. I gave, you are in possession of a document where I have roughly estimated the repair costs of the vehicle to be around R12 000,00 or
R13 000,00 which is rather hypothetical but it is just to give some indication.
You mentioned that Boetie Mkona was the one who initially called you? --- Yes.
Did you see him outside? --- I saw him outside yes. He was in the house next door.
And are you still in contact with the Mkona family? --- No currently because of various other problems I am not in touch with the Mkona family anymore.
Your worship with the court’s permission I would just like to refresh the witness’s memory regarding the dates of the incidents. Mr. Furtak I am going to hand you a document which was signed by yourself as well as a commissioner of oaths if you could please just verify that that is your signature? --- It is in fact the document that I have drafted myself and had it certified that is correct yes.
So you certify that, that is exactly what you told that person on that day? --- Sorry I said the 31st the date was the 29th I apologise it actually happened on the 29th.
If you can just give me the full date on which the incident occurred? --- 29 January 2005.
After this incident occurred you mentioned that you brought the accused under control. What happened thereafter? --- What happened thereafter obviously a big commotion occurred because I mean how can I put it in a, (indistinct) malunga and quera quera a fight about a woman it is rather a novelty so there were obviously hundreds of people around and none of them particularly liked the accused so people started stabbing not stabbing but kicking and otherwise attacking the accused because they finally found they (indistinct) some justice of the people would be done. I actually tried to protect the accused from further attack by other people. He was also attacked by other members of the family who also had grudges against him but I did actually tried to protect him to keep his body intact sir.
Did you at any stage seek medical attention? --- Yes obviously there was, emergency medical people were there who attend to me who put the bandage around and I was obviously told to go to the government hospital in the township which I did not find a good proposition so I eagerly took myself with the broken motor vehicle to a private hospital in Kenilworth where I had my injuries attended to. I immediately had to go back to Guguletu police to report the case.
What kind of medical attention did you receive at the private hospital? --- At that stage the laceration on the head which I was about 5/6 centimetres long which I considered quite severe which was on the head who was stitched up and the nose was stitched up because the broken rib was only found on a subsequent examination three or four days later.
And after this incident occurred have you had any personal contact with the accused where you contacted him or…? --- I had the last contact with the accused I had about two weeks ago when he actually called me on the telephone but I did not have any physical, I have seen the accused in court here obviously on numerous occasions I saw the accused in court but I have not met him outside of court.
And did you at any stage give the accused any right or permission to assault you or to hit you? --- Most certainly not.
Thank you your worship I have no further questions.
NO FURTHER QUESTIONS BY PROSECUTOR
CROSS-EXAMINATION BY MR. MURRAY:
Mr. Furtak perhaps you would confirm that on 9 February 2006 you were in attendance as a witness at court is that correct? --- On the 9th …?
Of February 2006? --- Yes that was the last appearance.
The last appearance that this court sat am I correct? --- Yes.
Mr. Furtak would you like to relate to relate to the court an incident that happened on the steps of these courts on that particular day when you left the precinct of this court? --- May I kindly ask the court and the prosecutor whether this incident in fact relates to our case because there was in fact an incident which is an incident all by itself and unless I am told so do not know whether it actually relate to our case presently.
Mr. Furtak I put it to you that you made certain threats on the last appearance in court. I am giving you now an opportunity to relay the events or put your version before the court alternatively the defence will then seek to call a witness to give their description. --- May I ask the court do I have to answer to this?
COURT: The relevance of this Mr. Murray?
MR. MURRAY: Your worship the relevance of it unfortunately it is an aspect that occurred I am not in a position to obviously relate to myself. I can and I do intend calling witnesses. It will reflect on the state of mind of the accused as it pleases the court.
COURT: But how would the state of mind on 9 February now impact on the charges that were laid several months ago?
MR. MURRAY: I could leave that question I will then withdraw that question at this stage and perhaps develop it at certain at a later stage as it pleases the court.
COURT: Sure you are welcome.
MR. MURRAY: Now Mr. Furtak just to get your relationship sorted out here you say that the accused you knew him because he was the boyfriend of your ex-wife? --- That is correct.
Your girlfriend is Petronella Mkona is that correct? --- No she was never my girlfriend I was married to her.
Was your wife? --- She was my wife I was married to her.
Could you tell the court when you divorced your wife? --- We got married in May 2002 and we got divorced one and a half a year later that must have been September 2004 then. That was one month before my wife’s second child was born.
In September 2004, you divorced your wife in September 2004? --- Yes but I stand under correction but it can be easily verified.
Do you have the documentation? --- I do have the documentation.
Now were there any children born of the marriage? --- No.
You mentioned the first incident if I may call it that is the one relating to alleged intimidation. You mentioned the second where you were allegedly assaulted. You mentioned that you were in the company of your ex-wife’s child is that correct? --- On the second incidence yes that is right not in the company but he was playing outside but he was in the vicinity when the incident happened.
If I understood your evidence in chief that was when the prosecutor was leading you, you stated that you approached this house together with the child? --- That is correct.
Did you take the child to the house? --- Yes.
Now am I correct in saying that this child was living with you at that stage? --- That is correct.
This is your ex-wife’s child? --- That is correct.
And am I correct in saying that this is not your biological child? --- That is correct if I may also could ask what the child has to do our case here.
Sir I am busy asking the questions I am just trying to set up the environment so that the court can understand the background to this. So if you will allow me to continue asking the questions. Now how did it come to be that you were in the company of this child? --- Because the child was living with me at the time and it was his uncle’s funeral so it was only natural that myself and the child will attend the funeral together.
And where was the father of this child? --- The farther is still to be found we are still searching for the father of the child.
Now if I understand it correctly when in fact did Pat leave you or when did you go your separate ways? --- She left the house roughly in September 2002.
2002? --- Three months after the marriage.
2000 and? --- 2002 it must have been September 2002.
She left you in September 2002? --- It is four years ago.
And are you certain of the date because I …? --- Look all the dates can be verified if I should say something wrong there are documents relating to this instance.
When were you in fact divorced? --- To my knowledge we got married on 24 May 2002 which was my birthday and she left three to four months after we got married she left the house.
I understand you are a German national is that correct? --- Yes that is correct.
Are you understanding my questions if I pose them to you in English? --- I should be able to yes.
The reason why I am asking you this because when I asked you when the date of your divorce is you mentioned one and a half year and you mentioned 2004? --- Sorry.
That is why I am asking you I needed to…? --- Sorry sir my sincere apologies now I am actually getting the dates mixed up and apparently I am not allowed to use any paperwork to confirm this here. But all the dates can easily be verified if that is of any importance it can be verified with the documentation.
You will understand the importance, the evidence that you give before court is evidence that you are certain of not speculation if you cannot remember then you must tell the court that you cannot remember things. --- As far as I recall I was married on 24 May 2002 which was four years ago.
Now when were you aware of the fact and you confirmed this is court that subsequently to your divorce from your wife that the accused before court then came into a relationship with her? --- He was in a relationship long before, the relationship to my ex-wife preceding our marriage. According to a written statement of my ex-wife she married us both simultaneously in the year 2000.
Am I correct in saying that this, one would often see you as the person who was married to her that this was interference in your marriage, the fact that there is a relationship between your ex-wife and him? --- I did not know it at the time, at the time when I was married to my wife I was obviously under the impression she does not have relationship with anybody. I think I was under a reasonable unfair impression that this is the case.
When did you first become aware of the fact that there was a relationship? --- My wife married me primarily according to her own words to seek protection from the accused. So obviously… (intervention)
My question to you sir was when did you become aware of the fact that there was a relationship between the accused and your ex-wife? --- The first day I met my ex-wife she told me about and the problems that she had in her relationship with the accused and that at the time when she starting to see me or starting to date me.
Sir, once again as with the dates I must put it to you that I am confused once again because I asked you when you became aware f the accused and you said that at the time of your marriage you were not aware of the relationship? --- No I was not aware… (intervention)
Sir let me finish please? --- What I said I was not aware that the relationship continued I was under the impression obviously that my wife married me that she has finished her relationship with the accused. I was not aware that it continued through the marriage or in fact it actually continued through the marriage.
If I can pose that question to you once again and please do not interrupt me when I asked you the question when were you aware that the relationship had continued, a very simple question. --- I realised that I would say maybe in November 2000.
November? --- 2002 November/December.
How did that happen? --- Because the family who tried to reunite us the family made various efforts to reunite the marriage and obviously it was brought to me that she had continued to see the accused, not continued started again to see the accused.
Am I correct in saying that as in any normal man that is an upsetting thing it is something that is a break in your marriage? --- Yes it was certainly upsetting. But on the other hand my wife was legally entitled to do what she was doing and so there was no criminal case, as I understand we are in a criminal court and we are trying to find criminal events. This was a civil matter which was very upsetting to me admittedly but she was quite within her rights to do what she was doing, legally not morally maybe but certainly legally.
Yes I am sure sir that the court would be in a better position to make legal judgments as far as what has happened. Now the child the elder child was fathered by another biological father am I correct? --- That is correct.
Could you explain to the court how you came to be having the custody of this particular child? --- How I was given the custody… (intervention)
PROSECUTOR: Your worship I have been listening to the questions and trying to find the relevance but the state will be objecting I do not see the relevance of the child’s biological father and when they got divorced and when they got married as to how this is relevant to the case before the court.
COURT: Mr. Murray.
MR. MURRAY: As it pleases the court if I can just give a background to the relevance again your worship I think it incumbent on the defence to paint a picture of exactly the situation in which the relationship between the parties was at the time and the time of the alleged offences.
COURT: I will allow the background information.
MR. MURRAY: The question is how did you come to be in having the custody of the elder child? --- Because the custody was given to me by Cape Town children’s court.
Do you have confirmation of that? --- Yes I have got all the documentation which I did not bring with because I did not consider it relevant. The matter will be heard in the Cape Town family court children’s court next week and all these issues are going to be discussed in the family court next week which I think is the right forum for these questions.
Now my instructions from the accused will be that you on a continual basis pressed the accused and the mother of the child for maintenance payments? --- It is in fact true that I have laid a maintenance claim against the mother not so much for the money but for education purposes because I have read once in a magazine that the moment parents who have deserted the children are made to pay maintenance will also put more attention and love to the children and I was using a maintenance claim simply as a vehicle to get the mother’s attention to the child because the mother had deserted the child at the time.
Sir am I correct in saying and I put it to you that you are prepared to make use of the courts as a vehicle to obtain certain ends? --- No I was quite legally within my rights to apply for maintenance. I was quite legally within in my rights that is not using the court as a vehicle. Both my wife and myself have an income of a similar size so I was quite within my rights to actually ask the mother to a contribution for her son. The court did follow that and there was a consent ruling that the mother would have to make some contribution towards the maintenance of her child which she also agreed to it was a consent maintenance agreement that we both signed.
Yes I put it to you sir in fact it just reflected in your statements that you are a person who is prepared to make use of the judicial system the court system to obtain your own ends. --- No not my ends of justice we are here for justice not to obtain from this person.
Now there have been two incidents that you have related here if I understand you correctly the one was on 24 July 2004? --- It was 2004.
I will make sure of that date because it seems as though you are a bit confused about dates earlier on? --- No, that was 2004 that is correct ja.
Now at this stage you were divorced from your ex-wife? --- That is correct.
That is Petronella Mkona? --- That is correct.
Did you have contact with her family at that stage? --- Yes.
And were you aware that at that stage the accused was living with her? --- Yes.
Sir if I understand you correctly you had contact with Ms Mkona’s family? --- That is correct.
And were you aware of the fact that the accused was living with Ms Mkona at that stage? --- That is correct.
And you will confirm that a child was born of this relationship between the accused and Ms Mkona? --- No I have actually evidence to the contrary not confirming evidence but all I can say is that I doubt that the accused has a child with my ex-wife a DNA test can establish if the need would arise.
With all due respect sir you are by profession a motor mechanic am I correct? --- No I am actually an electronic engineer.
But your practice is basically motor mechanics on Lanciers? --- Lanciers service of vehicles and we do internet services also.
In fact you are a motor mechanic? --- I am actually not a motor mechanic no.
You are not a doctor to be in a position to establish the paternity of the child which my client says is his am I correct? --- No I am not in a position at all I am not a doctor not at all, this is too far a DNA test, it is not my expertise.
Well I am putting it to you that the child was born out of that relationship between the accused and your ex-wife? --- You can put it that way unless I have evidence of that I would not confirm that. But in the statement from my wife is to the contrary so.
I put it to you sir that in terms of our law is it stands until the contrary is proved that is in fact how it stands. --- You can say that I say nothing to that.
Now that was the situation in 24 July 2004. you then said that the accused phoned you? --- 24 July 2004.
Had you had any contact with the accused till that date? --- Personally no I have seen him around sometimes in the hose of the family but obviously through the situation I did not seek to make any contact with him I had very little reason to do so.
Because my instructions are that you were also pressing the accused for maintenance money at that stage, you pressed them as a pair to make contributions towards the maintenance of the child? --- That is ridiculous that shows that the two of them have not got the legal insight to read the legal documents correctly.
Sir, if we accept your version then he had no reason to contact you on 24 July 2004 am I correct? --- Look he had reasons to contact me because obviously if the mother would have paid a contribution to her child it would have mean less in his pocket so he had every reason obviously because my ex-wife was forced to submit her income wholly and entirely to him. So obviously he would have had a loss of income should she have to provide for the child.
You are putting information before the court here and you are not giving an indication as to what your source of this information is. --- That is herself that is the statements that she made herself to me and family members like… (intervention)
But not statements made directly to you by the accused? --- No.
Am I correct? --- That is correct.
So it is not something in your knowledge you are getting it second hand am I correct? --- That is information that I have got form my ex-wife and the family.
Sir, am I correct in understanding that he had no reason to phone you on 24 July 2004? --- Look I think the maintenance proceedings were going on it was obviously upsetting for the two of them because I would obviously asking attention for the child.
Let’s just go back to this date 24 July 2004. your phone rings I assume it was a cell phone? --- No it was not a cell phone.
What type of phone was it? --- It was a landline it in fact a German ISTN telephone.
Can you just explain to the court what happened you established that it was the accused on the other side of the line? --- That is correct.
What did he say to you? --- He said Felix the accused is normally very short with words and he said that I should stop messing around in his affairs and proceedings where I must say I do not remember the correct words of that the only words that I can correctly affirm that he has said is that he will come to my house with a knife and fire. These words transpired it is such a long time ago they are still in my brain and that I can exactly repeat here.
If I can ask you sir you picked up the phone am I correct? --- That is correct yes.
And then what did he say to you? --- As I say I will not confirm on the entering stage just summarising that I must stop intermingling with his affairs meaning my ex-wife’s affairs which were their joint affairs. He said otherwise he would come with fire and a knife to my house.
Did he introduce himself to you did he say this is David Paola speaking or what did he say? --- He said I am Landrino that is the name he is normally referred to is Landrino.
Once again sir I am asking you because now that I have put the words in your mouth now you remember. I asked you how did he initiate the conversation you could not tell me that you could only remember that he was bringing fire and a knife to your house? --- Look obviously you are telling me now because I did not remember he said his name that I might not have recognised Paola has got a very distinctive voice and it is virtually impossible once you ever hear his voice to forget it again. So it would have been somebody else it is actually a ridiculous proposition.
When you took the call if I understand your evidence you were alone am I correct? --- I was alone in the room my friend Mrs Allison was in the room next door.
Mrs Allison you say she is a friend? --- She is a friend.
Not an employee? --- No.
Am I correct in saying that Mrs Allison was the lady that you were sitting next to this morning outside on the bench while we were waiting for this matter to be called out? --- That is correct.
You say that you hear that, you said in your evidence in chief, he said you must not mess around release his girlfriend and he would come with fire and a knife. --- That is the statement that I gave at the time yes.
Is that correct sir? --- That is correct.
As it is stated there? --- That was the statement that I made.
And he said that you must mess around with his girlfriend you must release his girlfriend. What did you understand by that? --- Obviously I did probably relate it to the maintenance claim because obviously I mean he wanted obviously to ask to stop all of our relationship because he was obviously still connected to one child also which also was the problem and he asked me to stop all relationship with my ex-wife in whatever form that may be.
Why would there be a relationship between you and him and the child? --- The child forms a relationship between myself and my ex-wife because she is the biological mother and I was the foster parent. That still gave us some connection which obviously was something that he was not so happy with sir.
Now when you heard this, the alleged threats what did you do then? --- I called my friend Mrs Molly Allison to come from the room next door.
Now he is obviously aware of what you are doing on your side he phones you these threats are made did you immediately call Mrs Allison what happened? --- Ja I called immediately Mrs Allison.
To come to you? --- To come to me the room next door is only five metres shod she only had to walk a distance of five metres which probably only takes two or three seconds so she was virtually there immediately.
When she came to you what did she say to you? --- She did not say nothing to me I simply pressed the speaker button the telephone has got a speaker button where then the telephone conversation is displayed by loudspeaker so everybody can hear it. Then I asked the accused and I pretended that I did not understand I said can you please repeat and then he actually repeat it exactly the same… (intervention)
Sorry can we just take it step for step sir you said when you called her into the room you said, did you tell him that you could not understand? --- I did tell him please repeat what he said to me.
Where was Mrs Allison at that stage? --- She was already standing next to me.
Had you put on the speaker phone yet? --- At that moment the moment when I asked him can you please repeat what you are saying that moment I pressed the button.
And what did he say? --- He repeated exactly the same he said I will come to your house with a knife and fire.
Now what did Mrs Allison say to you when she heard that? --- Nothing Mrs Allison was not there to say she was there to listen because Mrs Allison knows the accused also for many years and would have been able to immediately identify his voice.
That is the voice through your speaker phone? --- That is correct.
How did Mrs Allison come to know the accused? --- Because Mrs Allison used to live together with my ex-wife’s family in the premises in 140 NY29 where the accused obviously went in and out of the house while she was living there so she knew the accused for a long time.
What did she say to you did she say nothing you said she was just there to listen? --- I called her and said Molly come over here and I put her next to the telephone and I let her listen there was no other conversation needed.
What was her reaction? --- Her reaction she was obviously she could see that he was threatening me and as she is my friend she was obviously not impressed.
Yes I wan to know what her reaction was did she say something did she exclaim something as one would expect somebody to do when they hear somebody being threatened? --- Because I hung the telephone down we obviously did discuss the incident.
My question to you sir is can you remember did she say anything to you what was her reaction? --- I cannot remember what her immediate words were.
You cannot remember. --- Knowing Molly she would have said “Oh my God” that is from Molly’s character the most likely thing she would have said.
Yes sir we are not here to ask (indistinct) to relate what you saw. --- Sorry.
Your worship I must apologise could I ask that he matter stand down for a few seconds. Unfortunately I am getting very important information here. The court will understand I have problems in communicating with the accused and there is an issue that needs to be cleared up in response to the evidence that has been placed before court.
COURT: it will not be long?
MR. MURRAY: I doubt if it will be long your worship. Unfortunately it was the evidence or matters that I was not aware of.
COURT: Sure the court will then adjourn for a few minutes.
FELIX FAKTUR: s.u.o.
CROSS-EXAMINATION BY MR. MURRAY: (continued)
Thank you your worship I appreciate the opportunity to consult. Mr. Furtak just to get back on track again you said that the accused phoned you basically mentioned that he was coming with a knife and he was coming with fire to burn down your house am I correct? --- No, I said the accused said he would come with fire and a knife.
Yes. --- He did not specify what he intended to do with it but it is unlikely hew as going to light my Christmas candles.
Yes you speculated as to what he meant by that am I correct? --- Yes because he could have light my Christmas candles even though it was not Christmas.
Am I correct in saying that if we assume and my instructions are that in fact he did not say anything of that nature to you, that he said he was coming with fire he could have been speaking figuratively if you understand what that means? --- I do understand my knowledge of English is good enough yes.
Because my instructions from the accused are that he in fact phoned you on that particular day because his girlfriend your ex-wife let’s assume he had a relationship with her that moment subsequent to your divorce, had been locked up as a result of not having been paid, you having been paid maintenance towards the child? --- That is not correct.
My instructions form the accused are that you saw to it that the mother would be incarcerated should via the courts because she had not met her maintenance obligations? --- Factually wrong.
Why would the accused phone you at this junction for any other reason? --- Because obviously he did not want to have any money diverted from him to the child it was obviously not in his interest.
Are you aware of where the child is at the present moment? --- While the matter is pending with the family court… (intervention)
Sir my question to you, are you aware of where the child is at the present moment? --- I have certain ideas but I do not have evidence.
Can you tell the court where he is? --- Yes may I ask if it is of relevance?
COURT: Mr. Murray?
MR. MURRAY: Your worship once again it is of relevance if I can establish who had custody of the child at the present time. --- At this present time the custody is under, it is debated. The custody has been temporary removed from me and there is an appeal pending and the matter will be sorted out by the family court in Cape Town in due course.
You mentioned this aspect of the coming with the fire and a knife. Can you remember exactly what was said is that all he said was there any other thing was mention made of your former wife or the child or anything relating to the maintenance? --- I do not recall this.
You do not recall it? --- Because I obviously only remember these two words which were in my opinion relevant. Everything else about the discussion I do not remember anymore. It has not got anything to do with my bad memory but it has been a long time ago and a lot of things had been said and done I only remember the two incidents that are crucial to our case here. The maintenance matter is not a criminal matter so this is why I do not consider it relevant.
Yes I did not ask you that question. Am I correct in saying that one does tend to remember things fairly clearly shortly after the event? --- Obviously better than after a longer time unless you make notes of the events and obviously of certain things I have made notes this specific incident was recorded (indistinct) police are saying they and therefore the statements are (indistinct) next day.
Yes so you did make notes and you did refresh your memory I am sure today? --- No, as far as I recall having said that he would come with fire and a knife it constitutes a case of intimidation and that is what I consider as relevant to this case and that is what I remember.
Now you have told the court that this related around the maintenance of the older child I have asked you what you remember all you remember is this aspect of the fire and the knife. --- I mean if somebody would come with fire and a knife to your house you would also be upset about it.
How did you relate this sir back to the maintenance matter if you cannot remember anything beyond the fact that he said that he would come with fire and a knife? --- That was the reason, he could not give a reason to be upset with me. the accused has got a policy to educate people who do not…(intervention)
If you can listen to my question sir? --- Okay.
You have said that you can remember the aspect of the fire you can remember the aspect of the knife correct you understand what I am saying? --- Not aspect it is words I can remember the words.
Just let me finish please sir. So you remember those two aspects? --- Mm.
And I asked you if you remember anything else that the accused might have said and you say you cannot remember. But you have said earlier on in the court that this is related to the maintenance aspect. How do you relate it to the maintenance aspect if you cannot remember anything else besides the fire and the knifed threat? --- A lot of issues were going on and I remember a lot of the issues I say I do not remember what he said this very moment on the telephone obviously it will remember all the surrounding issues. It is a different thing all the surrounding issues and the very words that were said that moment on the telephone.
Can I assist you sir, you mentioned the knife and the fire is it perhaps that you remember these two words because they are words that have a greater impact? --- That is correct they were relevant ja.
Words that have an impact on someone. If someone shouts at you or someone swears at you or say something like that then certainly you will remember it? --- Because obviously the maintenance issue is not part of the criminal proceedings as far as I am… (intervention)
I am asking you sir to inform the court what caused you to remember those specific words? --- Because they constitute with the act of intimidation. So I knew that I have to remember that.
Are you certain that is all you remember nothing further? --- Of this specific conversation as I said in my statement I said that he told me to stop messing around with his girlfriend something to that effect that is what is in my statement so that is obviously what… (intervention)
And that is how you remember it and you assumed from the use of the words fire and a knife that he was going to come and kill you? --- No look if somebody comes with a knife he might injure you I mean there are cases but he might not kill you.
Listen to my question, you deduced from the fact that he mentioned a knife and fire that he was going to come and kill you, am I correct that is what you said to the court? --- That he could potentially do that yes because he threatened to do that it was a threat.
Because he mentioned a knife and fire? --- That is correct.
And it was something that you had to deduce? He did not come direct to say he is going to come and kill you? --- No, he could have been helping me cutting my meat for the evening that is also a possibility.
And your concern then that your friend that is Molly Allison was there when these things were said? --- That is correct.
And you are certain of that she heard what you heard that is why you had her there? --- She only heard when Mr. Paola repeated his statement of the fire and the knife. She obviously only heard whatever was said after the speaker was switched on.
Yes, and that is the point of having Mrs Allison there to confirm what you had heard otherwise it is just what you hear nobody else am I correct? --- That is correct.
And you are a hundred percent sure of that? --- (Indistinct) on the speaker phone when the accused said these very words and we both heard them together.
Sir I put it to you that although my client will confirm as you said he did contact you on that particular day but it was to try and locate his wife or rather his companion because he was concerned over the fact that she had been incarcerated related to the maintenance issues? --- To my knowledge she never was.
My instructions from the accused are that at no stage did he ever threaten to kill you or give you indication that he was either going to burn down your house or kill you in any way? --- That is obviously what the accused say and I say the other thing.
And if any evidence to the contrary should be put before this court then either that person is not telling the truth or you are not telling the truth or the accused for that matter? --- Three people who were present is the accused myself and Mrs Allison all three will give their testimony and then it is up to the magistrate to decide.
Now this incident you said happened on 24 July 2004. --- Correct
Now if we can move on to…? --- 29 January 2005.
29 January 2005. on this particular day you aid that you approached this house in Guguletu went to the funeral? --- That is correct.
Whose funeral was it? --- It was the funeral of Oscam Mkona that is (indistinct) oldest uncle who is not, he is a direct uncle it is the only children that is grandfather had with his girlfriend it.
Were you aware of when this gentleman died? --- He died a couple of days earlier but I do not recall the date.
I am sure we will be able to confirm this from the necessary death certificate. --- Yes that should be.
Now you went there with your ex-wife’s first son? --- That is correct.
And can you just relate you say you arrived there at 08:00? --- It was early in the morning I would say around 08:00 ja.
And you say the other members of the family were already there? --- Not already there they were in the house of the family they were not already there they were already up.
So this is a family (indistinct) Mkona’s? --- 142 NY89 is the family home the hose belongs to the grandfather Mr. Stanford Mkona and his children are occupying the house.
And all the family members were there. how many family members were there? --- I can recall that this morning Petronella Mkona was present, Lindiwe Mkona was present, Charmaine Mkona was present… (intervention)
Petronella, Lindiwe? --- The three daughters which is Petronella, Lindiwe and Charmaine. Boetie Mkona was present there was a Clive a friend of the family also like a live in friend of the family by the name of Clive his surname escapes me at the moment was also present. Obviously there were children I do not recall which children were there but there were various children there.
You said you went in there and you heard that the funeral had then been cancelled? --- Yes that is correct it was not cancelled it was postponed.
It was postponed? --- You cannot cancel the man was apparently dead.
Do you know when the funeral was going to be postponed to or what was the reason for the postponement? --- There was apparently a problem that they did not make the necessary bookings at the graveyard in time that is now the parents of the deceased. I did not venture any further into the reasons because they did not seem relevant to me. but it was supposed to be postponed by another week which was not a big train smash you know what I mean it was not of particular relevance as far as I can see.
You say there was a problem? --- There was apparently a problem why the undertakers were not informed in time the grave was not dug in time or something.
Were you in fact invited to the funeral? --- It is actually not invite, it is part of the Xhosa culture that you attend a funeral it is actually an obligation. It would have been rude if I would have not attended the funeral.
How did you know that the funeral was on? --- I was informed by the family.
So you were in fact invited? --- You can say I was invited ja.
Did you ask why nobody has informed you, you took a day off work and you arrive here and now suddenly the funeral is not going to happen? --- It was Saturday so I really did not take a day off work it was a Saturday so I was not that, it was not particularly, it was as I said not a train smash that it was not that day I mean I had my nice suit on and everything but you know (indistinct) I can also take a day off. It was not a particular problem.
So what you told the court earlier on that you had to take a day off is not correct in fact it was a Saturday because it was your day off in anyway. --- Ja but I am self employed so I always work Saturdays. I deliberately decide whether I want to work or not I normally do work but I took the day off fir myself not from my boss but from myself.
Now you said that you then went into the house and this funeral was cancelled and the accused? --- The accused was not present as yet.
Am I correct in saying that one would have expected the accused to have been there because he is a member of the family in the sense that he has a relationship in fact he is a member of the family (indistinct) is his biological son? --- You must understand that it posed the problem to the family as I was officially married into the family. So I had a legal standing as far as the community is concerned into the house while the accused did not have an official standing he was more like an embarrassment to the family that is why he was not officially there.
That is your opinion sir. --- That is my opinion and the community’s opinion.
Because am I correct in saying sir as I understood it in terms of south African law you were divorced from the lady? --- That is correct.
So legally speaking you were divorced from the lady? --- I was in a court of law I was divorced from her. But as I was still the custodian of the child I had an obligation obviously to bring the child to the funeral and to attend the funeral.
Now you mentioned that the atmosphere became chilli how did this come about? --- The atmosphere became chilli the moment that the accused entered.
When you say it became chilli what, how do you mean what gave you this impression? --- Obviously look because you are aware of circumstances you point certain circumstances out that he was the boyfriend of my ex-wife having two people in the same room with the family is obviously not the perfect situation.
But for whom was it chilli between you and the accused or between accused and the family or between you and the family who? --- Between everybody and everybody basically.
Because the accused will deny that he in fact entered the house at any stage? --- Ja but he definitely entered he did definitely enter the house that morning most definitely.
When you became aware and given the fact as you have alleged now that there was a funeral that someone a member of the family had just died the family were there that the atmosphere became chilli why did you not simply leave? --- Simply because Thando the child was still playing outside with his friends so I obviously collect him first before I could leave.
But if I understand your testimony you continued to take the day off you were going to spend the rest of the day you were drinking coffee? --- At the time I and the rest of the Mkona family were still friendly so I had no reason to leave the house.
If we can go through it now you say you were there the child is with his friends you say the accused then entered the house. What happened then? --- We did not have any conversation at all not any dealings at all at that time.
Now given the fact that you had earlier lay charges against the accused where you thought that the accused was threatening you is intimidating you in 2004 a case which had not been completed am I correct? --- That is correct.
If you had this fear why did you not leave the house here he is he is in a position to carry out his threats that you thought he was going to carry out why did you not leave the house? --- He was at that moment he was only in the house to collect my ex-wife and the baby that was what he was for and I did not interfere in what he was trying to do. By keeping myself aside and not interfering in his business I felt to be reasonably safe and I felt protected by the other members of the family also I was not alone.
Now you said he came to collect your ex-wife and the rest of the family, how big is this house if you can just indicate to the court? --- The house is fairly small it is small.
As the houses are in Guguletu. --- Ja they are very small.
How many rooms do you know? --- One room where you enter a living room and it has got one bedroom and a kitchen and (indistinct) it is a very small place ja.
When he came to fetch his companion and his child who did he address did he speak to you or did he speak to anybody else? --- No he went straight to her. She actually called her, they immediately went outside and had their dealings their conversations outside next to a car that was parked outside.
You say you did not see the dealings that went on outside? --- I did see but I did not hear. I did see the two of them but I did not want to get involved at that time I have already detached myself to a point where I did not actively want to get involved into any of the dealings.
When, if I understand correctly it obviously could not have been pleasant for you having, you say that the atmosphere was chilli? --- Ja it was not… (intervention)
Was anything said by anyone? --- No, everybody in the family basically kept quiet and waited until the accused left with Petronella and the baby.
And did she go willingly with him? --- This is a matter that needs a lot of psychologists and a lot of examination… (intervention)
I am just asking you a simple question sir. I want to know what you observed on that day. --- In my personal opinion she did not.
Not your opinion sir what you observed? --- What I observed no she did not leave willingly.
Now my instructions are that in fact you wanted to take as you did with the elder child you wanted to take the accused’s child with you as well? --- Has he got any evidence to that effect?
Sir that is my instruction to you? --- I deny that.
Whether we put evidence before the court will come in due course and you deny that? --- I deny that.
In fact my instructions are that in fact is the reason why the accused went to the house on that day was to collect his child because it was his own biological child and he was afraid that you were going to (indistinct) of the court take his child as well? --- I do not know that his is in fact his child and I had no intention of taking the child that child was with the mother at the time which I considered is quite where the mother belonged. In fact the mother and the child were playing that morning together and they were both happy and I was quite happy to see the mother and the child and did not require any intervention from anybody.
Now you said that your ex-wife took some time in packing her bags and that you were alerted to the fact that something was happening outside by Mr. Boetie Mkona? --- That we are a couple of hours at least, let’s say maybe an hour apart, my ex-wife was packing her bags she then left with the baby and the accused and then after an hour’s time roughly an hour’s then the incident happened. So my ex-wife and the accused went tot their shack in Philippi with the baby he subsequently locked her up there and then he returned alone.
Did you witness him lock his wife up? --- I have a statement of a witness.
My question to you sir is did you witness him locking up his wife? --- No I did not witness it.
Because my instructions are in fact that this never happened as you are relating to the court? --- It is your instructions I have got instructions from a witness that obviously opposing it.
And who is this person? --- For the safety of the witness do I have to disclose the name?
COURT: Mr. Murray are we not going into side issues now taking up to much time.
MR. MURRAY: As it pleases the court your worship. I trust that the necessary evidence will be placed before court and has been given to the defence. So if we can just take it then you were sitting there you are having your coffee the alleged funeral has now been cancelled the accused comes in there is a chilli atmosphere he comes to fetch your ex-wife and his child? --- Firs the come in and everything the coffee was afterwards after he left.
I see so he is gone? --- He is gone with my ex-wife and the child he is gone thought he situation gets a bit more pleasurable again and Lindiwe decides to make coffee for everybody so I sit with Lindiwe and we did not discuss any problems relating tot the issue we were simply talking about the weather and enjoying our cup of coffee.
So as far as you are concerned the accused comes in there is a chilli atmosphere the two, your ex-wife and the child leave everything goes back to normal and you are sitting there at that stage? --- Yes I was quite happy.
Who was there with you at that time? --- I can only remember that I was specifically talking with Lindiwe but all the other members of the family that he mentioned that I said earlier were also either in the house in front of the house or around.
And you were discussing the weather? --- We were discussing issues not pertaining the accused or my marriage or the children we were discussing matters of no relevance because all of us had enough of the various problems we had a mutual agreement not to mention any issues.
And then what happened? --- Then as I have testified earlier I heard a voice from the outside saying Felix your car.
And who was this person? --- That was as I have only heard the voice I might be mistaken I believe it to be and I was told it to be Boetie Mkona so various bystanders told me but I have not physically seen Boetie because Boetie was outside and I was inside.
Have you, you are well familiar with the family you were in fact married into the family as you said? --- That is correct yes.
We have heard how in the early incident in 2004 you were able to distinguish the accused’s voice, Boetie Mkona did you distinguish his voice on that particular day? --- No.
So on this occasion you could not do that? --- … (intervention)
PROSECUTOR: I think my colleague, Boetie Mkona and the accused is not the same person so I am not following your question.
MR. MURRAY: That is understood your worship I related to the fact that the accused has indicated that he recognised the accused’s voice and this alleged conversation in 2004…? --- Mr. Murray I understand what you are trying to before here once I have a conversation over various sentences a full conversation with accused on the telephone and I could well recognise his voice and the other is a cry from the dark Felix your car. In that split moment I did not recognise the voice and (indistinct) a difference sir.
No that is what I am asking you sir thank you for giving (indistinct). Now did you, you said that you heard from other people that it was Boetie Mkono? --- Ja I was told later on that Boetie came out of the house and saw it.
Okay, did you approach Boetie Mkona to ask him was it you calling? --- No I did not specifically.
Why not? --- Because at the time afterwards there was a lot of blood and a lot of commotion so that did not appear relevant at the time.
You will agree with me that a large amount of time has since gone past since 29 January 2005 in fact over a year. --- That is correct.
Did you approach Boetie Mkona to find out whether in fact it was him who called? --- No.
You did not? --- No and that is for the mere reason since that incident the relations between myself and the Mkona family basically taken a plunge.
Since when has this plunge happened? --- The plunge happened since the very incident that we are discussing here now.
If I may ask you on that pint sir if we accept your evidence and my instructions are that from the defence side we are not to accept that evidence that the wrong was being done to you by the accused why from that date would the Mkona family not have good relations with you. You are sitting having good relations he walks in and you allegedly get attacked from that time on there is not good relations? --- The relations were not good because the Mkonas remains what I consider a criminal matter ambivalent and the Mkonas ambivalence to the law was something I come from a background where we do not have ambivalence to the law we try to follow the law and reinforce the law and the Mkonas ambivalence towards the law separated myself from them.
Sir we are speculating on that point but I put it to you sir the reason why in fact that there may have been a breakdown between you and the Mkonas is the fact that you in fact attacked the accused before court. That you instigated an incident on that particular day? --- I am not aware of this.
Now you hear this voice calling what did you do then? --- I ran outside.
Is anybody with you? --- No at that time I ran outside from the house to the outside where it happened the car was parked 25 metres from the door to the, it is only a very short distance sir.
My question to you is did you run out alone or were there other people with you? --- I did run out alone but the other people obviously immediately following me to see what is happening. But at the time I did not look behind me to see who is following me at the time my eyes were fixed on the accused.
And the scene that greeted you when you came out there if I understand from your evidence was that your car was there all the windows were broken? --- That is correct.
And the accused was making his getaway? --- He was making his getaway he was, the moment I spotted him about two metres away from the car with his back facing the car so he was running away from the car.
So you in fact surmised that he was the one who broke those windows? --- So it would appear if somebody runs away, is two metres away from a scene of crime and he is equipped with a iron bar and the windows are all smashed then one might think that this iron bar relates to the broken windows but I have actually physically not seen the accused breaking the windows I did not physically see that. It could have been somebody else with another iron bar.
You say it could have been somebody else? --- Many people wear iron bars these days maybe the accused was wearing one iron bar and somebody else was wearing another iron bar.
Now where was this iron bar you have mentioned there were a lot of other implements I think you have mentioned? --- The accused by the time I had him on the floor … (intervention)
If we can just take it step for step sir. You had come out you see the windows are broken you see the accused are running away he is approximately two metres away from the car where was the iron bar? --- In his hands.
Left or right hand? --- That I do not know. In fact I do not actually, I did not see the iron bar with my eyes I felt the iron bar on my head because the iron bar caused me a hole in my head therefore I assume the accused had the iron bar on him.
Yes but my questions are very simple to you sir and we need you to paint this picture because you do not seem to have any other person here before court to paint it for us. You come out you see the windows are broken you see the accused running away, two metres away from you and you mentioned to the court that he had an iron bar? --- I did, at the time… (intervention)
Did you in fact see him with an iron bar or you did not see him with an iron bar? --- I did not see the iron bar.
You did not see him with an iron bar? --- No.
You say you then chased after the accused? --- Immediately not then immediately. While it all happened it maybe within two to three seconds it happened very fast I immediately chased after the accused.
So you gave chase immediately? --- Immediately.
You ran straight after him. Now you see at this instance that we go back again to the alleged threats you say you thought that the accused wanted to come with a knife and fire and so on and yet you chased after him. He has just damaged your car you still go running after him why did you not call the police to come and arrest him? --- Because how can the police, you first have to get the man before the police can arrest the man.
I put it to you sir that is a policeman’s job to go and find the suspect to arrest him and to bring him to justice. --- As you know yourself, what would you do you tried, no we are not going to this incidence just leave it there. at the time I felt that I am within my rights to do so you can correct me if I was wrong but I felt it was within my rights to do so.
I out it to you the reason that I find this strange sir this is someone who has threatened you he has already, if we accept your evidence, has already damaged your vehicle and you still give chase after him? --- Yes obviously I mean I wanted to protect my property and myself so whoever is aggressive I try to catch them and bring them in front of the court of law. What I know I believe the matter belongs to.
Now did you call anybody to come to your assistance? --- No but everybody was there. I did not have to call anybody everybody came… (intervention)
Did anybody come to your assistance? You are chasing after the accused did anybody come…? --- At that very moment no I actually, look after I got hit the first time and I fell on the floor as I have said… (intervention)
Sir we will come to that when it is necessary you see the accused running away did you call anybody you said there were people outside the house and people around? --- No I did not call anybody.
So you chased after the accused he has got a two metres advantage over you? --- Not a two metre.
I beg your pardon? --- We did not say two metre about 50 centimetres sir. The police confiscated the iron bar it should be an exhibit actually. All the things were actually confiscated by the police at the time.
Sir, can we just confine ourselves to the evidence that you have relayed before court. What was the distance was it two metres or 50 centimetres as you indicate to the court? --- The accused was two metres away from the car but the iron bar was about 50 centimetres long.
Sir are you sure you understand my English because I put it to you the accused was two metres away from the car was running away am I correct? --- Ja.
And gaining distance all along am I correct? --- He was not gaining, when I fell down the first time we were maybe four metres away from the car this thing happened very fast.
Sir if we can just go back and do it step for step. You come out of the house you see the accused he is running away from your car he is two metres away from you am I correct? --- He is two metres away from the car.
He is two metres away from the car. --- And maybe at the time four metres away from me.
So he is four metres in fact away from you? --- He was two metres away from the car and four metres away from me. the measurements would have been taken from the house obviously the police at the time did not actually do that.
COURT: Thank you the court will then adjourn until 14:00.
COURT RESUMES 14:00
FELIX FURTAK: s.u.o.
CROSS-EXAMINATION BY MR. MURRAY: (continued)
Mr. Furtak you remember we are now discussing the second alleged incident that took place on 29 January allegedly 2005? --- That is correct.
Now you mentioned you came out of the house the accused was approximately 2 metres away form your car and four metres away from you as I understand it? --- That is roughly ja.
And you immediately gave chase? --- That is right.
And you initially said that he had an iron bar now you say he did not have an iron bar that you could see? --- No, no I only physically saw the iron bar once I safeguarded the accused I saw the iron bar and all his other weaponry. At the moment when it actually happened it happened so fast I had no time whatsoever because it was a matter of three or four seconds to take any note of anything else.
You only saw the iron bar and you mentioned I think it was acid and things like that? --- Yes both I have mentioned the iron bar a bottle of acid a bottle of petrol and a knife.
That was when you had arrested the accused where were these goods found? --- On him.
But did you see where it was found? --- Physically I did physically see the knife in his pocket the two bottles were laying on the floor and the iron bar was still on him or on his hand but somebody took it off and I did actually at the time made sure that the arresting officer would take all these four items but I am… (intervention)
Did you understand what I am saying now did you in fact see him in possession of those things or were they just close by to him? --- They were physically on his body I would say ja.
Did you see that? --- Ja.
You had to think a moment there did you in fact see these items on him? --- I saw the iron bar itself there were a lot of people around it immediately who took all sorts of things I did even see how somebody actually took his knife somebody even from the family actually took his cell phone even. So I even tried to kind of protect his property like hyenas came over the accused trying to rob him and stab him not stab him but kick him and he was not treated nicely at all by the crowd. But I can say that I saw with my own eyes I saw the iron bar I saw the knife that I physically saw in his pocket. That I actually remember and I saw two bottles.
While we are on the subject do you want to describe to us what this iron bar looked like? --- The iron bar I would say it was a rough iron bar wrought iron rough steel it was like dark it was not chrome or shiny it was a dark rough thing about that long.
For any specific purpose as an engineer you would know for instance you have a crowbar what was it? --- Very rough like a crowbar for example ja but it was not a finished tool I remember it was not a finished tool like a crowbar would be a finished tool with finished ends it was not a finished too as such ja. The police should actually have put this in office the items which I hope.
Now the acid you mention and the petrol in what sort of containers were they? --- The bottles were lying next to him and I have actually physically not… (intervention)
Can you just limit yourself to the questions I am asking sir. You mentioned there was acid was it in a container? --- In a little (indistinct) loose containers bottles like this here.
COURT: Normal plastic fruit juice container is shown.
MR. MURRAY: what type of acid was it? --- I do not know because I was told by the family that I was… (intervention)
I do not want to hear what you were told sir you have told the court today that there was acid in that bottle I want you to tell the court how do you know that there was acid in that bottle? --- Okay I have not verified that myself.
So you are not sure, you have mentioned that there was a further bottle with petrol in? --- Yes that also I have not verified myself that the contents was in fact petrol.
You do not know what has happened to these items? --- I was telling the arresting officer to please confiscate the items whether they have actually physically done so I do not know at this stage.
And more than a year has gone past and you have not bothered to follow up on this? --- I have actually followed up a lot I do actually have the telephone numbers of the arresting officer who should be called as a witness I think he was actually called today in so we have tried to get the city police arresting officers here in court so they can confirm what I am saying ja.
Am I correct in saying that these were very important items and if I understand your evidence before court today you in fact, you told the police about them the city police and that they should have removed it on that day am I correct? --- That is correct.
Am I correct in saying this should be a very important indication of what the accused, if we assume, my instructions are that the accused was not in possession of such items that it would indicate what the accused was thinking of? --- It is obviously very important items that, is correct ja.
Would I be correct in saying that with the exception of the iron bar it would be fairly strange for the police to leave these items out of the statement taken from you? --- Please repeat the question?
If the police did not note this down in a statement that was taken from you it would be rather strange because these are important items regarding the alleged offence? --- It is important items, that is correct.
So it is rather strange if the police do not put this into your statement or did you tell the police about this? --- It should be in my statement I am sure it is in my statement. I am very sure that his is in my statement. As a matter of fact I am looking through my statement right now and it is in fact part of
my statement. I have got my statement here and it says it here.
Sir I see you are waiving a printed statement may I request that I have a view of that statement I am not in possession of any printed statement.
COURT: Sure you are welcome. Okay this is a statement the witness typed himself or had it typed and are you saying you have a copy of a statement that the police then rewrote?
MR. MURRAY: It is just a mater of record your worship I was never made and I assume this came out of the court docket it was never made available to the defence.
PROSECUTOR: Your worship the only statement that the state has in their possession is the statement that has been here all along unfortunately I cannot comment further on what was handed to the defence as far as I know the particulars were handed over on an earlier date and it is not a new statement it has been there all the time.
COURT: Does it differ from the statement you have from this witness?
MR. MURRAY: The statement that was given to me and unfortunately I had no opportunity to correct that, it differs substantially from the statement, the written statement that were provided to the defence. (end cassette 2)
MR. MURRAY: I am in possession of a written statement perhaps it might be an idea to D1 which has been made available to us or A1 it looks like a D. If I can just have a quick look at A1 and perhaps I can... if I may continue your worship just on this point Mr. Furtak it is now a matter of record I requested that an affidavit which you have been referring to in the court it is a typed affidavit and it is typed and I assume on your business correspondence? --- That is correct.
It is Lancier Esads (indistinct) Service CC that is your business? --- It is correct that is my letterhead.
That is your business now you typed this statement out? --- That is correct.
Am I correct? --- And it is signed by a commissioner of oath.
Yes I would differ with you in saying that it is in fact correctly commissioned? --- It was stamped by the Woodstock police station they have done it formally I apologise ja.
I informing you in terms of the rules it would appear that it has not been correctly commissioned. It had been signed by someone who calls himself a commissioner of oaths. Now is this the first statement that you made? --- That is correct.
And did you then provide this to the South African Police Services? --- Yes.
Now I have a statement here sir and unfortunately it would appear once again it is not completed. If I can show you the statement would you just have a look at it I see it has been initialled if you could just advise me whose initials are those at the bottom of the page? --- I do not know this person initials it is certainly not my initials it is also certainly not my statement.
So what you in fact are saying is sir is that the state it was just provided to me from the state’s file that the defence were provided with a statement that is not initialled by you and it is purporting to be a statement that was taking form you? --- All I can tell you is that specific piece of paper has not been initialled by myself that is all I can say.
COURT: Not been written by you but did you actually sign it? --- No it is not my signature.
MR. MURRAY: I see there is an initial down at the bottom there it would appear to be an FF you say that is not your signature? --- May I have another look because I only saw the one in the middle.
There is an X down at the bottom. --- No, no it would appear but my signature is considerably different if you look on the other statement my initial is considerably different.
I see if we have to accept your version that what we are seeing here before court today is that a statement purporting to be part of the police docket A1 was provided to the defence according to your version and you say that is not the correct statement? --- All that I can say is that this piece of paper that you are showing me has not been initialled by me.
We are dealing with the statement am I correct in saying that it can perhaps become a matter of record as well this particular statement A1 nowhere is it reflected in this particular statement that there was as you have in this other statement that you have typed out yourself a bottle of paraffin and a bottle of acid nowhere is it mentioned in this statement? --- The other statement no.
Would you care to have a look at this we can make it a mater of…? --- I have made my statement which was my only statement which I signed and believe to have truly commissioned so.
So you cannot enlighten the court as to this? --- No I do not know where it comes from you must clear up but I cannot say anything about this piece of paper.
I see, I see the second statement was made on 16 February 2005 is that correct? --- If that is the date on there then it will be correct.
Am I correct in saying that this 16 February is perhaps in excess of two weeks after the alleged incident? --- In excess the 16th of February instead of the 29th January therefore February is in excess of two weeks yes it is correct.
That is what I am putting to you I want your confirmation? --- Yes.
Yes you had time to think about what you wanted to say? --- Yes.
Now if we can go back to the incident of 29 January 2005 you come out you see the accused approximately two metres from your car he is running away depending on your vision at this stage of the proceedings you did not see anything on him and you gave chase behind the accused? --- That is right.
Now the accused is running away you are ran after him how far further did you run? --- I would say when the first time when I had my first slash on the head that was maybe only another two or three metres it was virtually instantly.
Sir, you are chasing after the accused do you have him in your sight is he in front of you obviously? --- He is in front of me. I am facing his back.
Yes now you are running after him? --- That is correct.
And then what happens you are running the two of you one behind the other? --- I am running trying to catch him and then I fall down on the ground.
You are trying to catch him and you fell on the ground? --- I fell on the ground I was hit on the head and fell on the ground and we have a J88 document.
With all due respect sir I am trying to make logical sense and you are an engineer you are a person of some education…? --- I do understand it appears now difficult how somebody who runs in that direction can hit somebody who is behind him. That I do agree there is a logical… (intervention)
You do agree there is a problem with that? --- I do there is a logical problem I do agree with it.
That is in fact what I am trying to establish from you sir. You were there we were not there. --- All I know is that I did fall on the ground and it happened so fast I do not know there I would need some psychological advise and how far I can be expected to happen, everything happened within three seconds it was very fast.
So the version that you are giving and I pout it to you sir that as an engineer the discipline that takes in a lot of logic, the logic would inform us if you are chasing after the accused there is no way that the accused could have been the person who hit you on the back of the head because his back is facing towards you? --- Logic would assume that another unknown person was in fact behind me and hit me here that makes more sense on the other hand we do not really know what other person should have been behind there. The accused could have turned around I mean he could have turned around and just (indistinct) the bar I mean it is quite possible ja. I mean you run and you go like this and bang the bar behind you and hit somebody it is quite possible it is not impossible. I speculate I mean I fell on the ground I was hit on the head and I fell on the ground that I know.
I cannot establish why you find it is so difficult in a logical sequence you are chasing after the accused then you get hit on the head and you fall? --- Ja.
I put tit to you once again before I leave this point that it is impossible for the accused to have done so? --- It actually not so because you can turn around and hit behind you it is quite possible.
Now you, if we accept the fact that you were hit over the head and then you collapsed on the ground where was the accused then? --- He was running further away.
And then what happened? --- I managed to get myself together get up from the ground and it took me approximately another three or four metres to finally catch him. I do not know at what point he actually hit my chest at what point that happened I cannot remember. I know that the rib was broken but I do not know when exactly in the chain of events he did actually hit, the second time on the nose and on the, so it must have been one two, he must have hit, three injuries therefore… (intervention)
We do not want to hear must have I want to find out exactly what happened. Okay you say you get up you say you have been hit over the head you get up and you carry on chasing the accused? --- Ja.
What happened then? --- Then I managed to grab his neck and put him on the floor on the ground.
I see. And were you helped by anyone? --- Later on people liken Clive that I mentioned earlier came from the house and he chained not chained what do you call it tied the accused up so he could not escape anymore. When did you discover that you had been injured in the nose and in your ribs? --- Only when I came to the clinic, when I came to the clinic the I saw obviously I was told I had a hole here which I cannot see myself and the nose I saw in the mirror and the rib I only noticed as I have said earlier three days later when I had very severe pains.
So once again sir I put it to you that logic would inform us that it is an extremely painful situation to be hit on the nose am I correct? --- Ja.
Perhaps one of the more painful places on the body when you get hit. --- Ja.
An extremely painful situation when one has one’s rib broken am I correct? --- Ja.
And you are going to tell the court today that between the time that you were hit over the head and knocked down and the time that the accused was arrested you cannot tell us exactly when these blows happened or how they happened? --- Look it was adrenalin and if you would actually get medical advice that you know that the moment a person is under adrenalin you will not feel any pain at all. If you have a little bit of medical knowledge you should know that.
That is your opinion sir. I put it to you sir the fact that you cannot state these things is because in fact the events did not happen on that day as you have suggested to the court today.? --- That is you suggesting that. The events most certainly happened exactly the way that I told it.
My instructions before court today are that in fact my client when he came to the scene arrived to find his own biological child sitting in your car. --- That unfortunately was on a different day. There unfortunately your client is mixing his dates up because that was two weeks preceding that event. Your client unfortunately mixes the dates up I am aware of that event.
On that point sir what were you doing with his child in your car? --- You mean two weeks earlier?
Yes. --- That is not part of the case now.
Sir I am asking you a question what were you doing with his child in your car because I need to establish the circumstances because it is circumstances that is being suggested to you? --- Look two weeks earlier I got in fact there at the same place with my car and the child together with other children entered my car and was playing in the car where I had no objections to.
My further instruction sir on this particular day was that he was concerned because of the fact that you had taken the other child that his child would be going as well and he took his child out of your car closed the door and then you came and gave chase and attacked him that is the accused? --- On this specific day the child that he is referring to as his child was in fact with the mother in the shack in Philippi the child was not even there. so that cannot be true at all he is mixing up two events what he is telling you is an event that happened two weeks prior and in this, it maybe caused his anger and this was maybe a situation preceding the other event but they were factually roughly two weeks apart.
My further instructions sir is that you approached the accused you took him by the throat and you began to assault him? --- The fact hat I gave chase to the accused I grabbed his neck and pull him to the ground and therefore safeguarded him but by no means ever attacked him.
My further instructions sir is that the accused tried to get away from you? --- He did not have a chance.
Precisely he said he could not get away from you he did not have the chance in fact he logged a stone in your direction to try and ward you off because he feared you, you then got hold of him you began to assault him and the only way he could stop your assault was by hitting you with a bar. --- This is wrong.
My further instructions sir are that on this particular day that the accused was assaulted to such an extent that he had to be hospitalised himself? --- I do in fact have a copy of police statements as far as the condition of… (intervention)
I am putting it to you and I do not want you to refer to other copies that may be floating around in your own purported investigation, sir I am putting it to you that the accused himself was assaulted on that day and he had to be hospitalised. Yu cannot deny that? --- I do deny that yes.
I beg your pardon? --- I do deny that.
Sir if other witnesses come and testify in court today to say or at some later stage come and testify and say that the accused was hospitalised on that day they are wrong or are you wrong? --- I have a record that he in fact was at the day clinic but there was no major injuries found and hew as released immediately. That is the record that I have.
Well he was taken to hospital. --- That is correct.
Because he sustained injuries why else would you go to hospital once again simple logic. --- Ja there was in fact that is both he is (indistinct) with the blood HIV problem because the accused is HIV positive and we were both bleeding so there is a very unfortunate matter why the blood is quite relevant here. But I was not infected so.
Be careful with your words there sir. Just a final aspect do you deny that the accused was injured on that day? --- I am not denying that he was injured but I deny that I injured him or assaulted him that during our fall on the ground he might have sustained an injury that is possible that I do not deny but I deny that I assaulted him or injured him. I had no weapons and I did not even use my fists.
My instructions are that you in fact assaulted him on this particular day? --- That is not correct.
Now going back to the first incident you mentioned that Molly Allison was in a different room am I correct? --- She was in the bedroom but I was in the office.
How did you get to switch on the phone did you in fact go to where she was or did she come to you? --- No she came to me.
Did you call her across? --- I did call her across.
What did you say to her? --- I said Molly come.
Did she ask you why or what the reason was? --- No I put her immediately next to me switched on the speaker phone I might have said to her listen or something to that effect ja.
Now you said that you sustained damages to your vehicle you mentioned it was a Lancier Fuvia in the region of what was it? --- I estimated it for R13 000,00 but it is a rather arbitrary because the car cannot just be repaired.
What sort of damages were sustained? --- All the glass was broken the dashboard was broken and two chrome beadings were broken. All the glasses overall six it is eight, eight pieces of glass.
What other damages were sustained you are saying the glass the dashboard? --- The glass the dashboard and two of the chrome beadings around the glass.
Have you repaired the vehicle? --- Partially I have got all the side glasses are repaired I am now waiting for the rear and the front screen.
Did you repair it yourself? --- Yes.
Did you personally do any panel beating work? --- Yes sir.
Now you mentioned in court that the parts that you got to make the necessary repairs you obtained them from your own sources? --- From my (indistinct) me as the driver of the car are the only person in South Africa who can repair it but it is just a coincidence.
My question to you, you were the person who repaired the car? --- Yes that is correct.
Now I would assume that you are a businessman? --- I am trying to.
Yes and this you are running it as a business? --- That is correct.
Are you registered with the South African Revenue Services? --- Most certainly.
As a business? --- That is correct.
And you are obviously aware of your responsibilities as far as your responsibilities towards the South African Revenue Services are concerned? --- Most certainly.
Now you repaired these from your own sources the vehicle? --- That is correct.
Did you make an inventory of your repairs? --- Yes most certainly.
Did you provide that to the state? --- We have the, the state has got a copy of the estimate of the repair I detailed all the parts in detail that I needed fort the repair of the vehicle and the prosecution should have a copy of that. I can provide you with a copy if want to.
I have got a copy at this late stage you appear to have a copy now in your own possession. Sir do you make the necessary inventory of your repairs? --- Yes.
And to this stage it appears that the state was not provided with that? --- You mean the inventory of my stock inventory?
Yes your stock inventory. --- My stock inventory is masses I hold the biggest sort of spare parts for Lanciers in the southern hemisphere.
But you are aware of the fact that you are required to keep an inventory? --- Yes I know I do, we do have you can go to lunch at (indistinct) there is a complete inventory available for your perusing.
Now this matter has been a long time coming to court am I correct? --- That is correct.
Have you attempted to have any contact with the accused since that time? --- No. the accused actually phoned me about two weeks ago but I never contacted him. Actually now I am lying sorry I am under correction while the accused was actually in Pollsmoor I wrote him two or three letters with cigarettes vitamin tablets and some positive words. But the accused never responded to these letters. Okay to be correct I have however had served an interdict against the accused about a year ago.
Yes it would appear that the accused who has recently he was released from imprisonment has been keeping to the interdict. You say that you tried to contact the accused in Pollsmoor? --- No it was long, it was the first time he was in prison twice and I had in fact the first time sent him two letters with some goodies for himself and asked him to get in touch with me but on the second imprisonment term I did only I think he got the interdict served which was not personally by me but obviously by the clerk of the curt. Two weeks ago the accused phoned me again.
Now on that aspect my instructions are that you have in fact been sending SMS messages to the accused as well? --- That is correct. I omitted that my apology that is in fact correct.
Am I correct in saying that in these SMS’s you have said that you are going to sort out the accused’s problems with this current case before court if he assists you? --- No I have never said that. The accused had asked for that. The accused has in fact offered to return the wife and the baby if he gets acquitted in that case. But as it is obviously in the court of law it is hilarious I did never entertain that offer.
My instructions are that you have been SMS-ing the accused offering to withdraw this case if he can sort out the problems between you and your ex-wife his companion at the moment the mother of his child? --- I do in fact have copies of these SMS’s so I do not recall them but this can be verified. I would have to get the copies of the SMS’s.
My instructions sir are that at no stage did he ever offer and he puts it most vehemently that he would never offer to give his biological child to you at any stage that in fact this whole problem started with you attempting to take the child from him and that was how he tried to retrieve the child from your car? --- Sir I never had any intention of taking any biological child from him so I do not know.
Thank you your worship no further questions.
NO FURTHER QUESTIONS BY MR. MURRAY
RE-EXAMINATION BY PROSECUTOR:
On this specific day when the incident of the car happened was the baby in your vehicle? --- No as I stated earlier my ex-wife and the baby was going away with the accused to the shack of the accused in Philippi. According to a statement that I have from another witness they were both locked up in the shack while the accused then came back to the scene. The baby was in fact two weeks earlier on a prior visit with a different car has indeed played inside the car and that in fact is true.
And have you at any stage ever attempted to take the
accused’s baby form him? --- No I have however and this is to get the matters clear I have evidence that the child was abused and I have informed the social services of the possible alleged abuse and have asked the social services to investigate the wellbeing of the child.
But have you ever physically tried to take the child away from the accused? --- Never ever I have physically on one or two occasions touched the child when it came running to me but I have never ever would I do that.
And on the day of the incident with the telephone when the accused contacted you do you have any knowledge of the mother of the child being locked up due to non payment of maintenance? --- I know in fact that the mother did not want to, what do you call it, appear in court and obviously in the new South African legislation you do not come for a maintenance hearing you automatically get a warrant issued. So there as in fact a warrant issued for the mother but she did eventually comply and did actually go to a court hearing without having been arrested. She was (indistinct) the magistrate said she caused a lot of trouble for the court but she was never physically arrested. It is however true that if you do not come to a hearing you can be arrested that is true.
But on the day that he contacted you on 24 July did you have any knowledge of the mother of the child being locked up? --- No but he could have had knowledge of the fact that there was a warrant of arrest out for the mother.
Yes but did you have any knowledge sir? --- That there was a warrant out yes.
And did he on that specific day ask you anything or tell you anything about the maintenance or…? --- I do not recall that. But I could see that it must have been related because obviously there is a certain relation of the problem. But the maintenance case was clear legal issue even the mother did sign a consent maintenance agreement so she did actually in court not even dispute my claim.
On the day of the incident with the car what was the reason that you chased after the accused? --- That I chased after the accused is to safeguard him to get him into custody.
And why did you feel it was necessary to safeguard him at that stage to get him into custody? --- To catch him because I knew that on previous occasions he escaped custody on many occasions so that is why I tried to catch him myself.
Did you chase after him without any reason or was it that you feel that there…? --- The pure reason was to get him where are today in the court of law.
But why did you want to at that stage sir chase after him had he done anything at that stage? --- That is the thing I could see that my car was smashed and I could see him running away from my car. It is obvious that I made a logical conclusion but technically speaking there the defence is quite right a completely different person could have smashed the car and Mr. Paola just happened to stand there and decided to run away.
At that stage when you chased after him did you honestly believed that he had damaged your vehicle? --- I was honestly under that impression.
And did you have any weapon or anything in your hand when you chased him? --- I had nothing, nothing at all.
And a comment was made to you or a version was put that you in fact instigated the attack what is your comment on that? --- That is definitely wrong it is definitely not the case. in fact I even protected the accused when other members of the community tried to attack him.
Did you in any way assault the accused on that day? --- No not at all but I am in fact aware that he went, he has also been to the day hospital to attend to some minor injuries there I have got some police record but I do not know anything more. But I mean you must see two men falling onto each other with iron bars and knives in between. You know he could have also sustained some minor injuries from that.
Thank you your worship I have no further questions.
NO FURTHER QUESTIONS BY PROSECUTOR
PROSECUTOR: The state still has three other witnesses here
today and may I proceed with the next one.
PROSECUTOR: The state will then call Mrs Molly Allison.
MOLLY ALLISON: v.o.e.
ONDERVRAGING DEUR AANKLAER:
Mev Allison ken u die klaer in hierdie saak Felix Furtak? --- Ja.
Van waar af ken u vir hom? --- Ek het vir hom gewerk Edelagbare.
En die beskuldigde in hierdie saak mnr. David Paola ken u hom? --- Ja ek ken vir hom.
En hoe ken u vir hom? --- Ek ken hom van 89 af dat hy Pat se kêrel was of nog altyd is.
En wie is Pat nou? --- Pat is mnr. Felix Furtak se vrou sy ex-vrou.
Op 24 Julie 2004 was u by mnr. Furtak se woning gewees in Woodstock? --- Ja.
Kan u asseblief vir die hof vertel wat daardie dag daar gebeur het? --- Daar was 'n oproep gewees en na Mnr. Furtak 'n rukkie gesels het met die persoon in die anderkant toe wink hy vir my dat ek moet nader kom en hy sê vir my saggies dat, in lippetaal dat dit Landrino is wat op die telefoon is.
Ek wil net iets opklaar wie presies is hierdie Landrino nou? --- Landrino is mnr. Paola.
Nadat hy nou vir u gefluister het wat gebeur toe? --- Toe kom staan ek hier langs hom en hy druk die telefoon daardie knoppie het hy gedruk toe kon ek duidelik hoor wat die persoon aan die anderkant sê.
En wat hoor u toe? --- En dit was ek kon herken dat dit was mnr. Paolo se stem gewees en hy het kwaad geklink dat hy sê toe mnr. Paolo sê toe vir Felix dat “I will get you I will come to your place with fire” dit is wat hy gesê het “or I will kill you” en Felix vra vir mnr. Paolo en hoe sal jy dit doen om my dan nou te vermoor. Mnr. Paolo sê vir hom ek sal met 'n mes kom al moet dit met 'n mes is. toe is dit dat Felix die telefoon neersit en sê ons moet na Woodstock polisie gaan dat hy vir hulle gaan vertel wat hy nou net gehoor het wat mnr. Paolo nou net vir hom gesê het.
En het julle toe polisiestasie toe gegaan? --- Ja ons het gegaan.
Sê vir my voordat mnr. Furtak nou vir u nader geroep het kon u hoor waaroor die gesprek gaan? --- Nee ek kon niks hoor nie want ek was besig.
En toe mnr. Furtak nou vir u nader roep en die speaker phone aansit kon u toe nou hoor dat dit Landrino is mnr. Paolo is soos wat u na hom verwys? --- Ja.
So selfs al het mnr. Furtak nie vir u gesê dit is Landrino nie sou u sy stem kon herken? --- Ja.
En hierdie woorde wat u nou gesê het aan die hof dat hy sal kom met die “I will come to your place with fire and I will kill you” is u seker dat dit is wat u gehoor het op daardie stadium? --- Ja dit is presies wat ek gehoor het.
Het dit geklink asof mnr. Paolo ernstig is oor sy dreigement? --- Hy het in 'n kwaad toon gepraat hy was 'n bietjie kwaad gewees aan die anderkant.
Die verhouding tussen u en die beskuldigde in hierdie saak het julle 'n goeie of 'n slegte verhouding of...? --- Nee ons het niks teen mekaar gehad nie want ek het hom ook altyd gesien wanneer hy inkom daar by die huis daar in Guguletu en miskien vir Pat kom haal en so aan dan groet hy net. Somtyds dan sit hy ook nie dan sal hy altyd daar staan in die deur dan sit hy nie dan kom haal hy net vir Pat dan gaan hy uit.
En vir mnr. Furtak sien u hom nog gereeld? --- Nee mevrou ek sien hom nie gereeld nie want ek werk nie meer vir hom nie ek werk nou in Parow.
Is daar enige “bad vibes” tussen julle twee of...? --- Sê weer?
Is daar enige slegte gevoelens tussen u en mnr. Furtak? --- Hy het my somtyds baie kwaad gemaak want toe ek los om vir hom te werk toe het hy my uitgegooi uit sy huis uit hy het my net uitgegooi en ek was daar saam met my dogtertjie want ek het soos gebly daar.
So dit klink vir my as ek nou reg verstaan en ek wil nie woorde in u mond sit nie dat u eintlik kwater is vir mnr. Furtak
as wat u is vir mnr. Paolo? --- Ek is nie weer kwaad vir hom nie ek is nie meer kwaad vir Felix nie.
Dankie agbare ek het geen verdere vrae nie.
GEEN VERDERE VRAE DEUR AANKLAER
KRUISONDERVRAGING DEUR MNR MURRAY:
Is dit mev. Allison? --- ja.
Goed mev. Allison soos ek u verstaan het op 'n tyd vir mnr. Felix Furtak gewerk? --- Ja.
Was u ook bevriend met mnr. Furtak? Dit het meer gegaan as net werkgewer as ek dit so mag stel? --- Ja Edelagbare.
Was u ook bevriend met hom? --- Ja.
U het ook gesê op 'n tydstip het u saam met hom gebly saam met u dogtertjie? --- Ja.
Nou ek het gesien vanoggend u het langs hom gesit daar en gepraat gesels daar buite in die gang? --- Ja ek het nie geweet hoe om hier aan te kom nie toe het ek hom gebel van die werk af toe die polisie daar kom om vir my die summons te kom af gee daar in Parow dit is wat ek vir hom sê ek gaan die sondag kom oorslaap in Woodstock toe sê hy ja ek kan maar kom maar toe voel ek dit is beter as ek maar liewerste nie kom nie maar ek het gebel en niemand het geantwoord nie. nou vanoggend toe dink ek, ek gaan daar omgaan dan kan ek en hy saam hier aankom toe ek daar kom toe is hy al weg. So het ek maar sukkel sukkel hier aangekom en toe hy my sien toe is dit dat hy opstaan van die bank af en hy kom toe na my toe en hy sê ek moet daar langs hom sit.
Goed so u verhouding met hom is nie eintlik te sleg op hierdie stadium nie u kan nog met hom kommunikeer? Ek praat nie van dat julle nou uitgaan jy weet net dat julle kan maar oor die weg kom met hom? --- Ja.
U het ook gesê u het goed gedink miskien kan u daar by hom gaan bly want dit is nader aan die hof as Parow? --- Ja dit is soos gisteraand daar gaan, maar ek het nie gegaan nie.
Nu hopelik sal u my verstaan maar dit klink, u het gesê dat op 'n stadium het u hy vir u en u dogtertjie uit die huis gegooi? --- Ja.
U het gesê gegooi? --- Ja my het my net weggejaag hy het my net weggejaag.
Is ek reg as ek sê hopelik kan u nou vir my sê of dit die regte woord wat hier gebruik is maar dit klink vir my mnr. Furtak se persoonlikheid is ietwat van 'n ontplofbare persoonlikheid as ek dit so mag stel verstaan u wat ek sê is dit 'n goeie beskrywing? --- Ja hy is iemand hy kan sommer ontplof.
Reageer? --- Ja hy is presies net so.
Is ek reg dit dui aan uit sy aksies toe hy vir u en dogtertjie uit die huis gesit het? --- Ja.
Nou goed u het nou vir die hof kom getuig dat op 24 Julie 2004 u het nou geluister na 'n telefoonoproep wat gemaak was. Nou op hierdie dag het u gesien hoe lui die telefoon of hoe het dit gebeur waar was u op daardie tydstip? --- Ek was besig in die kamer en wanneer ek in die kamer is dan kyk ek sommer reguit hier na sy office toe waar hy sit. Sê maar ek kom uit dan kyk vas teen hom in sy office waar hy sit.
Goed so u kan vir hom sien soos hy daar sit? --- Ja.
Kan u vir die hof beskryf hoe lyk hierdie telefoon is dit 'n gewone telefoon of is dit 'n selfoon of hoe lyk die ding? --- 'n Gewone telefoon.
En is dit nou 'n telefoon waarmee 'n mens kan nou rondloop of hoe het dit gelyk? --- Nee jy kan nie daarmee rondloop nie.
Jy weet 'n mens kry sulke gewone fone maar ‘n mens kan daarmee rondloop? --- Nee dit is nie so nie.
Goed nou was u bewus toe daardie foon gelui het? --- Ja ek het gehoor die telefoon het gelui maar hy het reeds daar gesit op sy stoel voor die... (tussenbeide)
So hy het nou geantwoord? --- Ja toe antwoord hy sommer onmiddellik.
Nou ek neem aan dit is nou besigheid die telefoon lui op 'n gereelde basis is dit reg so? --- Ja.
Het u vir hom dopgehou toe hy nou besig was om te praat of hoe het dit gebeur? --- Nee ek het nie vir hom dopgehou nie.
Was u nou bewus dat hy nou besig was op die telefoon toe dit nou gelui het? --- Ja toe die telefoon lui toe tel hy dit dadelik op en ek kan hoor wanneer hy praat.
Het hy gepraat met die persoon aan die anderkant van die telefoon ek praat nou voordat u nou by hom was? --- Ja ek kon hoor hy het gepraat met die persoon maar ek het nou nie note gevat wat nie of afgeluister waaroor hy gepraat het nie.
So eintlik het u nie geweet waaroor dit gegaan het nie. dit is nou 'n lang rukkie terug om te onthou maar kan u onthou vir hoe lank het hulle daar gesit en gepraat voordat hy vir u nou geroep het? --- Dit was ek sal maar sê dit was bietjie so minder as vyf minute gewees.
Maar hulle het met mekaar gepraat? --- Ja hulle het met mekaar gepraat.
En toe roep hy vir u? --- Ja Edelagbare hy het gewink na my.
En u stap na hom toe en toe wat gebeur? --- Toe staan ek langs hom en toe is dit wat hy die telefoon speaker druk toe kan ek duidelik die stem hoor aan die anderkant alles wat die een praat wat aan die anderkant is.
Nou u het gesê dit het geklink of die persoon op die anderkant van die telefoon, het hy nou vir u gesê dit is nou Landrino of...? --- Ja hy het vir my in lippetaal gesê toe hy vir my roep toe sê hy vir my Landrino,
So hy het nie sommer net so stilgebly nie? --- Nee.
En soos u langs hom daar gestaan het en toe kom die dat
almal kan maar hoor hy druk daardie knoppie. U het gesê dit het geklink het asof Landrino dit is nou die beskuldigde dat hy nou kwaad was? --- Ja hy was hy was 'n bietjie kwaad sy toon het kwaad, hy was nie tevrede nie. dit was toe dat hy verder gegaan het met sy gesprek en dan nou vir Felix gesê het ek sal vir jou kry.
U het gesê hy was nou kwaad? --- Ja.
Okay wat het hy onmiddellik gesê toe die speaker hierdie luidspreker nou...? --- Toe is dit dat hy vir Felix sê hy sal vir hom kry.
Is dit wat hy gesê het? --- Ja.
Is ek reg as ek sê die, as ons u weergawe nou aanvaar dat hierdie dreigemente was nou eintlik aan wie was dit gemik? Verstaan u wat ek sê? --- Hy het, mnr. Paolo het mos nou reguit gepraat met Felix so hy het presies na Felix toe verwys.
Hy het nie met u gepraat nie? --- Nee, nee hy het ook nie geweet ek staan daar dat daar is iemand nou wat luister na sy stem nie.
En u is heeltemal seker dit is wat u gehoor het? --- Ja dit was wat ek gehoor het.
Die woorde was dat hy gaan vir hom, kan u net herhaal? --- Ja dit is al wat ek gehoor het... (tussenbeide)
Kan u dit net herhaal? --- Ek sê na hulle geruime tyd al so aangegaan het toe hulle die woorde gesê het vir mekaar toe is dit nou wat mnr. Furtak vir my roep wat ek daarin kom en toe dit is nou wat ek gehoor het.
Kan u net herhaal wat was daardie presiese woorde? --- Dat ek sal vir jou kry en dat ek na jou plek toe sal kom met vuur en “I would kill you” en Felix vra vir hom en hoe sal jy dit doen en hy sê al moet ek met 'n mes na jou toe kom.
Is ek reg as ek sê u het nou net bevestig daar is iets wat nou aan mnr. Furtak blykbaar gemik was as so iets gesê was? --- Ja.
Die rede hoekom ek dit vra was mnr. Furtak het ook oor daardie insident met hierdie hof kom praat onder eed en hy was nou herhaaldelik gevra oor wat presies gesê was en hy was aspres gevra oor daardie aspek en wat hy vir die hof gesê het was hy het gesê beskuldigde sal kom en hy sal kom met vuur en 'n mes maar hy moes nou 'n afleiding maak dat beskuldigde sou vir hom doodgemaak het. Daar is niks gesê deur mnr. Furtak anders as wat u nou vir die hof sê dat beskuldigde sou vir hom doodgemaak het? --- Mm nee ek sê nou net wat ek gehoor het.
Ja u sal met my saamstem daar is 'n verskil? --- Ja daar is 'n verskil.
En is ek reg as ek sê al het so iets gebeur of het hy so iets gesê dat dit was nie op u gemik nie dit was op mnr. Furtak? --- Nee dit was nie op my gemik nie.
En as hy sulke woorde nie gehoor het nie dan kon dit nie vir raak getref het nie as ek dit so mag stel? --- As wie dit nou nie gehoor het nie mnr. Furtak?
Ja, want dit is eintlik op hom gemik nè? --- Ja.
Goed, nou my instruksies is beskuldigde sal ontken dat hy so iet ge..., sulke dreigemente gemaak het op daardie dag. Hy sal sê hy was ongelukkig toe hy daar geskakel het maar dit het gegaan oor sy vriendin? --- Presies dit is waaroor die hele ding gaan.
Wat was mnr. Furtak waaroor het dit gegaan hoekom was hierdie dreigemente gemaak was daar gesê dat hy iets moet doen of wat hy nie moet doen nie of wat waaroor het dit gegaan? --- Wat wie nou moes doen of nie doen nie?
Die dreigement jy weet 'n mens maak dreigemente waaroor het dit gegaan? --- Ek sal nie weet nie. hulle twee bel vir mekaar gereeld en dan gaan hulle aan oor die telefoon.
Sover u kan onthou het hy nie, het hy vir mnr. Furtak gesê kyk ek gaan vir jou brand of ek gaan vir jou huis brand as jy dit en dit en dit nie doen nie of hoe het dit gebeur? --- Ek sal nie weet nie.
Mnr. Furtak wat was sy houding u het gesê hy was so, sy persoonlik is, as ons dit nou so weer nag gebruik daardie woord, 'n ontplofbare persoonlikheid maar wat was sy houding op daardie stadium toe hy nou besig was op die telefoon? --- Hy was ook kwaad gewees en hy het soos iemand, hy was nervous hy wou net uit die huis uitkom en by die polisiestasie aankom om net te gaan rapporteer.
So hy was kwaad? --- Ja hy was ook kwaad gewees hy was 'n bietjie nervous gewees hy wou net by die polisie kom.
As jy sê hy was nervous wat beteken dit? --- ek sal nou sê omdat mnr. Paolo dan nou gesê het hy sal plek dan nou kom afbrand en toe sê hy voordat mnr. Paolo daar aankom al is dit watter tyd miskien nou aand of so dan moet hy dit dan al gerapporteer het aan die polisie.
Wanner het mnr. Furtak vir u uit die huis gegooi? --- 'n Jaar terug.
'n jaar terug. --- Ja.
2005? --- Ja.
En het u hierdie sak, hoe lank, so u het met mnr. Furtak gebly vanaf op daardie tydstip ek neem aan u het saam met hom gebly in 2004 dit is in Juliemaand op daardie tyd? --- Ja ek het twee en 'n half jaar vir hom gewerk.
Twee en 'n half jaar daar gebly? --- Ja.
Ek is seker dat u hierdie saak met hom bespreek toe u nou saam met hom gebly het die oor die woordewisseling tussen mnr. Paolo en mnr. Furtak? --- Ja ons het gesels daaroor dan sê hy vir my dit gaan oor Pat oor sy ex-vrou wat nou saam met mnr. Paolo bly en dat hy ontevrede is.
Is ek reg as ek sê dit klink vir my dat mnr. Furtak was baie ongelukkig oor die verhouding tussen Pat en die beskuldigde? --- Ja dit is so Edelagbare nog altyd so.
Dankie Edelagbare geen verdere vrae nie.
GEEN VERDERE VRAE DEUR MNR MURRAY
HERONDERVRAGING DEUR AANKLAER:
U kan nie vir ons enige iets vertel wat gesê is voordat die foon op speaker phone gesit is nie? --- Nee ek kan nie.
Dankie Edelagbare eintlik het ek geen verdere vrae vir die getuie nie.
GETUIE WORD VERSKOON
AANKLAER: Edelagbare ek merk dat dit nou 15:30 is ek weet nie of ons deur die volgende twee getuies sal kom nie.
COURT: Mr Murray your attitude?
MNR MURRAY: Your worship I think I would agree unfortunately we seem to have hit the end of the month and then private practice it means pay out time sir I will be grateful.
COURT: The court will then at this stage postpone the matter for further trial. Are the two of you available to come back to us on Monday 29 May. Thank you so much for waiting the whole day I know you have been here for a long time now but we are not going to finish with your evidence today due to the lack of court time unfortunately. Thank you so much for understanding the two of you are then warned to please be back on Monday 29 May. When you get back now to home or work wherever you are going now please just write down the date because the police is not going to give you another subpoena or a warning for that day. So please just write it down when get there. 29 May thank you ladies. Mr. Paolo the matter is then postponed to Monday 29 May for further trial your bail is extended and you are warned to be back at this court then also Monday 29 May 08:30 that morning.
COURT RESUMES 28 AUGUST 2006
PROSECUTOR: Case number SH/B 75/2005. Presiding Officer: Mr. J Redelinghuys, Prosecutor: N Breyl, On behalf of the defence: Mr. Murray. 23 August 2006 this case was remanded until today fore further evidence to be led by the state.
COURT: Thank you please proceed.
PROSECUTOR: The state calls Lindiwe Mkona.
LINDIWE MICHELLE MKONA: d.s.s.(through interpreter)
EXAMINATION BY PROSECUTOR:
Mrs Mkona do you know the accused before court? --- That is correct.
How do you know him? --- He was involved in a love relationship with my sister Petronella Mkona.
What is his name? --- Landrino David Paolo.
Do you know the complainant in this case Mr. Felix Furtak? --- That is correct.
And how do you know Mr. Furtak? --- The complainant is the ex-husband of my sister that is Petronella Mkona.
Miss Mkona on Saturday 29 August an incident happened
at your home. Can you tell the court what happened it was in 2005? --- On the Saturday your worship it was in the morning we were supposed to attend a funeral of my half brother. I was still asleep it was in the morning but when I woke up everybody was awake. When I got out of my room to went to the front room when I went to the front Felix and Paolo David was there my two other sisters and Latoya. When I got in the front room Paolo was playing with Latoya. Charmaine was chatting with Felix. When I got there I greeted them all. When I got there Pat and Landrino they were about to leave when they left I was left with myself, Felix and Charmaine we were chatting just general. We were discussing about my half brother who just passed away. As we were sitting I decided to go and prepare coffee and I came back we continued to chat. After an hour as we were sitting then I heard a noise from the outside I was sitting next to a window and then I peeped through the window and then I saw Landrino he was having a piece of iron he was smashing windows of Felix’s motor vehicle.
COURT: who was doing this? --- It was Landrino.
PROSECUTOR: If I may ask you, you can just indicate is Landrino you indicated in the beginning you know the accused as Landrino David Paolo. Do you still speak about the accused? --- Yes okay I am going to say the accused.
Yes pleas thank you very much. Right you can proceed. --- He was also having a, he was carrying a plastic bag with a bottle inside. As he was busy smashing the windows I notified Felix and Charmaine inside that the accused was smashing the motor vehicle windows. Then Felix went outside. As he was approaching the accused and the accused hit Felix with the iron and then Felix fell down on the ground. Felix fell down on the ground but I think he tried to get, he also hit him again and then he managed to get hold of the iron and then Felix got hold of the iron and assaulted the accused but I am not certain how many times did Felix assault the accused but actually eventually fell down on the ground. And then the members of the community came to there then because they were watching the whole time then they started to assault the accused. They tied his hands it is then now I went to call the police. Then the police came others they came they phoned the emergency people they bandage Felix on the head and they also treated the accused. Then I accompanied Felix to the police station where he went to give his statement. When we arrived at the police station we were told that the accused was taken to (indistinct).
PROSECUTOR: You also spoke of a third person that he accused was playing with who is that? --- It is Latoya the daughter of the accused.
Is it a small child or is it already a juvenile? --- This year she was going to be three years old.
When you first entered the room and you said your two sisters were there as well as the accused and the complainant, did they speak to each other the accused and the complainant Mr. Furtak? --- No they were not speaking the accused was busy playing with his child and the complainant was talking to, he was speaking to my sister.
What was the accused and the complaint’s relationship as to what you witnessed? --- They were not on good terms your worship because Felix was the ex-husband of the complainant of my sister and then accused was the boyfriend of my sister.
Did they say anything in front of you to each other that made you believe that they were not on good terms? --- They were not, there were several times when they exchanged words because I remember at some stage the one would come when the other one was already at home and they would have problems.
So you know they had problems? --- That is correct.
On this day in question when you entered you said they did not talk to each other was there any vibe or any strange thing at that stage that you felt between them or were they just silent? --- They were just sitting there was nothing strange your worship that I noticed they were just sitting there no one speaking to the other one.
You said basically after the accused and your sister left with the baby you were sitting at home for about an hour at what time was this incident when you first hear the noise at what time was this about? --- Approximately round about 11:00 in the morning your worship.
You talked about the funeral of your half brother was he buried that morning? --- No he was not buried on that day he was buried the next weekend.
How far was this car standing from where you were sitting? --- It was standing outside the yard next to our yard but outside our yard.
If you can state from where you are standing till where if you can show us in court? --- From where I am standing your worship up to the wall.
COURT: About 8 metres is shown.
PROSECUTOR: Could you see the car from where you were sitting or was there a wall that obstructed your view or anything that obstructed your view? --- From where I was standing here inside our yard there is a car that is standing there but it is not in a working condition but I was sitting right next to the corner of that window so I could see clearly there was nothing that obstructed me from seeing the car.
You indicated that it was 11:00 in the morning so I assume the light was good where you were standing? --- That is correct I could see clearly because it was not overcast or raining I could see clearly it was a normal sunshine day.
Your worship at this stage I am going to ask guidance from the court because I was not in the beginning the prosecutor if I ask unnecessary questions if it is not in dispute the court can just indicate to me if it is in order with the court.
PROSECUTOR: Thank you your worship. Miss Mkona if I may just repeat my question could you identify the person who was smashing the windows at that stage? --- That is correct identify very clearly.
When you saw the person smashing the window of the vehicle did he only smash one window or more than one? --- He smashing all of the windows your worship and when we went outside he was still busy smashing the windows.
What kind of car was this that he was smashing? --- It was black in colour it was a Lancier.
And to who did this vehicle belonged to? --- Felix Furtak’s car.
With what did the accused smashed these windows? --- It was a piece of an iron.
And can you indicate to the court how long was this iron bar or this iron? --- (witness indicates)
COURT: Just under a metre is shown.
PROSECUTOR: Were you also outside when the complainant when Mr. Furtak was hit by the accused? --- We were just getting out the door when we saw that the accused was assaulting Mr. Felix.
How far was the accused at that stage from the car when he hit Mr. Furtak? --- He was next to the car at the back at the boot next to the car.
When the accused saw Mr. Furtak what did he do? --- Mr. Furtak was busy screaming at the accused he was asking him why he was smashing his vehicle.
You say the accused hit Mr. Furtak with this iron bar where did he hit him? --- On his head.
When he hit Mr. Furtak with the iron bar did Mr. Furtak still stand or was it at that time that he fell down? --- He fell down on the ground.
Was it only the once that he hit him that the accused hit Mr. Furtak with the iron bar or was there more than one? --- What I am telling the court is when the accused hit Mr. Furtak he fell down but again when he was about to hit him again and then he managed to grab the iron bar.
So as I understand you he was trying to hit him again and then the complainant took the iron bar from him? --- That is correct.
At what stage did you see the bottle in the plastic bag? --- At the stage I was peeping through the window the time he was smashing the windows of the motor vehicle but at that stage I did not see it was a bottle that was inside the plastic.
When did you realist hat there is a bottle in the plastic bag? --- After the members of the community tied his hands up and then this plastic had fallen and then I discovered that it was a bottle that was in that plastic.
Did you open this bottle? --- I did not open it your worship but when I looked at the bottle it was something like acid because the street or the road was smoking.
If I understand you correctly the contents of this bottle was lying, did the bottle break because the contents was on the…? --- It was not a glass bottle your worship but it was something like a plastic bottle it did not break when it fell down and then it spilled.
Did Mr. Furtak have any injuries on him that you witnessed? --- That is correct on his head.
You indicated that you went with him to the police station to lay a charge did you also go with him for medical treatment? --- No, I did not go with him to the doctor for the medical treatment he said at the police station that he was feeling okay that he was going to drive by himself to the doctor.
How many times did Mr. Furtak or you indicated that Mr. Furtak also hit the complainant after he took out the iron bar or took the iron bar form him you indicated that you do not know how many times he hit the accused? --- I can not recall how many times Mr. Furtak hit the accused because at that stage it was when I was busy looking for the numbers for the police.
And the community you said soon after he took the iron bar form the accused the community basically arrested the accused? --- That is correct.
Do you know why they did not arrest Mr. Furtak? --- It was not the first time that the accused did something… (intervention)
I am going to stop you there so at that stage the community that arrested Mr. Paolo did they see him do you think they also saw him hitting this car? --- That is correct so they did see.
Did you personally have any problems with the accused? --- The first time I met the accused I did not have any problems with him…(intervention)
Can I stop you there, is there any reason why the accused can say that you today come and falsely implicate him? --- He might have a reason because at that stage he did not know that he was doing wrong.
Let me rather ask you this way, at that stage when this incident happened with Mr. Furtak’s car was there anything between you and the accused? --- No your worship.
And you say from when you wake up can you think of any reason that Mr. Furtak on that specific morning or day did he give the accused any reason to smash his car windows or hit him with the iron bar? --- No.
Thank you your worship I have no further questions.
NO FURTHER QUESTIONS BY PROSECUTOR
MR. MURRAY: Your worship at this stage I am going to request and adjournment the court gave me permission to (indistinct) if I can just advise the court before we started, sorry your worship, a statement of the witness has just come to hand to me now it was never provided to me. I do have a statement of this particular witness but it does not relate to the proceedings before court at the present time. If I may just state your worship a misunderstanding might have arisen I asked my learned friend if there was only one statement and she agreed that there was. I perhaps was assuming that she was referring the one that I do have to hand which is nothing to do with the present testimony before court. So if I could possibly ask for an adjournment to clear that aspect up obviously I need to consult with the accused.
PROSECUTOR: That is indeed a fact my learned colleague did ask me he only had one statement and I also only have the one in my docket. I do not know about the other statement if it is in one of the other dockets that is not relevant to this case that he had. I do not know why come my learned colleague did not receive this statement from, when he received the rest of the statements. I also indicated to him that there is a second witness that the state, Margaret that the state is not going to call he indicated that he did not find her, if I am not mistaken he said he did not have her statement either. To this effect ja it must be a misunderstanding the state will not have an objection if there is a short adjournment if it pleases the court.
AANKLAER: Dankie edelagbare die verdediging mnr Murray het aangedui hy wil u toespreek.
MR. MURRAY: Your worship I have been able to go through the statement that was provided for me gone through all the various items. Unfortunately I had just been able to consult with the accused now. The court will note it was a bona fide mistake on the part perhaps on the part of both of us a misunderstanding we are having a lot of statements and dockets and so on. At the same time I do not wish to inconvenience the witness before court. I think she had perhaps trauma as it is but ethically speaking your worship I would need to consult with the accused particularly if it becomes necessary that I place him in the dock. There necessary need to be a lot of things I have to in effect be his spokesman and put things to the witness. Obviously it would (indistinct) for me to do so and get full instructions to be able to do so. So the request is for a postponement at this stage. I am fully aware of the long time that this case has been on the court roll but unfortunately I am in this ethical dilemma.
PROSECUTOR: Thank you your worship the state has part in negligence in this matter as that we did not provide the statement to the defence as my colleague indicated it is a bona fide mistake. The evidence that the witness has given it seems corroborated to a certain extent the evidence that has already been led. But it is also true that the accused must have the right to a fair trial and I understand my colleague’s situation so the state cannot have an objection at this stage if the court will allow a remand.
COURT: It is indeed unfortunate that the relevant documentation was not provided timeously to the defence although it is true that not much of the evidence of the current witness should have come as a major surprise today. It is off course also true that the defence should put during cross-examination any version of the accused to this state witness and this witness clearly is in a different category as Mr. Furtak was as she is a sister of the relevant witness that we heard of earlier Petronella. The court is then willing to grant a postponement to afford time to the defence to fully consult with the accused regarding this witness’s position and evidence. Miss Mkona that unfortunately means that you will have to come back to us unfortunately at a later date and for this waste of your time I do apologise. The court will then grant the postponement as requested.
The matter is then postponed to the 6th of next month Wednesday 6 September for further trial. You will then at this
stage remain in custody until 6 September. Miss Mkona you are then warned please as state witness to be back with us Wednesday 6 September 09:00 that morning please again. Thank you so much for understanding.
COURT RESUMES 6 SEPTEMBER 2006
PROSECUTOR: It is today 6 September 2006 Case Number: SH/B75/2005, Presiding Officer: Mr. J Redelinghuys, Prosecutor: N Breyl, On behalf of the Defence: Mr. Murray. Interpreter: Mr. Da Costa.
Your worship on a previous occasion the case was remanded until today for Miss Lindiwe Mkona to be cross-examined after she testified as the court pleases.
LINDIWE MICHELLE MKONA: s.u.o. (through interpreter)
CROSS-EXAMINATION BY MR. MURRAY:
Miss Mkona you have indicated to the court that you know the accused before court he was in a relationship with your sister is that correct? --- That is correct.
You also indicated that you knew Mr. Felix Furtak the complainant in this matter? --- That is correct.
Miss Mkona will I be correct in saying that the relationship between Mr. Furtak and the accused before court was not particularly good? --- That is correct.
Would I be correct in saying in particular the relationship was not good because there was a dispute over a child is that correct? --- It is not particularly the child but also the marriage.
When you say the marriage was it Mr. Furtak was unhappy about the break up of the marriage what was the situation? --- That is correct because he was not happy about the marriage that was called off.
Now you confirm that you have testified in court that you wee a witness to the incident I just want to confirm with you can you remember on which date it happened? --- I am not certain about the date your worship but I can recall it was on a Saturday.
Now you have advised the court and I think Mr. Furtak did say that there was a, that someone in your family had passed away is that correct? --- That is correct so.
Was the funeral taking place on that day what was happening? --- The funeral was postponed to the next weekend.
I see, now was Mr. Furtak invited to the funeral on that day how did it come about? Mr. Furtak was he invited to the funeral or was he informed that there was no funeral that particular day? --- He was informed that the funeral was postponed but he came there knowing that we lost our family member that is the reason why he came to our house.
You testified that you were allegedly a witness to the incident that happened on that particular day am I correct? --- That is correct.
And would you agree with me that if I understand your testimony on that particular day you said that there were other people present at the same time as well? --- I agree your worship.
All right now if I can just ask you when the arrest took place of the accused were you present or can you follow up then? Perhaps I should just assist you there you have given an outline of the incident as it allegedly happened, I am perhaps staring at the other end when things had finalised, were you present when the accused was arrested? --- I was present your worship.
And were there police officers present there? --- That is correct the police were present.
As an important witness did you speak to the police officer volunteering any information r anything of that nature? --- That is correct I did informed the police about the incident about what took place.
And did the policeman take down statements? --- Yes that is correct.
Now I do intend handing you a statement at this stage but if you can just have a look at the statement and if you could perhaps just identify whether it is your signature there on the statement? --- I cannot see my signature here your worship.
Just look at the bottom of the page there? that is a photostat copy but I assume it is the same as the one in the docket. Does that look like the statement that you gave to the policeman? --- Do you want me to read it?
No I am going to refer to the detail perhaps, you have indicated that is your signature there? --- That is correct it is my statement.
The point that I am getting at just in brief you will notice that on that statement it was only taken on the 26 August 2005 is that correct? --- On the day of the incident the city police came there and then I gave my statement to a police lady who was present there. Then the police came again for a second time and then I gave another statement.
So the initial statement that you gave was that to the city police? --- Yes.
And the statement that you have looked at now was that to the South African Police? --- That is correct.
Now I notice in the statement also that you were not too certain of the date when this incident happened. Were you able to see your city police statement to refresh your memory or I notice from this particular statement that you were also uncertain as you are today of the date on which this incident allegedly happened. Did you have a look at your city police statement or did you try and find out the exact date when incident happened? --- No I could not see, I was in a hurry because I wanted to take the complainant to the hospital so I did not see if the date was correct I mean to the police station.
I do know if you quite understood my question correctly. What I am saying is you said you gave a statement to the city police on the day when the incident happened at the scene am I correct? --- Yes I did.
Now did you see that statement again when you went back again on 26 August? --- No.
Because am I correct in saying the second statement you were uncertain of the date you did not think to make sure of all your facts to go and have a look to make sure which date it was or perhaps find out from the day of the funeral of your relative, it is something one does not forget, to get the correct date? --- I was not certain about the date as it was now some time now that they call me again on the second time.
During this time did you, obviously the incident happened did you have contact with Mr. Felix Furtak? --- That is correct.
Did he come to the actual funeral the next weekend and did he come and visit you at other stages? --- He did not come to the funeral as he was still under pains or he was still injured and he was scared to come but we had contacted telephonically.
Would I be correct in saying that you perhaps discussed this incident that happened with regard to the accused on this day. Did you speak to Mr. Furtak about it did he ask you about what was going on and did you speak to him about it? --- Yes we did discuss it but we were just shocked about what the accused had done.
And then when you went back on 26 August to make the statement to the police the South African Police was this incident was it still clear in your mind exactly what had happened on that day? --- It was still clear in my mind your worship.
If we can go back to the date the accused has been charged 29 January 2005 okay that is seven months after you have made your statement to the police and the statement that is available to us today. On that particular day you stated that you had been asleep and that you woke up and you went to make coffee am I correct? --- That is correct.
Who was all present? --- It was myself my elder sister Charmaine, Petronella it is also my sister, Felix, the accused and a child.
Is that Letoya you are speaking about? --- Yes that was the child I am referring to.
Now were there any other family members present or were those the only people present? --- At that stage it was only those people that I have just mentioned.
Can you remember what time was this? --- Approximately round about 11:00 that morning.
Is that the time you got up and made coffee or what time did you actually sit down? --- When I woke up it was round about 10:00 but when I went to sit with the other people it was about 11:00. if I may just correct something your worship? When I woke up to greet them it was round about 10:00 and when they left that is the accused with the children it was round about 11:00.
Did you actually sit with them during this time between 10:00 and 11:00? --- All of them?
The people you have indicated now? --- That is correct.
And the child Letoya? --- The child was present.
Now you indicated to the court on the previous occasion the situation was normal that there was no problems whilst you were sitting inside there? --- That is correct.
You know Mr. Furtak you know the accused before court you have had contact with them. At that stage was there any indication that something was going to happen? --- No your worship.
Now this where you were sitting is it a small room big room can you give an indication how big is this room where you are sitting? --- It is a small house the size of the houses in Guguletu they are very small houses so it was a small room.
Can you just give an indication how far perhaps you can just point out something in the court so that we can see what the size of it is? --- From where the prosecutor is sitting up to the front here this table.
COURT: Three to four metres and the width? --- From the bench up to this table your worship.
About two metres wide.
MR. MURRAY: And the windows are there windows in this room? --- That is correct.
How many windows are there? --- Where we were sitting there was only one window.
Only the one window and you indicated that you were looking out of this window? --- That is correct.
Now you mentioned that the accused and your late sister and the child left am I correct? --- That is correct.
Did they great you when they left did they say where they were going what was happening? --- It is only Petronella who mentioned that they are leaving now and she was leaving with the accused.
So your sister informed you that they were going? --- Yes.
And the accused where was he what, how did that happen? --- He did not do anything he just went out because he was carrying the child.
The reason why I am asking you this is that my instructions from the accused dare that he had actually come to fetch the child and he found the child in the car in Furtak’s car. --- The accused did come to fetch the child and his girlfriend that is my sister but when I woke up the child was not in the car they were all sitting in the room.
Did you actually noticed at any stage that the chid was in the car before you knew that something was going to happen the incident that you have told the court that you witnessed. Do you know that the child was in the car at any stage? --- No your worship.
Once you sister had basically said that she was leaving and you say that she left with the accused and the child the situation is still normal at that stage? --- That is correct.
Where was Mr. Furtak at that stage? --- He was still sitting with us inside the house.
You mentioned that it is a very small room and that he was sitting there with you, were you sitting talking to the other people in the house in the room with you? --- That is correct he was talking.
I see and then what drove your attention to look out the window? --- We heard a noise as the accused was busy smashing the windows.
When you say you heard the noise did you hear the noise or did you see the accused doing it what…? --- I first heard the noise and then I looked through the window.
And then you looked through the window did you stand up to look through the window or what happened? --- I was sitting it is a big window so there was no need for me to stand up I just drew the curtain and then I looked through the window.
So would I be correct in saying that it took you perhaps a few seconds you just had to turn and look? --- That is correct.
Mr. Furtak was still sitting with you then? --- Yes.
Did you, were you aware of what Mr. Furtak what did he do at that stage? --- We were still busy talking and then I draw their attention when I looked through the window and then I shouted your worship.
So there were other people sitting in the room you heard the noise you looked according to you, you saw the accused breaking the windows and then did you turn to tell the people what was going on how did it happen? --- That is correct I turned around and I told them what was taking place.
So you in fact is the person that raised the alarm if I can put it that way? --- That is correct.
And you are certain of that you say that these facts were very clear in your brain? --- I am certain.
The reason I ask you that when Mr. Furtak came to testify in court he stated that it was Mr. Boetie Mkona that in fact warned them of what was going on? --- Mr. Mkona, Boetie was outside I was inside I alerted them.
I will come to that point later on but would you agree with me that if he came to tell the court that it is Boetie Mkona who gave him the warning that perhaps it is incorrect he was mistaken? --- He made a mistake.
Now you have raised the alarm did Mr. Furtak get up and the other people what did they do now? --- That is correct he stood up and he went outside.
Is this now Furtak? --- That is correct.
And yourself what did you do? --- I also went after him and all of us went after him wanting to know what was taking place or what was going on.
You all go out the door to go after Mr. Furtak? --- That is correct.
Now you go outside did you in fact see Mr. Boetie Mkona outside there? --- That is correct I saw him he was outside with his friend.
Is he your brother? --- Yes he is my brother.
Does he live in the same house or does he live elsewhere? --- He lives in the same house.
Now Mr. Furtak goes outside what was the, did you have a good view of what was going on when you were behind Mr. Furtak? --- That is correct I had a good view.
What was the accused actually doing can you just describe to the court precisely what he was doing? --- He was busy smashing the windows of the motor vehicle.
Can you just describe to the court how was he doing this was this the front windows the back windows where was he…? --- He was moving around the vehicle smashing all of the windows.
And this is while you were all out, as you came outside am I correct? --- That is correct.
It is my instructions that he accused will deny that in fact that he did anything of that nature. --- He did smash the windows.
Was your sister or the child what had happened to them? Or perhaps if I can ask you if I can just ask you on that point you said that the accused and your sister and the child basically bade you farewell and they left the house. How long after they had left did this incident happen? --- Approximately round about 30 to 45 minutes.
Now my instructions are that your sister also had two children is that correct? --- Yes that is correct.
Latoya and the infant? --- It is Latoya and the elder brother that is Thando.
Where was Thando at that stage? --- He was present at home because he came with Felix.
Are you saying that Thando came with Felix on that day we are talking now on 29 January? --- That is correct he came with Felix on that day.
Where was Thando when this incident was happening? --- when the incident took place Thando was present. Just to correct again there he came with Felix from Woodstock and then he went to play with his friend.
That is at your home in Guguletu? --- Yes.
And when this incident was happening did you see where Thando was? --- There was no time for me to see if Thando was around the time of the incident but I know he was also around in the area in Guguletu.
Just for the record my instructions are that it in fact was Latoya who was the child who was sitting in the car at that time? --- Latoya left with Petronella and then he left to Philippi.
Am I correct in saying that all you, you have stated now when I asked you that question that the time that lapsed between your sister and Latoya leaving the house where there was an half an hour. Did you go and check to see that they in fact left the vicinity of your house outside? --- I did not go outside to see if they were still in the vicinity but they did come back where there is a time now when the accused was arrested.
So would I be correct in saying that you could not state it as a fact that Letoya in fact had gone back home to Philippi or whatever? --- I can say that your worship that they left for Philippi because they were contacted telephonically and that is when they came back.
Did you do this yourself? --- No it is not me your worship.
So it is not something that you have seen yourself or that you have done yourself am I correct? --- That is correct Charmaine is my sister she came to me she wanted the numbers of my sister and then I gave her and she phoned her.
As far as you are concerned you gave her the numbers as far as your own personal involvement is concerned? --- I gave her the numbers and then she phoned.
Now you go outside and you say that the accused was busy smashing Mr. Furtak’s vehicle? --- That is correct.
What happened then I mean did anybody say anything what was happening? --- People did scream when Felix went outside we went also the accused started to assault him.
Did Felix go, when you all came out how many people came out of the house can you remember was it everybody sitting in the lounge or just you and Felix? --- Felix was the first to left the house and then I followed myself and my sister Charmaine.
Did you follow shortly behind Felix or how did it happen? --- Shortly after Felix left the house and we also followed.
So as I understand it you walked basically Felix leading you all went out is that right? --- That is correct.
When you came out did the accused was he still busy smashing the windows? --- That is correct.
Did anybody shout at him at that stage to stop him before you actually got to where he was? --- People were standing outside but they were people I do not know they were shouting as he was busy smashing the windows and he was holding something in his hand but I did not know what it was at that stage.
So there were other people also from the area also standing there? --- Yes.
You mentioned I stand under correction I think you said the car was approximately five metres away from the house? Perhaps you can just give an indication when you come out of the front door of the house how far was the car away? --- From where I stand your worship up to where the state or the prosecutor is sitting.
It is a very short distance away? --- That is correct.
And you mentioned that Felix then approached the accused he was busy smashing the car? --- Yes.
Did you follow on shortly behind Felix when he approached the accused or did you stay at the door what did you do? --- All of us went out as we were following Felix.
And you mentioned that the accused then threatened Felix? --- He did not threaten the complainant he assaulted the complainant.
I see, did Felix approach the accused or how did it happen how did they meet up where you are alleging that the accused assaulted the complainant? --- The complainant, how Felix did approach the accused he was screaming wanting to know why he was smashing his car.
And then where was Felix then assaulted? --- At the back of the vehicle.
I see, so you are certain that is exactly what happened that is very clear in your brain that is what the situation was? --- I am certain.
And then the fight happened there at the car okay am I correct? --- Yes.
And you mentioned that the accused at one stage also was overwhelmed and he fell is that correct? --- That is correct.
And you are certain that is correct the incident as it took place? --- I am certain.
Because the reason I asked you that again Mr. Furtak when he came and testified here he stated that the accused ran away and he had to chase the accused. --- After Felix had fall down on the ground and then he managed to get hold of the iron bar that is when the accused got a chance to run away and then the complainant chased after him and then he started to assault him.
I am not clear on you there because that is why I specifically asked you is this where the accused fell and you agreed that is where the accused fell he was assaulted there? --- What happened is that the complainant fell down on the ground and when the accused was about to hit him for the second time the complainant got hold of the iron bar and then the accused ran away he did not run for a long distance and then that is how the complainant assaulted the accused.
Because I put it to you that the words that Mr. Furtak mentioned in court here if my notes are correct he said I ran out and saw the accused running away. This would indicate this happened before there was any contact between him and Mr. Furtak? --- … (intervention)
PROSECUTOR: Your worship if I can just ask the defence to also indicate as my notes indicate he said he did run away two metres about so it is two metres maybe just a distance also with that as the court pleases.
MR. MURRAY: If I can just state the indication that he has given that I ran out I saw the accused running away. Now you have given the indication that the assault whatever happened, happened next to the car. That they already had contact that you say the accused assaulted Mr. Furtak and that the accused then was able to get up and as you said he ran away? --- That is correct.
I put it to you that the picture that Mr. Furtak in testimony in chief that he painted for the court is that the accused was already moving away from the car he was already running away before there was any assault that took place by the accused on Mr. Furtak or vice versa? --- What I am telling the court is what I witnessed what the complainant is telling I do not know.
Now if we can just go further you said that on your version that the accused assaulted Mr. Furtak who initiated the assault? --- The accused assaulted the complainant your worship.
Can you just describe to the court when you say he assaulted him how did it happen how far was Mr. Furtak from him what happened? --- There were very close to each other that is how the accused assaulted the complainant.
Were they busy arguing or do you know what happened how did it happen? --- The one who was talking was the complainant he was asking why he was doing, why he was smashing the windows of his motor vehicle the accused was not responding.
Was the accused still smashing the car or what was he doing? --- No he was not he was going to the complainant with a small piece of iron bar.
What did the complainant do did he keep continue walking up to the accused or what happened? --- That is correct he was continuing going to the accused.
And the accused did he have the iron bar with him or what happened? --- That is correct.
Because my instructions it has also been put to Mr. Furtak was that the accused was placed in a position where he had to defend himself against Mr. Furtak he will say that Mr. Furtak was in fact the one who launched the attack on him? --- Accused was the one who had the iron bar and he was smashing the windows when the complainant approached him he was the one who assaulted the complainant .
Did you see how he assaulted him where was the complainant assaulted? --- It was next to the motor vehicle.
I am speaking about where did, where was the complainant assaulted you mentioned that the accused assaulted the complainant with an iron bar where how did that happen can you just describe that? --- He first assaulted the complainant on the head and the complainant fell down on the ground.
And the other people standing around there what did they do? I am speaking now once the complainant had fallen. --- The time the complainant fell down on the ground people were screaming because they were afraid of the iron bar that the accused had on him and this container that he also had in the other hand.
What container was this? --- It was a plastic container that was inside the plastic bag and when it fell down we discovered it acid.
Did he have this plastic in his hand whilst he was assaulting Mr. Furtak the complainant? --- That is correct.
At what stage did this stuff fall on the ground? --- The plastic fell down at this time the complainant was also assaulting the accused that is when the container fell down on the ground.
You are sure that this container was not on the ground already? --- That is correct I am certain.
Do you know what happened to this container after this incident? --- I pointed the container to the police your worship and then the police took it.
I see did you in fact see Boetie doing this or were you told that Boetie did this? --- I was the one who pointed the bottle out to the police.
The reason why I am asking you that is it is once again my instructions that the accused will deny that he had any acid with him as you allege? --- He is not telling the truth your worship.
You mentioned that Furtak fell if I understand you correctly then he was able to, Furtak was then able to get the iron bar? --- That is correct the complainant did fall down on the ground and when the accused was about to hit him for the second time and then he got hold of the iron bar.
So if I understand your evidence correctly you said when the accused was hitting him the second time did he only hit Furtak once? --- I think so it was once but because when he was about to hit him again and the complainant managed to get hold of the iron bar.
You mention you think so did he in fact hit him once or are you just assuming? --- It happened so fast I think the accused assaulted the complainant once because when the complainant approached the accused and then he assaulted him and he fell down on the ground.
And then Mr. Furtak then in turn assaulted the accuse dam I correct? --- That is correct that is when the members of the community also helped the complainant to assault the accused.
My instructions are that you are correct on that point in that the accused will say that he in fact was assaulted by Mr. Furtak in trying to defend himself and that he experience being assaulted he is uncertain by somebody from the back as well and that is when he fell onto the ground? --- The complainant assaulted the accused and that is when the other members of the community came and then they assaulted him after that they tied his hands up.
Where was he tied up where he fell? --- That is correct.
Once again I would assume that was in the close vicinity of the car? --- It was a few metres from the vehicle your worship.
Now Mr. Furtak what happened to him then? --- I went to phone the police your worship when the city police arrive they were treated that is complainant and the accused and after that I took him to the police station.
You have mentioned this plastic bottle and that the accused had this iron bar is that correct? --- Yes.
Was there anything else confiscated from the accused? --- Nothing else was confiscated from the accused.
Miss Mkona when the accused was being assaulted on the ground did you in fact stand did you watch did you see what was happening? --- When the accused was assaulted I was standing there and then I became afraid that they are going to hurt him that is when I decided to go and contact the police.
Because my instructions are in fact that the accused was in fact stabbed whilst this tussle was taking place did you witness that? --- No I did not witness.
And then you mentioned that you gave out the cell phone to phone Petronella is that correct? --- That is correct.
Do you remember what her number is? --- No I cannot recall the number.
I will tell you why I am stating that it is also again my instructions that the accused will say that they only had one cell phone in fact the cell phone that they as a couple had the accused had on him and in fact it is the cell phone…? --- That is correct they did have one cell phone but it was in Petronella’s possession.
My instructions are that the accused had the cell phone and he will say that the cell phone fell whilst Furtak was busy assaulting him Furtak then picked it up? --- I do not know about that because the reason why Pat came back she was contacted she was unaware that the accused had come back to smash the motor vehicle of the complainant.
When did Pat arrive on the scene was this whilst the fight was going on? --- Petronella came at the time the accused and the complainant were treated by the emergency people.
How long was that after the assault? --- Approximately an hour or less than that.
Was it closer to an hour when you say an hour or less there where the fight is what were they doing for an hour? --- Are you referring now to the… (intervention)
As a starting point you mentioned if I understand the assault itself the accused has said that he was assaulted first you say that Furtak assaulted him first when that assault take place how long did that take was this over in a few minutes? They hit each other and the accused was then assaulted by the community and everybody else standing around there how long did that incident take place? --- I will say that it took round about 30 minutes.
Do you understand what I am saying you ay it took 30 minutes. You have mentioned that the accused hit Mr. Furtak with the iron bar right. Mr. Furtak then gets hold of the iron bar and assaulted the accused and then he goes down. How long did that take? --- I thought the questions was that the whole incident including the assault by members of the community… (intervention)
No I am just talking about the assault itself? --- It did not take a lot of time.
A few seconds a few minutes? --- Round about 10 or 5 minutes.
And then you say the police came after an hour? --- I do not say the police came after an hour I said I went to call the police round about 10:00 because they were not far from there.
I do not know if I heard you correctly what were you referring to that took an hour? --- I thought you asked when Petronella came back the time when she arrived.
When did the ambulance arrive or was there an ambulance or how did the parties go they were both taken for medical treatment you say how long after this incident did that happen? --- It was not an ambulance it was this red medical rescue motor vehicles it did not take a long time.
And both parties were treated that is the accused and Mr. Furtak? --- That is correct.
What did Mr. Furtak do then? --- After hew as treated then we went to the police station to lay a charge.
Did you in fact go with him? --- Yes I did.
How long were you at the police station? --- 30 minutes.
And then? --- He laid a charge after he had given his statement he was told to go to the doctor.
And then did he do that? --- Yes he did.
And did you go with him? --- No I did not.
I see what did you do then? --- I went back home your worship… (intervention)
PROSECUTOR: Your worship if my learned colleague maybe just indicate where he is going with this question seeing that it is after the incident took place and what the complainant did.
MR. MURRAY: I will come to the point shortly your worship. Perhaps it is not that important a point but you mentioned that your sister came back came to the scene after an hour. --- I will say that is correct that it took an hour for them to be there after the whole incident took place and then they were treated the accused and the complainant at the time they went to the police station they were already there.
So did you see your sister come onto the scene? --- Yes I did with the child also.
I have no further questions.
NO FURTHER QUESTIONS BY MR. MURRAY
RE-EXAMIONATION BY PROSECUTOR:
This Mr. Boetie you indicated it is your brother, did you see, sorry he was not in the house I gather from your testimony but did you see him at the incident where the car was smashed did you see him after that there? --- That is correct the time the accused was busy smashing the complainant‘s motor vehicle I saw him he was standing outside with his friends.
Is it possible that he also screamed at the accused or do you not know? --- I do not know whether he did scream or
shout because there were other people standing there.
Just one more question, from your evidence it sounds Mr. Furtak was assaulted by the accused and then he took off the bar and then you said you think he hit him once. Is that because the other people came also to intervene or what happened? --- The members of the community only came to intervene when the complainant assaulted the accused because they were also afraid of the iron bar that the accused had in his hand and the plastic container that he had.
Did you say he only, the complainant only hit the accused once because the community intervened or because he only wanted to hit him once? --- I cannot say what the complainant was thinking whether he wanted to hit him once or not.
You say you are not sure about the date that it happened but you were sure it was on the Saturday that it was supposed to be your brother’s funeral? --- Yes I am not sure about the date but it was on a Saturday.
Thank you your worship I do not have any further questions.
NO FURTHER QUESTIONS BY PROSECUTOR
PROSECUTOR: The state again request it seems it is common cause that the questions that was put to the complainant himself that the accused did hit him with an iron bar however it
seems self defence. The state is going to request if there is going to be any objection if the state hands up the J88 as evidence and the contents thereof as the court pleases.
MR. MURRAY: Yes your worship there will be an objection.
COURT: Are you saying that the doctor should testify?
MR. MURRAY: That is correct.
PROSECUTOR: Your worship seeing the defence is going to object I did inform the investigating officer to get hold of the doctor and he made a statement to me that he cannot find the doctor and he is not working at this hospital anymore. So the state do not want to waste the court’s time any longer with evidence that probably will not (indistinct) by the court because of the absence of such a witness. The state will thus at this stage close its case.
COURT: Thank you Mr. Murray.
MR. MURRAY: As it pleases the court your worship I also confirm that I have had a discussion with my learned friend your worship I indicated I spoke to the accused I have a letter her form Pollsmoor which indicated his medical status.
I have the accused’s permission to give it to the court I request I receive it back I need it I should ask that the court take note of it. It is my instructions to call the accused as a witness but he has advised me that in view of the condition apparently he is not getting the required medication at Pollsmoor and he has stated that he does not actually feel up to it to be able to stand in the stand today.
He have conceded that we help away the witness who has just testified and the request is for a postponement that the accused will hopefully regain a bit of his health and be in a state to come under cross-examination as I am sure he will be once we put him in the stand. I do have a letter here if I may just hand it up it indicates the accused’s medical status.
COURT: Thank you to respect the accused’s privacy the court will not put the contents of the letter on record. Mr. Murray will you be able to address the issue about medication in the next few days?
MR. MURRAY: Yes your worship I will perhaps take it up with Pollsmoor. I understand there is another legal representative who is also involved with the accused and perhaps take it up with her as well to see what steps can be taken and hopefully the appropriate (indistinct).
COURT: Mr. Breyl anything from your side?
PROSECUTOR: Your worship the state is going to request that the court marks this a final remand for the accused as the state is at this stage not prejudiced and had its witnesses came to court. But on the next occasion it can be marked final as the court pleases.
COURT: In light of the request that the accused is currently
not medially well and fit to testify the court is willing to grant a postponement at this stage for the defence case.
COURT RESUMES 23 OCTOBER 2006
AANKLAER: Dit is vandag 23 Oktober 2006 saaknommer SH/B75/2005 Voorsittende Beampte: Mnr J Redelinghuys, Aanklaer: Mnr Breyl, Namens die Verdediging: Mnd Murray. Die saak is uitgestel na vandag toe vir verdere verhoor. Die staat het reeds op 'n vorige geleentheid sy saak gesluit en dit is dan vandag vir die verdediging om te getuig.
MR. MURRAY: As it pleases the court your worship I speak English for the convenience of the interpreter your worship if I may call the accused to the witness stand.
EVICENCE ON BEHALF OF THE DEFENCE
LANDINO DAVID PAOLO: d.s.s. (through interpreter)
EXAMINATION BY MR. MURRAY:
Mr. Paolo you are obviously at this time aware and you pleaded not guilty to a charge of attempted murder on one Felix Furtak also one of malicious injury to property and also one of intimidation in terms of the act or alternative one of assault. Do you understand the charges that were brought against you? --- That is correct.
You do, now before we get to them I just want to confirm with you, you have also heard by the witnesses that the
alleged intimidation took place on 24 July 2004 and that the alleged attempted murder then took place on 9 January 2005. before we get to the alleged events your version of the alleged events of what happened on that day could you indicate to the court the main complainant in this matter if I can put it that way Mr. Felix Furtak how did you come to know Mr. Felix Furtak ? --- I knew Furtak because he used to come to my wife, to my girlfriend’s place as a friend. After some months or a year they got married.
Now you confirm that Mr. Furtak was married and I understand that at a later stage he divorced your girlfriend and that is Miss Petronella Mkona is that correct? --- That is correct.
Can you indicate to the court when as I understand it Petronella then came back to a relationship with you, can you just indicate to the court when did Petronella come back to you when she left Felix Furtak? --- When Felix and Petronella got married after three months Petronella came back to me.
Can you give an indication to the court the year when did this happen? --- 2003 ye.
2003, so am I correct in saying that there has been an allegation that you intimidated Mr. Felix Furtak and this took place on 24 July 2004 so am I correct in saying that at the time of the allegation of intimidation that Petronella had already returned to your home is that correct? --- That is correct.
Now I understand there was also further a child born of the relationship that you had with Petronella Mkona is that correct? --- That is correct.
Now if you can as we have discussed very briefly just outline to the court what Mr. Furtak’s attitude towards this child was and what in fact happened? --- When they got married Petronella she had a boy 8 years old so she took the girl Furtak’s house and with the divorce she left the boy behind at Furtak’s house. Petronella came back to me and I asked Petronella where is the boy Petronella said no I left the boy behind at Felix house and we went to Felix’s house and we took the boy.
Can you just indicate to the court who was the father the biological father of the boy and the girl? --- … (intervention)
PROSECUTOR: Your worship before the accused answer this question I was not present when Mr. Furtak testified it is common cause that there was a problem between the accused and Mr. Furtak but I do not know what the relevance is of going to the extent of the relationship between Mr. Furtak and the son of Miss Mkona and the accused etcetera. I do not know if Mr. Furtak testified about it or it was only put to him in cross-examination. I do not see that it is of relevance as to why there was a quarrel or what happened on this specific day as the court pleases.
MR. MURRAY: As it pleases the court your worship the defence is just basically trying to give a background to the events that we will go into detail on with regards to the main charges the accused is facing. I can perhaps cut it a bit shorter if you can just confirm, if we can just perhaps just cut it a lot shorter then. Mr. Paolo your relationship with Mr. Furtak could you just tell the court was it a good one before the dates of 34 July and 29 January 2005? In other words did you have problems was there problems between the two of you? --- Yes that is correct we had problems because he wanted to take the boy and the girl to the social worker.
Am I correct in saying also very briefly that there were other court cases that happened? I do not want to hear detail about them just that there were problems is that correct? --- That is correct.
Now if we can just move forward now you have heard that there is a charge of intimidation against you if we can just deal with that incident that allegedly happened on 24 July 2004. --- On 24 July 2004 there was a problem because Furtak went to lay a charge against us to the social worker that me and Petronella were drinking a lot and we did not have (indistinct) we did not have money to look after the children that is when the problem started in 2004.
Now you heard the evidence if we can just deal with the evidence as we are dealing with it on 24 July 2004 was Petronella Mkona was she living with you at that stage? --- That is correct.
Now you heard that Mr. Furtak and also Miss Molly Allison also came to testify, they alleged that you phoned Mr. Furtak on 24 July 2004 and that you threatened him over the telephone and that you made certain threats that you were going to assault him and you threatened to kill him and that you were going to burn his house down. --- That is not true your worship.
Mr. Furtak comes to court as you have heard him saying under oath and he said that you phoned him and that Miss Allison heard a voice which she said she could recognise as you are you saying that is false? --- I did not call Furtak to tell him I am going to kill you or do something wrong to you I did make a phone call to Furtak.
COURT: You did not call at all or you did not threaten him during the call? --- I did call him but I did not say I was going to kill him I am going to shoot him or to beat him.
Now when you say you did call him that is why I put it to you that on 24 July 2004 did you in fact call him? --- I knew that I did call him but on the 14th I did not call him to say I am going to kill you I did call him on another day to tell him to leave my family alone I am able to raise my kids and to look after my girlfriend.
I see, now Mr. Furtak has specifically said to court in the phone calls that you phoned him and you threatened him. Did you in fact threaten his life or to burn his house down. The phone calls that you gave him that you phoned through to him did you in fact threatened to do something to him in other words did you threaten to cause harm to him or his property if he did not leave you alone? --- That is not so your worship.
Now if we can move on to 29 January 2005 you heard the evidence of the witness Mr. Furtak once again you also heard the evidence in particular Miss Lindiwe Mkona Petronella Mkona’s sister. Now, can you tell the court in your own words on the morning of 29 January 2005 were you at the home of the Mkonas? --- On that day I was to Petronella’s hose your worship.
What was the purpose of your visit to Petronella’s house? --- I went there to Petronella and my baby to take them back home because they were living in Guguletu I was living in Philippi.
On that morning you have heard the evidence that Mr. Furtak was present at the house of the Mkonas did you in fact see him there or did you expect to find him there? --- When I got there in Guguletu I saw Felix car was standing it was parked outside and my daughter she was also inside Felix’s car.
What happened then? --- When I got there when I saw my daughter inside Felix’s car I was not happy because I knew that me and Felix were not in a good relationship and I opened the door I took my daughter and banged the door. When I banged the door I saw Felix running next to me. Felix called me stupid why are you banging my door. I told Felix no I took my daughter because my daughter is not allowed next to you and then Felix started insulted me and he smacked me. When he smacked me then I was cross I took a piece of stone and I hit him with a piece of stone your worship.
When Felix hit you can you just describe to the court why did you not just run away? --- I did not want to run because I am a man and I was protecting myself and protecting my daughter.
You heard further that Felix said that you hit him with an iron bar can you just explain to court what happened then? --- I did not hit him with an iron bar I only used a stone and that stone did not go to Felix it went right to his car.
COURT: Are you saying the stone did not hit him? --- That is correct.
MR. MURRAY: When you say the stone hit his car can you just indicate to the court where it hit the car did you see where it hit? --- The passenger window.
You heard that Mr. Felix Furtak alleged that you hit him with an iron bar did you in fact hit him with an iron bar what is your version of events there? --- I only knew when I threw the stone to him and the stone went through the passenger window and Felix came to me and we hauled each other and we started fighting I did not have the iron bar.
And then what happened? --- After that when we hauled each other started fighting each other then I saw people came next to me with a iron rod and they started assaulting me and the people of Lindiwe’s house also they came out all of them they were fighting with me and I was tied I lost my conscience at that time. When I was tied I do not know what happened to me when I realised I was already in hospital even the time when the ambulance arrived there and the police arrived there I already lost my conscience. I did not know what happened to me on that time.
Now you heard the evidence of Mr. Furtak and you also heard the evidence of Miss Lindiwe Mkona. Mr. Furtak mentioned that he tried to chase you at one stage is this correct positioned or what happened? --- Yes when I threw the stone and I tried to run away and I fell and in fact there were three of them and they grabbed me and they started hitting me your worship.
You have indicated to the court that you also you have lost consciousness is that correct? --- That is correct.
And you also landed up in hospital is that correct? --- That is correct.
Now you also heard the evidence of both Mr. Furtak and Miss Lindiwe Mkona where they mentioned that there was a bottle that contained acid or they thought it was acid that you brought along what is the situation there? --- That is correct I had a container but in that container was not acid it was Handy Andy in fact to use for my toilet.
Now is this something that you have just remembered now why was it not mentioned earlier on? It has never been mentioned until today that you had this Handy Andy with you is this something that you have just remembered in the course of time? --- No I did not remember that I see that things for a long time I had it in my head.
On this particular day did you wish to kill Mr. Furtak did you have any intention to do so or to injure him in any way? --- On that day I did not even know we were going to meet me and Furtak at my girlfriend’s house because my intention was to go and fetch my child and my girlfriend. My intention was not to go and kill Furtak because I did not know Furtak would be there and my intention was never to kill Furtak in my life.
Did you wish to damage any property belonging to Mr. Furtak? --- Not your worship.
Thank you your worship nothing further.
NO FURTHER QUESTIONS BY MR. MURRAY
AANKLAER: Dankie edelagbare voor die staat aangaan sal die staat eers vra vir 'n verdaging vir teetyd.
HOF: Die hof sal vir 'n paar minute verdaag vir die teepouse.
LANDRINO DAVID PAOLO: s.u.o. (through interpreter)
CROSS-EXAMINATION BY PROSECUTOR:
Mr. Paolo do you know Mrs Molly Allison? It was the lady that testified about the happenings on 24 July. --- Not really your worship.
Because she said that she was present when you threatened Mr. Furtak over the telephone? --- I do not know your worship.
She also says that she recognised you voice? --- I do not know.
Is there any reason why a third person would come and say that you indeed threatened Mr. Furtak on this day over the telephone? --- I do not know because on that time me and my wife’s family was not in a good relation.
Mrs Molly Allison indicated that she heard your voice over the telephone you sounded cross and that you threatened Mr. Furtak that you will burn down his house? --- No that is not true.
Why would she come and say a thing like that? --- I do not know I do not know why she said that.
You can think of no reason that she will come and testify under false or falsely testify against you about this incident? --- It can be because that one she was Felix’s girlfriend.
Mr. Paolo you indicated that you did phone Mr. Furtak on this day why did you phone him? --- I did phone Furtak on that day because my wife she was not at home she was working and then Furtak took the police to my wife’s work, my girlfriend’s work. … (intervention)
COURT: No I do not understand can you just repeat that? --- On that day my wife she was working nightshift and I was looking after the baby. My wife is supposed to come the same night she did not come back and the following day the morning my girlfriend’s family they came to me they told me your girlfriend she was arrested because Felix took the police because my girlfriend did not pay the maintenance money for the boy.
And then you were upset with him and you phoned him? --- I did phone him to leave us alone because we do not have any problem between my girlfriend’s family and Felix your worship.
If I understand you, you were cross with him and then you phoned him to tell him to leave you alone? --- I was not cross I only phoned him to tell him to leave us alone because there is no one who gave you the boy to look after do not ask us the maintenance money leave us alone. I was not cross on that day.
But even Mrs Allison testified that you were cross she heard your voice over the phone and the treats that you made this is according to Mr. Furtak as well that you said? --- No I was not cross on that day.,
If you were not cross why phone him to tell him to leave you alone. Usually someone just phones someone else to tell them leave us alone when you are cross with that person? --- I was not cross because I did not know why he took my wife to the police station I only phoned him and he explained it to me over the phone that I took your wife to the police because she did not pay the maintenance money. I said look here bring our son we want to raise our son ourselves.
I am going to go to the date on 29 January 2005. This is on the day this assault took place is that correct? --- That is correct.
You indicated that you went to Miss. Mkona’s place to get your girlfriend and your son to take them home is that correct? --- That is correct.
At what time did you go there? --- It was 10:00 10:30 in the morning.
And did you go into the house? --- Not your worship.
It was a Saturday is that correct? --- That is correct.
And that is the day that there was supposedly to be a funeral is that correct? --- I cannot remember because there was no funeral but he people they were only coming there, there was no funeral there.
How was your relationship with Lindiwe Mkona that is Petronella’s sister? How was the relationship between you and Lindiwe? --- I and my girlfriend’s family were not in a good relationship.
Because Lindiwe said or told the court that, that morning when she woke up inside the house you were sitting as well as Mr. Furtak and Petronella as well? --- That is not true your worship.
She also testified that you were talking for a long time before you and Petronella and the child left? --- I did not enter the house because I was not allowed they did not allow me to enter the house because my girlfriend’s family they did not want me.
She said that you left around 11:00? --- Not your worship.
That is about the same time that you, you said you got there about 10:30 she said you left at about 11:00 so it is more or less the same time? --- I do not know.
You indicated when you came there you saw your daughter in a car and you were cross because she was in Felix’s car and you opened the car door let the daughter out banged the door and then you heard Mr. Furtak coming out is that correct? --- That is correct.
And he screamed at you and then he smacked you is that correct? --- That is correct.
Did he only smack you once? --- That is correct.
With an open hand? --- Open hand.
All right, you said that you testified that you did not run away because you are a man and you wanted to protect your daughter. Is that correct? --- That is correct.
Why did your daughter need protection? --- Because when Felix came to assault me I was holding my baby your worship.
But Felix was not assaulting your daughter you said he assaulted you? --- That is correct he assaulted me.
So she did not need protection it was only you? --- Because my daughter she was next to me.
After he slapped you, you said you picked up a stone is that correct? --- That is correct.
At that stage how far was Felix form you? You can show basically in the court how far. --- 5 metres.
Can you show it to the court? --- Where I am standing and where the prosecutor is.
COURT: 7/8 metres is shown.
PROSECUTOR: Can you explain to the court then sir you said Mr. Furtak smacked you and then you picked up a stone is that how it happened? --- When he smacked me I went back and I went back I and my baby because I was feeling dizzy and I took the stone.
How big was this stone that you picked up? --- It was a piece of a brick.
A piece of a brick an half a brick? --- A quarter.
A quarter all right and what did you want to do with this brick? --- When I tried to go back and I saw Felix coming it is when I took the stone and I threw it to Felix and take it he would run away.
So you wanted to throw the brick at, you threw the brick at Felix? --- That is correct.
To hit him? --- No he skipped the stone and it went through he passenger’s window.
Because he ducked if I understand you correctly this brick went through the window? --- That is correct.
And was it only the one window that was broken because of this brick? --- That is correct.
Okay when he ducked and this brick went through the window what happened then? --- When I started to run because I was very dizzy and I fell.
Because of this slap you felt dizzy and you wanted to run away am I correct? --- That is correct.
And did you run, did you start running away? --- Yes I started running away and I fell and there were three of them they came.
Did you faint or did you fell? --- I fell.
Why did you fall? --- I do not know I touched something then I fell.
All right and where did these three people come from? --- They were next to the car.
Okay so you were still next to the car? --- A little bit far from the car.
All right and if I understand you correctly they then assaulted you is that correct? --- That is correct.
So first it is Felix that came and assaulted you and then these three people after you defended yourself you ran away three other people came and assault you? --- When I fell and Felix came on top of me and we started fighting when I was started fighting Felix and three people came to help Felix and they start fighting with me.
Okay you indicated an iron what did he mention you said something about an iron is that when Felix fight with you, you had an iron? --- No I nothing of an iron.
Okay you fell and Felix came and you struggled and then three other people came? --- That is correct.
But why did they assault you? --- As I say because I and my girlfriend’s family we are not in a good relationship they did not like me. When they saw there was a problem they came to help Felix.
But these three people who were they are they from the family or were they from the community? --- I do not know then it was the first time to see them.
So it was not family? --- I do not know because it was the first time I saw those people.
Why would people that you do not know you do not even know if they are family because it seems they are not family why would they come and assault you? --- Because they were together with Felix.
They what? --- There were together with Felix.
They were with Felix. But when Felix came there the first time he was alone is that correct? --- That is correct.
You indicated you had Handy Andy with you is that correct a bottle of Handy Andy? --- That is correct.
What did you want to do with this Handy Andy? --- I got it because on my way to go to see my girlfriend and I saw the people in the street they were selling Handy Andy and I bought that Handy Andy on my way to go and fetch my wife and to go and clean my toilet.
But why did you not put this to the witnesses when they testified that they found a bottle with you with an unknown content. Why did you not say to them but it was a bottle of Handy Andy? --- When?
It as never put to any of the witnesses who were testifying here that you had a bottle with you. They indicated it was substance that was see through that you could see through? --- I am the one who bought that bottle it was not acid it was Handy Andy because I wanted to clean my toilet and on that day they did not give me questions to ask they did not give me a chance to ask them.
Mr. Furtak testified that he was sitting inside with Lindiwe Mkona when he heard the smashing of windows and Lindiwe Mkona or they heard the sound and Lindiwe Mkona watched and she saw you start smashing the windows of Felix’s car with an iron bar. --- That is not true I did not have the iron bar only I know I break his window when I threw the stone to Felix and the stone went through the passenger’s window.
Yes but that also was never put to one of the witnesses that you took a rock and threw it at Felix and that is what smashed the windows it was never put to him or to any of the witnesses? --- As I am saying the fighting I and Felix everybody was on his side.
But you never spoke about rocks that you picked up and threw him and missed him and threw out the passenger window. Why was that not put to them? --- If them they did not say that because they are looking for a reason.
It seems that you took your attorney also by surprise putting that to the court in your testimony in chief now. It was never put to the witnesses. Why did you not tell him to put it to them that there was a window broken but it was because of a rock that you threw at Felix? --- I thought maybe when I come here by the witness stand box here then I will explain to the court myself.
Further both the witnesses Lindiwe and Felix testified to the effect that you then assaulted when Felix came to the car you attacked him with the iron bar and that you assaulted him with the iron bar on the head? --- I did not assault Felix with an iron bar he is the who come, I hit Felix with a stone and I tried to run away because Felix was behind me following me I did not hit him with an iron bar.
But did you hit Felix with a stone now or did you not? --- That is correct I hit him with a stone but not an iron bar.
So basically if I understand you correctly you threw a stone at him and he ducked and it went through the window and you had another stone with you and you hit him with a stone? --- There was only one stone when I hit him with the stone it went through the window and I ran away.
So with the one stone that you threw at him you hit him and it went through the window? --- The stone it did not go straight to Felix it went straight to the window.
But then you did not hit Felix with the stone you threw it at him but you did not hit him? --- That is correct.
But the witnesses or Lindiwe Mkona even testified that after you hit Mr. Furtak with this iron bar he took it form you and he hit you back with it and he assaulted you. Is that correct? --- I only when I threw the stone it went through the car and I tried to run away and I fell and Felix came on op of me and the other three guys they came and they were fighting with me but I did not use the iron bar.
Did Felix have any injuries on him? --- I really do not know because when they assaulted me I am the one I lost control and I was surprised I was already in hospital.
It was put that you deny that you had any acid with you on that day. It was put by your attorney that you will deny that you had any acid with you is that correct? --- I knew that I will come to say in court that it was not acid.
Mr. Paolo when these people you have now fell down and Mr. Furtak had attacked you again how did you defend yourself then? --- On that time when Furtak come on top of me and the other three people I did not have a chance to defend myself.
You did not defend yourself? --- Not your worship.
Because it was put that the accused said that he was assaulted by the complainant and you defended yourself. So how did you defend yourself? --- If I defended myself on that day then the ambulance was not supposed to come and take me to hospital. I did not defend myself because I have already lost control your worship.
Okay what did they do to you? Did Felix attack you and the other three came with what happened then? --- They assaulted me and they stabbed me also and they tied my hands and my legs also.
Why was that not put to the complainant, you never put it to him that you were stabbed. It was only when Mrs Mkona came and testified, Lindiwe Mkona came that you said that you will come and say that you were stabbed. It was never put in cross-examination to Mr. Furtak? --- Because I knew that I got
a medical report on that day that (indistinct) is my witness.
Mr. Paolo I put it to you on that specific day the 29th you were there at Mrs Mkona’s place and that you left with Petronella Mkona and that you came back and then damaged Mr. Felix’s car by smashing all the windows and not only the passenger window as you indicated and you smashed those windows with an iron bar. --- That is not true because I went there only once to take my baby and my girlfriend and I did not return there when I left there I was already in hospital your worship.
When you threw the brick at Mr. Furtak you could have foreseen that if he ducked that the brick might hit his window is that correct? --- That is correct.
And Mr. Paolo I put it to you that at the stage that you threw this brick on your version Mr. Furtak was not attacking you, you threw the brick at him while he was standing there in front of his car. --- When Furtak came to assault me it just make me (indistinct) and I tried to run away. I saw him coming next to me and that was when I took a chance to take a stone to throw him.
Mr. Paolo I also put it to you that when Mr. Furtak came there on the scene when you smashed his car’ windows you took that iron bar and you assaulted him as Mrs Mkona also testified that she saw you hitting him with this iron bar over the head. --- That is not true.
And that you would have kept on doing so if it was not for him that took this from you this iron bar? --- That is not true your worship.
Why would all these people come and tell lies in court that you broke his windows and assaulted him? --- As I said me and my girlfriend’s family were not in a good relationship. Even my wife before to marry Felix my girlfriend’s family forced my girlfriend to marry Felix.
I put it to you that these people form the community assisted Mr. Furtak not because they were on his side but because you assaulted him and that is why they stopped you. --- Those people assaulted me with Furtak they are not form the community all the people from the community I know them those people it was the first time for me to see them.
You know all the people of the community but you do not know your girlfriend’s family that is strange? --- I know some of them but not all of them.
I put it to you sir that you are lying to the court. --- I am not lying because all my family, my girlfriend’s family I do not know all of them. I know some of them.
Why did you even go there that day if you know that your relationship with the family was not good still you decided to go to this house? --- I wished to go there because they told me if I want to see my girlfriend or my baby I have to go fetch them and take them away but not sit there in the house but I am allowed to go in to take my girlfriend and my baby but not sit there.
Why do you not tell your attorney to put it to him that they would not allow you in the house? You were not in the house because of that and then he could have put it to the witnesses they could have answered on that? --- As I have said I did not tell my lawyer but I knew that I want to (indistinct) in front of the court.
After you, what was your plan after you fetched your daughter out of the car or after you took your daughter out of Mr. Felix’s car what were your movements then or what did you want to do? --- When I took my child to Felix car my plan was to send someone to call my girlfriend and to leave.
Oh so you would not go to the house yourself and fetch your girlfriend you would have just sent someone to call her? --- I did not want to go in on that day because I knew Felix was inside and then if I and Felix see each other you always hear the bad word.
Why did you then bother to take your girl then out of the car, Felix’s car? If you knew she was inside Felix’s car why did you take her out there? --- I took my child inside Felix’s car because I did not like my child to be inside Felix’s car.
What do you mean by you banged his door? --- When I took my child out of Felix’s car and I banged the door that time I think Felix hear the bang and he came and he was cross.
Why did you bang it why did you not just close it? --- He was not with my permission but I was not happy when I met daughter inside Felix’s car. Because the first boy was the problem and the second one was trying to be a problem again but I was not happy on that day when I saw my daughter in Felix’s car.
So you were cross on that day? --- I was not cross but when I saw my baby inside Felix’s car I was upset your worship.
Your worship I have no further questions.
NO FURTHER QUESTIONS BY PROSECUTOR
RE-EXAMINATION BY MR. MURRAY:
Mr. Paolo when the prosecutor asked you when you threw the stone okay or the quarter brick as you indicated did you intend to hit his car or did you intend to hit Mr. Furtak? --- To Furtak.
So you did not intend to break the window in his car? --- Not your worship.
Did that happen by accident or how did it happen? --- It happened by accident.
Now am I correct in saying your home language could you just indicate to the court what is your home language? --- Portuguese and Lingala.
Portuguese and Lingala? --- That is correct.
Thank you your worship nothing further.
NO FURTHER QUESTIONS BY MR. MURRAY
MR. MURRAY: Your worship may I just request a short adjournment there is a document I wish to discuss with my learned friend and then…
COURT: The court will adjourn for a few minutes.
MR. MURRAY: Your worship I thank the court for the indulgence. I have a J88 that I have discussed with my learned friend. As it seems to be the case it does not seem a complete document. I discussed with my learned friend obviously it will be a mater of argument as well but it does not seem to be in any dispute between the state witnesses and the accused that he was assaulted at some stage and obviously taken off to hospital but I am asked to just hand this up just to, the relevant J88 just for the purposes of completion of the record and my instructions are then also to close the case for the defence.
COURT: Mr. Breyl the contents of this document is it admitted?
PROSECUTOR: Your worship the state does not have a problem as to the contents as far as the accused did have certain injuries at a certain stage so to that effect the state
does not have any objection. It is in any case common cause that at one stage the accused was assaulted by the community. So as far as that goes the state does not have any objection your worship.
COURT: Thank the court will then receive by agreement the medical certificate as EXHIBIT A.
MEDICAL CERTIFICATE ACCEPTED AS EXHIBIT A
CASE FOR THE DEFENCE
PROSECUTOR ADDRESSES THE COURT
MR. MURRAY ADDRESSES THE COURT
COURT RESUMES 14:00
The accused Mr. David Paolo is a 34 year old male according to the charge sheet. The accused is charged with three main counts, count 1 is one of attempted murder. The allegation is that on 29 January 2005 at Guguletu he attempted to kill Felix Furtak by hitting him with an iron bar.
Count 2 is one of malicious injury to property with the allegation that also on 29 January 2005 at Guguletu he intentionally damaged Felix Furtak’s motor vehicle. Then main count on count is one of contravention of section 1 (1) A of act 72 of 1982 intimidation with the allegation that the accused threatened Felix Furtak on 24 July 2004 at Woodstock and intended or compelling him to abstain from doing something to wit release Miss Pat Mkona.
Count 3 has an alternative to it being common assault with the allegation that he threatened to kill Felix Furtak on 24 July. The accused has been legally represented by Mr. Murray throughout the trial and pleaded not guilty to all three counts. The state led the evidence of Mr. Furtak and two other witnesses while the accused testified in his own defence.
I am not going to summarise the evidence fully. To understand the proceedings better it is necessary to place on record that the accused was a boyfriend of a Miss Petronella Mkona. They were in a relationship at some stage. Mr. Felix Furtak our complainant then married Miss Petronella Mkona. They got divorced just over a year later. No children were born from that marriage. Miss Petronella Mkona had a child at that stage.
After that stage Miss Petronella Mkona had a relationship with the accused again. It is the accused’s case or part of his case that a child was born out of that relationship. I will refer to that child as the younger child in this judgment. It is common cause that there had been ill feelings between the accused and Mr. Furtak for many months or years.
With that as background Mr. Furtak testified that the accused called him at home on 24 July 2004. At that stage Mr. Furtak was already divorced from Miss Petronella Mkona. Furtak said that the accused told him that he must not mess
around with his girlfriend referring to Petronella or he that is the accused will come to his house with fire and a knife.
Furtak explained that he knew that the accused meant that he will set his property alight or do bodily harm to him. Furtak said that he realised that he would need a witness after hearing this threat and he called Miss Molly Allison to the phone to listen to this conversation.
Miss Allison was working for Mr. Furtak at that stage. When Miss Allison arrived at the phone Furtak put the phone on speaker phone and pretended not to have understood what the accused said and requested him to repeat what he said. He said the accused did repeat what he said. He and Allison then went to police station to report this.
Regarding the other incident he testified that on 31 January 2005 he went to the Mkona’s house. A family member of the Mkona’s has died and it was supposed to be his funeral on that day. When he got to the Mkona’s home he heard that the funeral was cancelled or postponed should be a better term.
He said that he decided to stay and talk with the people present. He said that the accused who was present in the house asked Miss Petronella Mkona to accompany him out. The two of them with the younger child then left. Furtak remained inside the house with Petronella’s sister Miss Lindiwe Mkona one of the state witnesses and other people.
Some time later he heard somebody shouting Felix your car. He was later told or he was under the impression that it was Mr. Boetie Mkona who called him or drew his attention to what was going on outside. When he left the house he saw the accused running away from his car that is now from Furtak’s car.
He said the accused was approximately two metres away from his car. He tried to chase the accused to press charges against him as all the windows of his car were smashed. While chasing the accused he felt a big blow to use the term use din court on his head and Furtak fell to the ground.
He managed to get onto his feet again and get hold of the accused. Regarding this blow to his head he testified that he later saw that the accused had a steel iron bar in his hand. He cannot recall how many times he was hit on the head but he had a five centimetre laceration on his head. Furtak had no weapons on him he testified.
He said the accused also had a bottle of acid or petrol and a knife with him. Furtak testified that his car was a 1969 imported Lancier the only one of its kind in South Africa. Furtak restores vintage vehicle. He says these parts are not readily available in South Africa and at the time when he testified he has only replaced the side windows the front and rear windows were not replaced yet. He estimated the damage to be between R12 000,00 and R13 000,00.
He testifies that the accused was also attacked on the scene. Furtak went to the hospital after the incident and the injury or laceration on his head was stitched. He also had an injury to the nose and it was later found that his rib was broken.
During cross-examination it became clear that the older child was living with Furtak at that stage. It is clear or it was testified that Furtak got custody of Petronella’s older child and that he wanted maintenance for this child from Petronella. It was put to him that he had Petronella incarcerated for not paying maintenance. He said that he knew that there was a warrant for her arrest authorised by a magistrate as she did not appear in court for the maintenance inquiry.
It was put to him that the accused had no reason to contact him to which Furtak replied that if Petronella paid him maintenance the accused would have had less money in his pocket being her boyfriend at that stage. Regarding Miss Molly Allison she testified during cross-examination that she knew the accused for years as she has lived with Petronella’s family and has known the accused as Petronella’s boyfriend.
It was put to Furtak during cross-examination that the accused did not make these threats on the phone. It was added that he might have spoken figuratively and that he did call Furtak on that day because Petronella had been locked up. Furtak denied that.
Regarding the exact words that were uttered by the accused Furtak said that he cannot remember the detail as he did not make notes and did not refresh his memory from those notes. Regarding the vehicle incident Furtak testified that he was at that stage still the custodian of the older child (at the time when he gave evidence in court he did not have custody of this child anymore).
It was put to him that the accused will deny entering the Mkona’s house at all that day. It was put that he only went to the house to collect Petronella and the younger child and that he did call them and that they all then left. It was also put to Furtak that Furtak wanted to take the accused’s child that is the younger child away from him. Furtak denied that.
Regarding the broken windows Furtak testified during cross-examination that he did not see the accused breaking or smashing the car windows. He surmised that it had to be the accused as the accused had an iron bar in his hand and was running away from the car.
According to him the police did confiscate this iron bar. He indicates in court that the iron bar was approximately a half a metre long. He only saw this iron bar when he caught the accused. Asked how he knew there was acid in the container the accused had with him he said that he has heard that.
It became clear during cross-examination that there was a major problem with the police statements that was furnished to the defence. It seems as if somebody has forged Furtak’s signature on this statement and that Furtak has typed out his own statement and signed his own statement which was given to the police which was not the same statement that was provided to the defence from the docket.
Asked how it was possible for the accused to have hit Furtak without Furtak seeing it. Furtak concedes that there is a problem. He says that it is possible that the accused could have turned around and hit him but he is only speculating he did not see that or cannot remember that.
He cannot remember or he does not know when the accused hit him on his chest but his rib was in fact broken. It was put to Furtak that when the accused arrived at the Mkona’s home the younger child was sitting in Furtak’s car and that the accused was unhappy with that fact.
Furtak says that that incident happened two weeks earlier and that the accused is confusing these two incidents. It is put to Furtak that Furtak approached the accused after the accused took the child from the car. Furtak then grabbed the accused by the throat and assaulted him and that the accused then in his own defence had to hit Furtak with a bottle to get away. Furtak denies all this.
The second state witness was Miss Molly Allison. She confirms that she was working for Furtak at that stage and corroborates Furtak regarding this phone all and contents of the phone call. According to her the accused said I will get you I will come to your place with fire or I will kill you.
She confirms that she and Furtak then went to the police. Regarding her relationship with the accused she said she never had problems with the accused. Regarding her relationship with Furtak she said that had a problem with Furtak as Furtak threw her out of his home after some incident. At her time of giving evidence she was not cross with Furtak anymore. Suring cross-examination she conceded being a friend of Furtak at the stage the call was made.
The last state witness was a sister of Miss Petronella Mkona Miss Lindiwe Mkona. Miss Lindiwe Mkona testified that it was indeed supposed to be the funeral of their half brother on that day in January. According to her Furtak the accused her other sisters and other people were all present that morning at their home.
The accused and Petronella left at some stage and approximately an hour later Miss Lindiwe Mkona heard a noise from outside. As she was sitting next to a big window she could see outside and saw that it was the accused with a piece of iron smashing Furtak’s car. According to her the accused also had a plastic bag with a bottle inside with him.
According to her Furtak then went outside as he approached the accused the accused hit Furtak with this iron bar. Furtak then fell down. The accused wanted to hit him again and Furtak then got hold of this iron bar. Furtak then assaulted the accused. She later went with Furtak to the police station.
She corroborates Furtak on the issue that all the windows of the car were smashed. Although Furtak had a head injury he was able to drive himself to the doctor. During cross-examination it became clear that this witness too made more than one police statement. It seems as if she has made a statement to the city police the day of the incident and that another statement was taken on 26 August 2005 by the SAP.
She testified that Furtak did not attend the funeral which took place the next week as he was still in pain. It was put to her as well that the accused only came there to fetch the child which was there and that he then found the child in Furtak’s car. According to her the child was indeed in the room and not outside.
It was put to her that Furtak testified that it was her brother Boetie Mkona who drew attention to the fact that something wrong was happening outside. She says that Furtak was making a mistake as she raised alarm. It was put to her that Furtak testified that the accused was running away from the vehicle when Furtak was chasing him.
She says that after Furtak fell the accused did get a chance to run away and was then chased. It was put to her that the accused would deny having a container with him. The state indicated that they had a J88 form regarding the injuries of Furtak available but that the doctor who compiled this report was not working at that hospital anymore.
Mr. Murray did not concede to the contents of this report and the report was then not handed up. That in a nutshell was the state’s case. The accused then testified. It is clear from his evidence that there were indeed problems between him and Furtak in the past.
According to him Furtak laid a charge against him and Petronella at the social worker regarding the younger child. He testified that he did call Furtak but did not threaten him. He only told Furtak to leave and his family alone referring to Petronella and their child.
Regarding the incident on 29 January he testified that he went to the Mkona’s home this morning. The reason was only to take Petronella and the younger child home to Philippi where he stays. He then indeed took Petronella home. He saw or when he arrived there he saw the daughter in the car of Furtak and he took the child out of the vehicle.
Furtak must have seen that and called the accused and smacked the accused. He testifies that he ten took a piece of stone and threw it at the complainant. it seems as if the stone or a quarter of a brick did not hit Furtak but hit a window of the vehicle.
He and Furtak then started fighting. He denies using an iron bar. He says he was then assaulted by people who came as well and lost his consciousness. He testified that he did have a container with him containing a toilet cleaner.
During cross-examination he says that the Mkonas did not allow him or would not allow him inside their home at that stage as Petronella’s family did not like him. He picked up this stone or part of a brick after he was slapped. He was dizzy at that stage and just took the younger child out of the car.
According to him only the one window of the vehicle was broken. The court received by agreement a medical certificate relating to the injuries of the accused on record as EXHIBIT A. the doctor examining the accused listed several injuries to the accused body and concluded by saying that this was consistent with an assault. That in a nutshell is the evidence before court.
The prosecutor argues for a conviction on all three counts while Mr. Murray argues for an acquittal on all three counts pointing out that there are several issues that were not dealt with properly in this case. Mr. Murray concedes that the accused’s evidence was not satisfactory in all aspects.
He draws the court’s attention to the fact that no medical evidence was led regarding Furtak’s injuries and describes the evidence as cloudy. Regarding the evidence from state side it is indeed true that the evidence is not crystal clear. Mr. Murray is correct in his submission that certain aspects could indeed be described as cloudy.
Even from the relative short summary of the evidence it should be clear that there are indeed aspects which are not perfectly clear. It would indeed be a wonderful day in our criminal courts if witnesses were able to give crystal clear evidence in all aspects in all cases.
But because they very often testify months or even years after events and because police statements are often of a very poor quality that very seldom happens in our courts. Regarding the evidence of Mr. Furtak I also agree with the submission by Mr. Murray that Mr. Furtak was indeed a man of many words.
One has to understand the relationship between him and the accused and it is abundantly clear that there had been ill feelings between the two of them for a very long time. It is clear that Furtak would have taken any opportunity to paint a bleak a picture regarding the accused as possible as he clearly did not like the accused.
I do however think that Furtak was an honest witness. The clearest example of this was his evidence that he actually did not see the attack on him this day. If Furtak was willing to lie under oath because he did not like the accused it would have been very simple and easy for him to have said that he actually saw the accused turning around and hitting him with this iron bar.
Furtak did not do that and concedes that in his own evidence creates a problem if he did not see this attack by somebody who he was chasing. Some of the criticism that was levelled against the state case can easily be explained.
For instance regarding the whole issue on whether it was Boetie Mkona or Miss Lindiwe Mkona who drew the attention of Furtak to the happenings outside. It is clear that more than one person could have shouted or made alarm. One also has to take into account that what happened the day of the car incident was clearly a traumatic incident for everybody involved.
Not only was it supposed to be the funeral of a family member of the Mkonas but was there a fight outside their house of some incident. As to detail of who was where and at what time one should take into account that the attention of for instance Miss Lindiwe Mkona would certainly not have been on who was where at what time but take into account that her mind would probably have been somewhere else as it was supposed to be the funeral of her half brother that day.
It is indeed of significance that Furtak was corroborated in most of the allegations that he made against the accused. Regarding the possible problem regarding the issue whether Furtak was chasing the accused before the assault if compared to Lindiwe’s evidence that the assault took place at the vehicle we have to take into account that even on Lindiwe’s evidence the attack took place very close to the motor vehicle.
According to Furtak also close to the motor vehicle he was talking about approximately two metres or chasing the accused for approximately two metres only. In short I am of the opinion that none of the inconsistencies or problems referred to by Mr. Murray are indeed serious problems in the state case. They could hardly be described as material contradictions.
This is the type of difference in evidence that one would expect when witnesses testify several months or even years after an incident. Especially when there was not a proper police statement taken immediately from which the witness could refresh his or her memory.
Regarding the incidents in chronological order and not in order as put on the charge sheet, the court is of the opinion that Furtak is indeed corroborated materially by Miss Allison regarding the phone call on 24 July 2004. I agree that Miss Allison cannot be described as a completely objective or independent witness as she has worked for Furtak at that stage.
But it was significant to hear that she left the employment of Mr. Furtak under negative circumstances. I find it very hard to believe that after she was put out of Furtak’s house with her child that she would still come and lie under oath for Furtak or on Furtak’s behalf in this matter.
She clearly had no problems with the accused before and there would be no reason for her to come and lie under oath. I have also find that the probabilities are in favour of the state case and against the accused in this regard.
Given the fact that there were in fact problems between the accused and Furtak for some time and taking into account the fact that Furtak claimed maintenance for the elder child that was in his care at that stage I find it very probable that the accused was extremely annoyed with this set of affairs.
I find it more than likely that he would have indeed called Furtak to stop interfering in his household. As the interference went even further than interfering and even possibly involved incarceration of Petronella I find it very likely that some form of intimidation from the accused’s side did in fact take place.
Although there is some doubt as regarding the exact words that were uttered by the accused this specific day I am satisfied beyond reasonable doubt that the idea of the phone call was to threaten Furtak to stop interfering and stop claiming maintenance from Petronella. The threat being that if it was not stopped that the accused would indeed either set his home alight or physically assault him.
I am satisfied that the accused’s denial in this regard is not reasonably possibly true. I am satisfied that this does in fact constitute intimidation as envisaged by section 1 (1) A of act 71 of 82.
Regarding the second incident I am similarly of the opinion that Furtak is corroborated on material aspects by Miss Lindiwe Mkona. I find Miss Mkona’s evidence to be of a good nature. Certain aspects on which she might not have remembered detail should be judged against the fact that she was clearly having stress that day as it was supposed to be the funeral of her half brother that day.
I similarly find the accused’s version of what happened this day to be not reasonably possibly true. I find it extremely strange that very important issues of the accused’s case were never put to Furtak or Miss Mkona. The probabilities again are in favour of the state case and against the accused’s case regarding this incident.
I find it very probable that the accused being very annoyed at that stage that Furtak would still attend a family funeral was present that day. And find it extremely unlikely that somebody else would have smashed Furtak’s windows. On the accused’s version only one window could have been broken by a brick that was thrown by the accused.
He did not attempt to explain how all the windows got smashed. I find that Miss Lindiwe’s explanation of how these windows got smashed was in fact the truth and that it was the accused who did that clearly out of spite and to get back at Furtak for not leaving the Mkona family alone.
By smashing the windows of a motor vehicle and a relatively expensive motor vehicle with an iron bar the accused clearly committed malicious injury to property as envisaged by count 2. Regarding count 1 the court finds that the accused did in fact hit Furtak once with an iron bar on the head.
On the evidence of Miss Lindiwe Mkona the court also finds that the accused attempted to hit Furtak a second time after Furtak fell. Mr. Murray is correct in his submission that we do not have medical evidence regarding the seriousness of the injuries Furtak sustained this day.
I am however of the opinion that any person in his or her right mind if it is an adult person would indeed at least foresee the possibility that a person you hit with an iron bar on the head might sustain such serious injury that that person may die later.
There is no suggestion from the defence side that the accused was not at his sober mind this specific day and the court finds that as an adult person he did in fact foresee the possibility that by hitting Furtak with this iron bar Furtak might sustain such serious injury that Furtak may die as a result thereof.
We are of course not in a position to make a finding regarding the exact nature of the injuries sustained as we do not have medical evidence in this regard. I however want to emphasise that for a charge of attempted murder to be proven one does not necessarily needs medical evidence. Common sense would often dictate the simple example which we often
deal with in our regional courts is where a complainant is shot at and completely missed by an accused in which case attempted murder could easily be found without any injury at all.
The court is satisfied that the state proved its case although with a few problems in it beyond a reasonable doubt and finds that the accused was in fact a lying witness regarding these events.
The accused is accordingly CONVICTED on all three counts as put on count 3, specifically on the main count of intimidation as put.
ACCUSED HAS NO PREVIOUS CONVICTIONS
MR. MURRAY ADDRESSES COURT BEFORE SENTENCE
PROSECUTOR ADDRESSES COURT BEFORE SENTENCE
In assisting the court to arrive at an appropriate sentence the defence placed the following personal circumstances of the accused on record: the accused is currently 36 years old. He is a national from Angola or a citizen from Angola but has been is permanent residence in South Africa after coming here as a refugee since 1993.
He attained the equivalent of our metric n Angola. He still has family in Angola and sends money there on a regular basis when available. As heard during evidence he fathered a child
with Petronella. The accused has been incarcerated on another case and is currently awaiting trial on the other case.
Before hew as incarcerated he earned approximately R500,00 per week net profit from buying and selling clothing. He has no previous convictions. It is conceded by Mr. Murray that he accused was convicted of serious crimes. Mr. Murray however emphasises that the court should take into account the built up to especially count 1 and 2.
He submits that there was in fact some provocation in the manner that Furtak dealt with Petronella and the child. Mr. Murray suggests that one should not accept that the attempted murder and malicious injury to property was a result of the 2004 intimidation. He suggests that that intimidation might well have been an empty threat.
It is common cause that Petronella and the younger child have since passed away. Mr. Murray suggests that in light of this fact there is no real possibility that this type of behaviour could be repeated as the route course of the problem has disappeared.
It is placed on record that the accused is HIV positive. He is not getting adequate medicine at Pollsmoor at the moment. Mr. Murray emphasises that Mr. Furtak clearly recovered from his injuries. He emphasises the fact that the accused has been in custody now for several months awaiting trial.
He concedes that a suspended sentence might not be proper in this case especially in the light of the fact that the accused will probably still be in custody for some time awaiting trial on the other case. Urging the court to take into account the provocative circumstances of the events the defence requests that the court will basically sentence with mercy.
No address is given regarding the fitness of the accused to possess a firearm in terms of section 103 (1) of act 60 of 2000. Mr. Breyl for the state emphasises the seriousness of the offences and indicates that the accused clearly has no remorse. He concedes that the accused as a first offender has favourable personal circumstances but suggests that direct imprisonment is the only suitable sentence.
Mr. Paolo the court did not make the finding that the damage to the vehicle or the assault on Mr. Furtak was a result of the phone call in 2004. I fully agree with your attorney that one should avoid jumping to that conclusion hastily. I like him got the impression that the incident in January 2005 was not planned at all and will I not find as I did not find during judgment that this was as a result of the phone call in 2004.
This is an important finding as it suggests that the threat in 2004 was just that a threat. And it further suggests that what happened in January 2005 could have happened on the spur of the moment without any planning. I further agree with your attorney that the background of this matter is of extreme importance.
This type of jealousy because that is what it boils down to at the end is extremely common in our criminal courts. Very often we deal with extremely serious murder cases in our regional courts which resulted out of love triangles. This is clearly the background of our case too.
You and Mr. Furtak both wanted Petronella and that was the route cause of what happened. Too often unfortunately very serious crime is then committed when people become jealous of other people. Although I will accept that the threat in 2004 was just that a threat one has to emphasise the fact that what you did in January 2005 was completely unacceptable.
I will accept that there was a lot of frustration in your mind at that stage and I will accept that the fact that you were diagnosed to be HIV positive could have played a role too. But to smash somebody else’s car windows without any good reason is completely unacceptable.
That is the type of behaviour we expect from school children not from adults like you. Had it stopped at damaging Furtak’s car I might have said that I could understand what you did. But it went much further you seriously assaulted Furtak as well.
I say seriously knowing that we do not have any medical evidence on record but the probabilities are there that Furtak could have sustained serious injury if he was hit once or more than once with an iron bar on the head. Courts warn often against this type of senseless abuse of power.
Regarding sentence the court takes into account that you are a first offender and that you do indeed have favourable personal circumstances. It seems to be common cause that you will still be in custody for some time to come awaiting trial on the other case.
It is indeed relevant that you are HIV positive. I would not be surprised to learn that the fact that you are currently awaiting trial prisoner in Pollsmoor would be the reason for you not receiving proper medication at Pollsmoor. I would not find it strange if their policy would be to only subscribe this type of medicine to people who are sentenced prisoners and not only awaiting trial prisoners for obvious reasons.
I am of the opinion that direct imprisonment is indeed called for today. I do not have lengthy imprisonment in mind and I think that direct imprisonment would benefit you in another way as well. Being that you will hopefully have easier access to HIV medication if you are sentenced and not only awaiting trial.
For these reasons the court has decided to impose imprisonment in terms of section 276(1) (i) of the Criminal Procedure Act. Usually people sentenced under this section are released after serving only a very short portion of the imprisonment imposed.
But should you still be in custody the benefit would still be there that you are sentenced and is it the intention of this court that you will still be illegible for medication in Pollsmoor while you are awaiting trial on the other case. I have also decided to take the three counts together for purposes of sentence.
I know that this is not done often especially in light of the fact that we are dealing with two incidents and with a statutory offence on the one side and two common assault offences on the other side but am I of the opinion that the built up as explained by your attorney during address is clearly of relevance.
This is one case at the end we dealing with your frustration with Furtak and the manner he dealt with Petronella and the child. Therefore the court will indeed take the three counts together for purposes of sentence.
All these aspects then taken into account and the three counts taken together for purpose of sentence you are in terms of section 276 (1) (i) of act 51 of 1977 sentenced to THREE YEARS’ IMPRISONMENT.
The court makes no finding regarding the provisions of section 103 (1) of act 60 of 2000 which means that you are unfit to possess a firearm. Your attorney will explain to you that you do have the right to apply for leave to appeal against
this conviction and sentence. If you do not have funds for Mr. Murray anymore you may apply for Legal Aid should you want to apply for leave to appeal. But I want to emphasise that you only have 14 days from today to approach the court with such an application should you want to apply for leave to appeal. Do you understand the sentence and what I have explained.
ACCUSED: I do your worship.