CASE
NUMBER:
SH/B75/2005
DATE: 3
APRIL 2006
THE STATE versus: DAVID PAOLO
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.
COURT
ADJOURNS
COURT
RESUMES
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
ADJOURNS
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
WITNESS
EXCUSED
PROSECUTOR: The state still has
three other witnesses here
today and
may I proceed with the next one.
COURT: Sure.
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
ADJOURNS
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.
COURT: Sure.
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.
COURT
ADJOURNS
COURT
RESUMES
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
ADJOURNS
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
WITNES
EXCUSED
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.
STATE 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
ADJOURNS
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.
HOF
VERDAAG
HOF
HERVAT
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.
COURT
ADJOURNS
COURT
RESUMES
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
ADJOURNS
COURT
RESUMES 14:00
JUDGMENT
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
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.
---oOo---