PLEA PROCEEDINGS

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 Apr i l 2006 Wynberg Regional Court A Presiding

Off icer: Mr. J Redel inghuys, Prosecutor: Ms H Ol iv ier, On

Behal f 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 gui l ty of the cr ime of

at tempted murder in that upon or about 29 January 2005 and at

or near Guguletu in the regional d iv is ion of the Western Cape

the accused did unlawful ly and intent ional ly at tempt to k i l l

Fel ix Furtak a mai l person by hi t t ing him wi th an i ron bar on

the head, nose and the chest .

COURT : How do you plead to th is charge?

ACCUSED PLEDS NOT GUILTY TO COUNT 1

PROSECUTOR : Count 2, mal ic ious injury to property you are

being charged that you are gui l ty of the cr ime malic ious in jury

to property in that on or about 29 January 2005 and at or near

Guguletu in the Regional Div is ion of the Western Cape the

accused did unlawful ly and intent ional ly damaged ( indist inct)

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PLEA PROCEEDINGS

motor vehic le the property or in the lawful possession of Fel ix

Furtak wi th the intent to in jure him in his property.

COURT : How do you plead to th is charge?

ACCUSED PLEADS NOT GUILTY TO COUNT 2

PROSECUTOR : Count 3, the State versus David Paola you are

being charged int imidat ion in that you are gui l ty of a cr ime of

contravening the provis ions of sect ion 1 (1) A read wi th sect ion

2 and 3 wi th the int imidat ion act 72 of 1982 int imidat ion in that

on or about 24 July 2004 and at or near Woodstock in the

Regional Div is ion of the western Cape the accused did

unlawful ly and wi th intent to compel or induce any person

namely Fel ix Furtak to do or to abstain f rom doing any act or to

assume or abandon any standpoint to wi t to re lease a certa in

namely Pat Mkona by assaul t ing, in jur ing or causing damage to

such person or threaten to k i l l , assaul t , in jury or cause damage

to such a person. There is also an al ternat ive to th is count

your worship.

COURT : How do you plead to th is charge?

ACCUSED PLEADS NOT GUILTY TO COUNT 3

PROSECUTOR : The al ternat ive to count 3, one of assault you

are being charged that you are gui l ty with the cr ime of assaul t

in that upon or about 24 July 2004 and at or near Woodstock in

the Regional Div is ion of the Western Cape the accused did

unlawful ly and intent ional ly assault Fel ix Furtak by threatening

to k i l l him and to burn his house down.

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COURT : How do you plead to th is a l ternat ive charge?

ACCUSED PLEADS NOT GUILTY TO ALTERNATIVE CHARGE

MR. MURRAY : I conf i rm my appearance on behal f of the

accused, I conf i rm that the accused’s pleas in connect ion with

counts 1, 2, 3 and the al ternat ive count are in accordance wi th

my instruct ions. I t is my instruct ions that the accused elects to

not d isclose the basis of h is defence as wel l as answers

quest ions at this stage as i t pleases the court .

COURT : No admissions are then recorded you may be seated

dur ing the tr ia l . Miss Ol iv ier p lease proceed.

PROSECUTOR : As the court p leases the state wi l l then cal l

Fel ix Furtak.

EVIDENCE ON BEHALF OF THE STATE

FELIX FURTAK : d.s.s.

EXAMINATION BY PROSECUTOR:

Mr. Furtak can you te l l the court do you know the

accused before court? --- Yes I do know the accused.

Can you just p lease tel l me how you know the accused

before court? --- The accused is the boyfr iend 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 te l l the court beginning with the one

ear l iest in t ime what that charge is that you made against the

accused? --- I t was a charge of int imidat ion that happened on

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PROSECUTOR F FURTAK

24 July 2004.

And on that speci f ic day please tel l the court what

happened? --- I was si t t ing in my off ice or in my home I work

from home number 3 Plain Street in Woodstock and at the

same t ime there was also present my f r iend Mrs Mol ly Al l ison

who was also in the house. I t was somet ime in the day t ime

maybe around luncht ime.

Yes. --- Then I received a telephone cal l and I could hear

that the accused was cal l ing me or talk ing to me.

How did you at that stage know that i t was the accused

ta lk ing? --- 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 to ld me that I must not mess around or re lease or let

go of h is g i r l f r iend which he was obviously under the

understanding is h is property or whatever you want to cal l i t

and otherwise i f I do not actual ly fu l f i l h is demands he would

come to my house and I remember c lear ly that he said that he

wi l l come wi th a kni fe and f i re or f i re and a knife.

When he said that to you what did you understand was he

going to do to you? --- I know from the f i re obviously meaning

sett ing my property al ight which is quite obvious and to come

wi th somebody wi th a kni fe is obviously wi th the intent of doing

bodi ly harm to them which I found qui te obvious.

And I just want to c lear one th ing up th is gi r l f r iend of h is

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PROSECUTOR F FURTAK

can you please te l l the court what her name is? --- I t is Mrs

Petronel la Zanel la Mkona.

And when he to ld you that what did you do then what

happened thereaf ter? --- I real ised obviously that I would only

have a case i f I have a wi tness of int imidat ion. Lucki ly I had a

te lephone with a speaker faci l i ty and that my fr iend Mrs Al l ison

was nearby. Then I went to cal l Mrs Al l ison and switched on

the loudspeaker faci l i ty of the te lephone and I asked the

accused i f he could please be so kind and repeat what he had

said. Now at the t ime the loudspeaker was on and Mrs Al l ison

was present and the accused repeated I wi l l come to your

house with f i re and a kni fe.

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 recal l actual ly whether the accused hung the

phone up f i rst or I hung the phone up f i rst but the conversat ion

was ended and both mysel f and Mrs Al l ison then subsequent ly

went to Woodstock Pol ice Stat ion to report the case of

int imidat ion.

At that stage did you feel threatened by the accused’s

words? --- Yes.

You say that you have known the accused for qui te some

t ime now do you have regular contact wi th the accused? --- I

have not necessary regular personal contact but my wi fe

obviously gave me most of the accounts of the accused’s l i fe

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PROSECUTOR F FURTAK

that I know.

Did you ever discuss this incident wi th the accused af ter

that date? --- No.

Tel l me the second charge that you made against the

accused can you please te l l the court about that? --- This was

now on 31 January 2005. At that day my ex-wi fe then ex-wife’s

brother had died in a tragic car accident and there was a

funeral on that Saturday which was 31 January. Mysel f and my

wi fe ’s f i rst son we went together with my motor vehic le f rom

our home in Woodstock to NY89 in Guguletu. NY89 is the

residence of the Mkona family where my wife or ig inal ly comes

from. When, we arr ived there ear ly because for a funeral you

are supposed to be ear ly so I th ink i t was qui te ear ly l ike 08:00

in the morning. At the t ime everybody from the fami ly which

includes my ex-wi fe and the sisters, brothers most of the fami ly

were al l there and present but we were told that the funeral

was cancel led for var ious reasons. Because I had already

taken the day of f I was under no pressure to leave the place

and I decided to spend some more social t ime with the fami ly

a lso that the chi ld my foster chi ld can actual ly see his fami ly

and play with the fr iends. Then I would say maybe about 09:00

or 09:30 the accused entered the house. Because obviously

through the problems wi th the marr iage and the boyfr iend and

whatever and the fami ly involvement the si tuat ion grew very,

very chi l ly and nobody said anything because i t was already at

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PROSECUTOR F FURTAK

a stage the t ime over the f ight ing over the marr iage was over I

mean we were already divorced. So Mr. Paola entered the

house and demanded my ex-wi fe to fo l low him. While he

wai t ing outside my ex-wi fe was try ing to pack her c lothes she

was extremely nervous and took a long t ime to pack her bag of

c lothes because she was obviously af raid of what was going to

happen. Then the accused, my ex-wi fe and her second chi ld

disappeared to their shack in Phi l ippi where they had their

residence. Then I remained in the house whi le Tando because

my chi ld was playing outside, I remained wi th the sister in th is

speci f ic case Lindiwe Mkona remained dr inking cof fee and

ta lk ing about the weather and avoiding any cr i t ical subject so

we were just enjoying ourselves casual ly wi th coffee. So the

morning passed and I can be corrected now at maybe about

12:00 I heard a shout ing from outside where somebody said:

“Fel ix your car” . From the way i t was said I could al ready see

that there could be a problem because I had threats before and

I knew that I was potent ial ly at r isk. 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,

h im running away f rom my car. I a lso real ised that moment that

the person who was warning me was Boet ie Mkona another

member of the family. I saw that a l l windows and that means

al l the glass of the car was smashed as wel l as var ious chrome

beadings and accessor ies. Instant ly I t r ied to chase the

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PROSECUTOR F FURTAK

accused in order to safe keep him in order to be able to press

charges against h im. Instant ly I had a very big blow on my

head which at the t ime I fe l l to the ground but I managed to

somehow get back on my feet again and cont inued pursuing

the accused and I had then successful ly wi th in seconds,

everything happened wi th in seconds, I managed to grab the

neck of the accused and then I brought h im on the ground. I

immediately ordered the family members who were immediately

present and I instructed the older s ister of the fami ly Mrs

Charmaine Mkona to please cal l the pol ice.

You said that you fe l t a big blow to your head. Do you

know were you hi t by the f ist or . .? --- No I was, later on I saw

that the accused had a very big steel i ron bar maybe

approximately 50 cent imetres long in his hand together wi th

other weapons which I saw on his body which included a bot t le

of acid which the accused I know previously used, a bott le of

petrol and a kni fe and I have seen al l these i tems on the

accused.

Do you recal l how many t imes you were hi t by the

accused? --- I do not recal l how many t imes only later

examinat ion by the doctor found a big lacerat ion on the head

about 5 cent imetres long, i t found the nose not broken but the

nose injured and only three days or four days af ter the incident

af ter I got considerable pain in breathing and got very s ick,

subsequent examinat ion found a broken r ib on th is s ide.

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PROSECUTOR F FURTAK

Can you please te l l the court which side of your body

which r ib was broken? --- Here.

COURT : The lef t s ide is shown.

PROSECUTOR : At the stage you went af ter the accused did

you have any weapons wi th you? --- I had no weapons at al l

nor did I used my f ists al l I intended is to prevent the accused

from running away.

You also ment ioned that you saw that your windows of

your car were broken at th is stage. Can you please te l l the

court what k ind of a car is that? --- The car is a Lancier

( indist inct) GTE that is a v intage I tal ian vehic le 1969 and

which is the only one in, of that model in South Afr ica.

Can you please te l l the court what do you do for a l iv ing?

--- I run the Lancier Services CC I do services and restorat ion

and parts for v intage Lancier motor vehic le and th is business

started out of a hobby a passion of mine because I am a

col lector of these vintage motor vehic les.

So would you be able, posit ion to te l l the court what the

damage to this vehic le was? --- The damage to the vehic le is

unfortunately ( indist inct) because spare parts are not regular ly

avai lable on the open market however I am special ised in

deal ing wi th these parts I have so far found al l the side

windows which are back in the vehic le I am st i l l wai t ing for

windscreen and the rear window which i f I am lucky I wi l l f ind

somewhere in the world so I wi l l eventual ly hopeful ly be able to

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PROSECUTOR F FURTAK

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 i t f rom my own business. I gave, you are in

possession of a document where I have roughly est imated the

repair costs of the vehic le to be around R12 000,00 or

R13 000,00 which is rather hypothet ical but i t is just to give

some indicat ion.

You ment ioned that Boet ie Mkona was the one who

in i t ia l ly cal led you? --- Yes.

Did you see him outside? --- I saw him outside yes. He

was in the house next door.

And are you st i l l in contact with the Mkona fami ly? --- No

current ly because of var ious other problems I am not in touch

wi th the Mkona fami ly anymore.

Your worship wi th the court ’s permission I would just l ike

to ref resh the wi tness’s memory regarding the dates of the

incidents. Mr. Furtak I am going to hand you a document which

was signed by yoursel f as wel l as a commissioner of oaths i f

you could please just ver i fy that that is your s ignature? --- I t is

in fact the document that I have drafted mysel f and had i t

cert i f ied that is correct yes.

So you cert i fy that, that is exact ly what you to ld that

person on that day? --- Sorry I said the 31 s t the date was the

29 t h I apologise i t actual ly happened on the 29 t h .

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PROSECUTOR F FURTAK

If you can just give me the ful l date on which the incident

occurred? --- 29 January 2005.

After th is incident occurred you ment ioned that you

brought the accused under control . What happened thereafter?

--- What happened thereafter obviously a big commot ion

occurred because I mean how can I put i t in a, ( indist inct)

malunga and quera quera a f ight about a woman i t is rather a

novel ty so there were obviously hundreds of people around and

none of them part icular ly l iked the accused so people started

stabbing not stabbing but k icking and otherwise at tacking the

accused because they f inal ly found they ( indist inct) some

just ice of the people would be done. I actual ly t r ied to protect

the accused f rom further at tack by other people. He was also

attacked by other members of the fami ly who also had grudges

against him but I did actual ly t r ied to protect h im to keep his

body intact s ir .

Did you at any stage seek medical at tent ion? --- Yes

obviously there was, emergency medical people were there

who attend to me who put the bandage around and I was

obviously to ld to go to the government hospi ta l in the township

which I did not f ind a good proposi t ion so I eager ly took myself

wi th the broken motor vehic le to a pr ivate hospi ta l in

Keni lworth where I had my in jur ies attended to. I immediately

had to go back to Guguletu pol ice to report the case.

What k ind of medical at tent ion did you receive at the

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PROSECUTOR F FURTAK

private hospital? --- At that stage the lacerat ion on the head

which I was about 5/6 cent imetres long which I considered

qui te severe which was on the head who was st i tched up and

the nose was st i tched up because the broken r ib was only

found on a subsequent examinat ion three or four days later.

And af ter th is incident occurred have you had any

personal contact wi th the accused where you contacted him

or…? --- I had the last contact wi th the accused I had about

two weeks ago when he actual ly cal led 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 r ight or

permission to assaul t you or to hi t you? --- Most certa inly not.

Thank you your worship I have no further quest ions.

NO FURTHER QUESTIONS BY PROSECUTOR

CROSS-EXAMINATION BY MR. MURRAY :

Mr. Furtak perhaps you would conf irm that on 9 February

2006 you were in at tendance as a witness at court is that

correct? --- On the 9 t h …?

Of February 2006? --- Yes that was the last appearance.

The last appearance that th is court sat am I correct? ---

Yes.

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MR MURRAY F FURTAK

Mr. Furtak would you l ike to relate to relate to the court

an incident that happened on the steps of these courts on that

part icular day when you lef t the precinct of this court? --- May I

k indly ask the court and the prosecutor whether th is incident in

fact relates to our case because there was in fact an incident

which is an incident a l l by i tsel f and unless I am told so do not

know whether i t actual ly re late to our case present ly.

Mr. Furtak I put i t to you that you made certain threats on

the last appearance in court . I am giv ing you now an

opportunity to re lay the events or put your version before the

court a l ternat ively the defence wi l l then seek to cal l a witness

to give their descr ipt ion. --- May I ask the court do I have to

answer to th is?

COURT : The relevance of th is Mr. Murray?

MR. MURRAY : Your worship the relevance of i t unfortunately i t

is an aspect that occurred I am not in a posit ion to obviously

re late to myself . I can and I do intend cal l ing wi tnesses. I t wi l l

ref lect on the state of mind of the accused as i t p leases 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 quest ion I wi l l then wi thdraw

that quest ion at th is stage and perhaps develop i t at certa in at

a later stage as i t p leases the court .

COURT : Sure you are welcome.

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MR MURRAY F FURTAK

MR. MURRAY : Now Mr. Furtak just to get your relat ionship

sorted out here you say that the accused you knew him

because he was the boyfr iend of your ex-wi fe? --- That is

correct .

Your gi r l f r iend is Petronel la Mkona is that correct? --- No

she was never my gir l f r iend I was marr ied to her.

Was your wife? --- She was my wi fe I was marr ied to her.

Could you te l l the court when you divorced your wi fe? ---

We got marr ied in May 2002 and we got d ivorced one and a

hal f a year later that must have been September 2004 then.

That was one month before my wi fe ’s second chi ld was born.

In September 2004, you divorced your wife in September

2004? --- Yes but I stand under correct ion but i t can be easi ly

ver i f ied.

Do you have the documentat ion? --- I do have the

documentat ion.

Now were there any chi ldren born of the marr iage? ---

No.

You mentioned the f i rst incident i f I may cal l i t that is the

one relat ing to al leged int imidat ion. You ment ioned the second

where you were al legedly assaulted. You ment ioned that you

were in the company of your ex-wi fe ’s chi ld is that correct? ---

On the second incidence yes that is r ight not in the company

but he was playing outside but he was in the vic ini ty when the

incident happened.

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MR MURRAY F FURTAK

If I understood your evidence in chief that was when the

prosecutor was leading you, you stated that you approached

th is house together with the chi ld? --- That is correct.

Did you take the chi ld to the house? --- Yes.

Now am I correct in saying that th is chi ld was l iv ing with

you at that stage? --- That is correct.

This is your ex-wi fe ’s chi ld? --- That is correct.

And am I correct in saying that th is is not your biological

chi ld? --- That is correct i f I may also could ask what the chi ld

has to do our case here.

Sir I am busy asking the quest ions I am just t ry ing to set

up the environment so that the court can understand the

background to th is. So i f you wi l l a l low me to cont inue asking

the quest ions. Now how did i t come to be that you were in the

company of th is chi ld? --- Because the chi ld was l iv ing with me

at the t ime and i t was his uncle’s funeral so i t was only natural

that mysel f and the chi ld wi l l at tend the funeral together.

And where was the father of th is chi ld? --- The farther is

st i l l to be found we are st i l l searching for the father of the

chi ld.

Now i f I understand i t correct ly when in fact did Pat leave

you or when did you go your separate ways? --- She lef t the

house roughly in September 2002.

2002? --- Three months after the marr iage.

2000 and? --- 2002 i t must have been September 2002.

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MR MURRAY F FURTAK

She lef t you in September 2002? --- I t is four years ago.

And are you certain of the date because I …? --- Look al l

the dates can be ver i f ied i f I should say something wrong there

are documents relat ing to th is instance.

When were you in fact d ivorced? --- To my knowledge we

got marr ied on 24 May 2002 which was my bir thday and she

lef t three to four months after we got marr ied she lef t the

house.

I understand you are a German nat ional is that correct?

--- Yes that is correct .

Are you understanding my quest ions i f I pose them to you

in Engl ish? --- 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 ment ioned one

and a hal f year and you ment ioned 2004? --- Sorry.

That is why I am asking you I needed to…? --- Sorry s i r

my sincere apologies now I am actual ly gett ing the dates mixed

up and apparent ly I am not a l lowed to use any paperwork to

conf irm this here. But a l l the dates can easi ly be ver i f ied i f that

is of any importance i t can be ver i f ied wi th the documentat ion.

You wi l l understand the importance, the evidence that

you give before court is evidence that you are certa in of not

speculat ion i f you cannot remember then you must te l l the

court that you cannot remember th ings. --- As far as I recal l I

was marr ied on 24 May 2002 which was four years ago.

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MR MURRAY F FURTAK

Now when were you aware of the fact and you conf irmed

this is court that subsequent ly to your divorce from your wife

that the accused before court then came into a relat ionship

wi th her? --- He was in a relat ionship long before, the

relat ionship to my ex-wi fe preceding our marr iage. According

to a wri t ten statement of my ex-wife she marr ied us both

simul taneously in the year 2000.

Am I correct in saying that th is, one would often see you

as the person who was marr ied to her that th is was

interference in your marr iage, the fact that there is a

relat ionship between your ex-wi fe and him? --- I d id not know i t

at the t ime, at the t ime when I was marr ied to my wife I was

obviously under the impression she does not have relat ionship

wi th anybody. I th ink I was under a reasonable unfair

impression that th is is the case.

When did you f i rst become aware of the fact that there

was a relat ionship? --- My wi fe marr ied me pr imari ly according

to her own words to seek protect ion f rom the accused. So

obviously… ( intervent ion)

My quest ion to you si r was when did you become aware

of the fact that there was a relat ionship between the accused

and your ex-wife? --- The f i rst day I met my ex-wi fe she told

me about and the problems that she had in her re lat ionship

wi th the accused and that at the t ime when she start ing to see

me or start ing to date me.

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MR MURRAY F FURTAK

Sir, once again as wi th the dates I must put i t 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 t ime of

your marr iage you were not aware of the relat ionship? --- No I

was not aware… ( intervent ion)

Sir let me f in ish please? --- What I said I was not aware

that the relat ionship cont inued I was under the impression

obviously that my wi fe marr ied me that she has f in ished her

re lat ionship with the accused. I was not aware that i t cont inued

through the marr iage or in fact i t actual ly cont inued through

the marr iage.

I f I can pose that quest ion to you once again and please

do not interrupt me when I asked you the quest ion when were

you aware that the relat ionship had cont inued, a very s imple

quest ion. --- I real ised that I would say maybe in November

2000.

November? --- 2002 November/December.

How did that happen? --- Because the fami ly who t r ied to

reuni te us the fami ly made var ious efforts to reuni te the

marr iage and obviously i t was brought to me that she had

cont inued to see the accused, not cont inued started again to

see the accused.

Am I correct in saying that as in any normal man that is

an upsett ing th ing i t is something that is a break in your

marr iage? --- Yes i t was certainly upsett ing. But on the other

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MR MURRAY F FURTAK

hand my wi fe was legal ly ent i t led to do what she was doing

and so there was no cr iminal case, as I understand we are in a

cr iminal court and we are try ing to f ind cr iminal events. This

was a civ i l matter which was very upsett ing to me admit tedly

but she was quite with in her r ights to do what she was doing,

legal ly not moral ly maybe but certain ly legal ly.

Yes I am sure si r that the court would be in a bet ter

posi t ion to make legal judgments as far as what has happened.

Now the chi ld the elder chi ld was fathered by another

bio logical father am I correct? --- That is correct.

Could you explain to the court how you came to be

having the custody of this part icular chi ld? --- How I was given

the custody… ( intervent ion)

PROSECUTOR : Your worship I have been l istening to the

quest ions and t ry ing to f ind the relevance but the state wi l l be

object ing I do not see the relevance of the chi ld ’s b io logical

father and when they got d ivorced and when they got marr ied

as to how this is re levant to the case before the court .

COURT : Mr. Murray.

MR. MURRAY : As i t p leases the court i f I can just g ive a

background to the relevance again your worship I th ink i t

incumbent on the defence to paint a picture of exact ly the

si tuat ion in which the relat ionship between the part ies was at

the t ime and the t ime of the al leged offences.

COURT : I wi l l a l low the background information.

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MR. MURRAY : The quest ion is how did you come to be in

having the custody of the elder chi ld? --- Because the custody

was given to me by Cape Town chi ldren’s court .

Do you have conf irmat ion of that? --- Yes I have got al l

the documentat ion which I d id not br ing with because I d id not

consider i t re levant. The matter wi l l be heard in the Cape Town

fami ly court chi ldren’s court next week and al l these issues are

going to be discussed in the fami ly court next week which I

th ink is the r ight forum for these quest ions.

Now my instruct ions f rom the accused wi l l be that you on

a cont inual basis pressed the accused and the mother of the

chi ld for maintenance payments? --- I t is in fact t rue that I

have la id a maintenance cla im against the mother not so much

for the money but for educat ion purposes because I have read

once in a magazine that the moment parents who have

deserted the chi ldren are made to pay maintenance wi l l a lso

put more attent ion and love to the chi ldren and I was using a

maintenance claim simply as a vehic le to get the mother ’s

at tent ion to the chi ld because the mother had deserted the

chi ld at the t ime.

Sir am I correct in saying and I put i t to you that you are

prepared to make use of the courts as a vehic le to obtain

certa in ends? --- No I was quite legal ly wi th in my r ights to

apply for maintenance. I was quite legal ly wi th in in my r ights

that is not using the court as a vehic le. Both my wife and

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myself have an income of a s imi lar s ize so I was qui te within

my r ights to actual ly ask the mother to a contr ibut ion for her

son. The court d id fo l low that and there was a consent ru l ing

that the mother would have to make some contr ibut ion towards

the maintenance of her chi ld which she also agreed to i t was a

consent maintenance agreement that we both signed.

Yes I put i t to you si r in fact i t just ref lected in your

statements that you are a person who is prepared to make use

of the judic ia l system the court system to obtain your own

ends. --- No not my ends of just ice we are here for just ice not

to obtain from this person.

Now there have been two incidents that you have related

here i f I understand you correct ly the one was on 24 July

2004? --- I t was 2004.

I wi l l make sure of that date because i t seems as though

you are a bi t confused about dates ear l ier on? --- No, that was

2004 that is correct ja.

Now at th is stage you were divorced from your ex-wife?

--- That is correct.

That is Petronel la 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

l iv ing wi th her? --- Yes.

Sir i f I understand you correct ly you had contact with Ms

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Mkona’s fami ly? --- That is correct.

And were you aware of the fact that the accused was

l iv ing wi th Ms Mkona at that stage? --- That is correct .

And you wi l l conf irm that a chi ld was born of th is

re lat ionship between the accused and Ms Mkona? --- No I have

actual ly evidence to the contrary not conf i rming evidence but

a l l I can say is that I doubt that the accused has a chi ld wi th

my ex-wife a DNA test can establ ish i f the need would ar ise.

With al l due respect s i r you are by profession a motor

mechanic am I correct? --- No I am actual ly an electronic

engineer.

But your pract ice is basical ly motor mechanics on

Lanciers? --- Lanciers service of vehic les and we do internet

services also.

In fact you are a motor mechanic? --- I am actual ly not a

motor mechanic no.

You are not a doctor to be in a posit ion to establ ish the

paterni ty of the chi ld which my cl ient says is h is am I correct?

--- No I am not in a posit ion at al l I am not a doctor not at a l l ,

th is is too far a DNA test , i t is not my expert ise.

Well I am put t ing i t to you that the chi ld was born out of

that re lat ionship between the accused and your ex-wi fe? ---

You can put i t that way unless I have evidence of that I would

not conf i rm that. But in the statement from my wi fe is to the

contrary so.

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I put i t to you si r that in terms of our law is i t stands unt i l

the contrary is proved that is in fact how i t stands. --- You can

say that I say nothing to that .

Now that was the si tuat ion in 24 July 2004. you then said

that the accused phoned you? --- 24 July 2004.

Had you had any contact wi th the accused t i l l that date?

--- Personal ly no I have seen him around sometimes in the

hose of the fami ly but obviously through the si tuat ion I d id not

seek to make any contact with him I had very l i t t le reason to do

so.

Because my instruct ions are that you were also pressing

the accused for maintenance money at that stage, you pressed

them as a pair to make contr ibut ions towards the maintenance

of the chi ld? --- That is r id iculous that shows that the two of

them have not got the legal insight to read the legal documents

correct ly.

Sir , i f 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 i f the mother would

have paid a contr ibut ion to her chi ld i t would have mean less in

his pocket so he had every reason obviously because my ex-

wi fe was forced to submit her income whol ly and ent i re ly to

him. So obviously he would have had a loss of income should

she have to provide for the chi ld.

You are putt ing informat ion before the court here and you

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are not g iv ing an indicat ion as to what your source of th is

information is. - - - That is hersel f that is the statements that

she made hersel f to me and fami ly members l ike…

( intervent ion)

But not statements made direct ly to you by the accused?

--- No.

Am I correct? --- That is correct.

So i t is not something in your knowledge you are get t ing

i t second hand am I correct? --- That is information that I have

got form my ex-wi fe and the fami ly.

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 i t was obviously upset t ing for the

two of them because I would obviously asking attent ion for the

chi ld.

Let ’s just go back to this date 24 July 2004. your phone

r ings I assume i t was a cel l phone? --- No i t was not a cel l

phone.

What type of phone was i t? --- I t was a landl ine i t in fact

a German ISTN telephone.

Can you just explain to the court what happened you

establ ished that i t was the accused on the other s ide of the

l ine? --- That is correct.

What did he say to you? --- He said Fel ix the accused is

normal ly very short wi th words and he said that I should stop

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messing around in his af fa irs and proceedings where I must

say I do not remember the correct words of that the only words

that I can correct ly af f i rm that he has said is that he wi l l come

to my house with a kni fe and f i re. These words transpired i t is

such a long t ime ago they are st i l l in my brain and that I can

exact ly repeat here.

I f I can ask you si r you picked up the phone am I correct?

--- That is correct yes.

And then what did he say to you? --- As I say I wi l l not

conf irm on the enter ing stage just summaris ing that I must stop

intermingl ing with his af fa irs meaning my ex-wife ’s af fa i rs

which were their jo int af fa i rs. He said otherwise he would come

wi th f i re and a kni fe to my house.

Did he int roduce himself to you did he say th is is David

Paola speaking or what did he say? --- He said I am Landrino

that is the name he is normal ly referred to is Landr ino.

Once again s i r I am asking you because now that I have

put the words in your mouth now you remember. I asked you

how did he in i t iate the conversat ion you could not te l l me that

you could only remember that he was br inging f i re and a knife

to your house? --- Look obviously you are tel l ing me now

because I did not remember he said his name that I might not

have recognised Paola has got a very dist inct ive voice and i t is

v ir tual ly impossible once you ever hear his voice to forget i t

again. So i t would have been somebody else i t is actual ly a

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ridiculous proposi t ion.

When you took the cal l i f I understand your evidence you

were alone am I correct? --- I was alone in the room my fr iend

Mrs Al l ison was in the room next door.

Mrs Al l ison you say she is a fr iend? --- She is a f r iend.

Not an employee? --- No.

Am I correct in saying that Mrs Al l ison was the lady that

you were si t t ing next to th is morning outside on the bench

whi le we were wai t ing for this matter to be cal led 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 gi r l f r iend

and he would come with f i re and a kni fe. - -- That is the

statement that I gave at the t ime yes.

Is that correct s i r? --- That is correct .

As i t is stated there? --- That was the statement that I

made.

And he said that you must mess around with his gi r l f r iend

you must re lease his gir l f r iend. What did you understand by

that? --- Obviously I d id probably relate i t to the maintenance

cla im because obviously I mean he wanted obviously to ask to

stop al l of our relat ionship because he was obviously st i l l

connected to one chi ld also which also was the problem and he

asked me to stop al l re lat ionship wi th my ex-wi fe in whatever

form that may be.

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Why would there be a relat ionship between you and him

and the chi ld? --- The chi ld forms a relat ionship between

myself and my ex-wi fe because she is the bio logical mother

and I was the foster parent . That st i l l gave us some connect ion

which obviously was something that he was not so happy with

s ir .

Now when you heard th is, the al leged threats what d id

you do then? --- I cal led my fr iend Mrs Mol ly Al l ison to come

from the room next door.

Now he is obviously aware of what you are doing on your

s ide he phones you these threats are made did you

immediately cal l Mrs Al l ison what happened? --- Ja I cal led

immediately Mrs Al l ison.

To come to you? --- To come to me the room next door is

only f ive metres shod she only had to walk a distance of f ive

metres which probably only takes two or three seconds so she

was vir tual ly there immediately.

When she came to you what did she say to you? --- She

did not say nothing to me I s imply pressed the speaker button

the te lephone has got a speaker but ton where then the

te lephone conversat ion is d isplayed by loudspeaker so

everybody can hear i t . Then I asked the accused and I

pretended that I d id not understand I said can you please

repeat and then he actual ly repeat i t exact ly the same…

( intervent ion)

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Sorry can we just take i t step for step si r you said when

you cal led her into the room you said, d id you tel l h im that you

could not understand? --- I d id tel l him please repeat what he

said to me.

Where was Mrs Al l ison 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 exact ly the same

he said I wi l l come to your house wi th a knife and f i re.

Now what did Mrs Al l ison say to you when she heard

that? --- Nothing Mrs Al l ison was not there to say she was

there to l is ten because Mrs Al l ison knows the accused also for

many years and would have been able to immediately ident i fy

h is voice.

That is the voice through your speaker phone? --- That is

correct .

How did Mrs Al l ison come to know the accused? ---

Because Mrs Al l ison used to l ive together wi th my ex-wi fe ’s

fami ly in the premises in 140 NY29 where the accused

obviously went in and out of the house whi le she was l iv ing

there so she knew the accused for a long t ime.

What did she say to you did she say nothing you said she

was just there to l is ten? --- I cal led her and said Mol ly come

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over here and I put her next to the telephone and I let her

l is ten there was no other conversat ion needed.

What was her react ion? --- Her react ion she was

obviously she could see that he was threatening me and as she

is my fr iend she was obviously not impressed.

Yes I wan to know what her react ion 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 te lephone down we obviously did

discuss the incident.

My quest ion to you si r is can you remember did she say

anything to you what was her react ion? --- I cannot remember

what her immediate words were.

You cannot remember. --- Knowing Mol ly she would have

said “Oh my God” that is f rom Mol ly ’s character the most l ikely

th ing she would have said.

Yes si r we are not here to ask ( indist inct) to re late what

you saw. --- Sorry.

Your worship I must apologise could I ask that he matter

stand down for a few seconds. Unfortunately I am gett ing very

important informat ion here. The court wi l l understand I have

problems in communicat ing 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 : i t wi l l not be long?

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MR. MURRAY : I doubt i f i t wi l l be long your worship.

Unfortunately i t was the evidence or matters that I was not

aware of.

COURT : Sure the court wi l l then adjourn for a few minutes.

COURT ADJOURNS

COURT RESUMES

FELIX FAKTUR : s.u.o.

CROSS-EXAMINATION BY MR. MURRAY : (cont inued)

Thank you your worship I appreciate the opportunity to

consul t . Mr. Furtak just to get back on t rack again you said

that the accused phoned you basical ly ment ioned that he was

coming wi th a kni fe and he was coming with f i re to burn down

your house am I correct? --- No, I said the accused said he

would come wi th f i re and a knife.

Yes. --- He did not speci fy what he intended to do wi th i t

but i t is unl ikely hew as going to l ight my Christmas candles.

Yes you speculated as to what he meant by that am I

correct? --- Yes because he could have l ight my Christmas

candles even though i t was not Chr istmas.

Am I correct in saying that i f we assume and my

instruct ions are that in fact he did not say anything of that

nature to you, that he said he was coming wi th f i re he could

have been speaking f igurat ively i f you understand what that

means? --- I do understand my knowledge of Engl ish is good

enough yes.

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Because my instruct ions from the accused are that he in

fact phoned you on that part icular day because his gi r l f r iend

your ex-wife let ’s assume he had a relat ionship with her that

moment subsequent to your divorce, had been locked up as a

resul t of not having been paid, you having been paid

maintenance towards the chi ld? --- That is not correct.

My instruct ions form the accused are that you saw to i t

that the mother would be incarcerated should v ia the courts

because she had not met her maintenance obl igat ions? ---

Factual ly wrong.

Why would the accused phone you at this junct ion for any

other reason? --- Because obviously he did not want to have

any money diverted from him to the chi ld i t was obviously not

in his interest.

Are you aware of where the chi ld is at the present

moment? --- While the matter is pending wi th the fami ly court…

( intervent ion)

Sir my quest ion to you, are you aware of where the chi ld

is at the present moment? --- I have certain ideas but I do not

have evidence.

Can you te l l the court where he is? --- Yes may I ask i f i t

is of re levance?

COURT : Mr. Murray?

MR. MURRAY : Your worship once again i t is of relevance i f I

can establ ish who had custody of the chi ld at the present t ime.

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--- At th is present t ime the custody is under, i t is debated. The

custody has been temporary removed from me and there is an

appeal pending and the matter wi l l be sorted out by the fami ly

court in Cape Town in due course.

You ment ioned th is aspect of the coming wi th the f i re and

a knife. Can you remember exact ly what was said is that a l l he

said was there any other thing was ment ion made of your

former wife or the chi ld or anything relat ing to the

maintenance? --- I do not recal l this.

You do not recal l i t? --- Because I obviously only

remember these two words which were in my opinion relevant.

Everything else about the discussion I do not remember

anymore. I t has not got anything to do with my bad memory but

i t has been a long t ime ago and a lot of th ings had been said

and done I only remember the two incidents that are crucial to

our case here. The maintenance matter is not a cr iminal mat ter

so th is is why I do not consider i t relevant .

Yes I did not ask you that quest ion. Am I correct in

saying that one does tend to remember th ings fa i r ly c lear ly

short ly af ter the event? --- Obviously better than af ter a longer

t ime unless you make notes of the events and obviously of

certa in th ings I have made notes th is specif ic incident was

recorded ( indist inct) pol ice are saying they and therefore the

statements are ( indist inct) next day.

Yes so you did make notes and you did refresh your

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memory I am sure today? --- No, as far as I recal l having said

that he would come with f i re and a kni fe i t const i tutes a case of

int imidat ion and that is what I consider as relevant to th is case

and that is what I remember.

Now you have to ld the court that this re lated around the

maintenance of the older chi ld I have asked you what you

remember al l you remember is th is aspect of the f i re and the

knife. - -- I mean i f somebody would come wi th f i re and a kni fe

to your house you would also be upset about i t .

How did you relate th is s i r back to the maintenance

matter i f you cannot remember anything beyond the fact that

he said that he would come wi th f i re and a kni fe? --- That was

the reason, he could not g ive a reason to be upset wi th me. the

accused has got a pol icy to educate people who do not…

(intervent ion)

I f you can l isten to my quest ion sir? --- Okay.

You have said that you can remember the aspect of the

f i re you can remember the aspect of the kni fe correct you

understand what I am saying? --- Not aspect i t is words I can

remember the words.

Just let me f in ish please si r . So you remember those two

aspects? --- Mm.

And I asked you i f you remember anything else that the

accused might have said and you say you cannot remember.

But you have said ear l ier on in the court that th is is related to

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the maintenance aspect. How do you relate i t to the

maintenance aspect i f you cannot remember anything else

besides the f i re 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 te lephone

obviously i t wi l l remember al l the surrounding issues. I t is a

di f ferent th ing al l the surrounding issues and the very words

that were said that moment on the te lephone.

Can I assist you si r , you ment ioned the knife and the f i re

is i t 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. I f someone

shouts at you or someone swears at you or say something l ike

that then certainly you wi l l remember i t? --- Because obviously

the maintenance issue is not part of the cr iminal proceedings

as far as I am… (intervent ion)

I am asking you sir to inform the court what caused you

to remember those speci f ic words? --- Because they const i tute

wi th the act of int imidat ion. So I knew that I have to remember

that.

Are you certain that is a l l you remember nothing further?

--- Of th is speci f ic conversat ion as I said in my statement I

said that he to ld me to stop messing around wi th his gir l f r iend

something to that ef fect that is what is in my statement so that

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is obviously what… ( intervent ion)

And that is how you remember i t and you assumed from

the use of the words f i re and a kni fe that he was going to come

and ki l l you? --- No look i f somebody comes wi th a kni fe he

might in jure you I mean there are cases but he might not k i l l

you.

Listen to my quest ion, you deduced f rom the fact that he

ment ioned a kni fe and f i re that he was going to come and ki l l

you, am I correct that is what you said to the court? --- That he

could potent ia l ly do that yes because he threatened to do that

i t was a threat.

Because he ment ioned a knife and f i re? --- That is

correct .

And i t was something that you had to deduce? He did not

come direct to say he is going to come and ki l l you? --- No, he

could have been helping me cutt ing my meat for the evening

that is a lso a possibi l i ty .

And your concern then that your fr iend that is Mol ly

Al l ison was there when these th ings were said? --- That is

correct .

And you are certa in 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 f i re and the kni fe. She obviously

only heard whatever was said af ter the speaker was switched

on.

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Yes, and that is the point of having Mrs Al l ison there to

conf irm what you had heard otherwise i t is just what you hear

nobody else am I correct? --- That is correct .

And you are a hundred percent sure of that? ---

( Indist inct) on the speaker phone when the accused said these

very words and we both heard them together.

Sir I put i t to you that a l though my cl ient wi l l conf irm as

you said he did contact you on that part icular day but i t was to

try and locate his wi fe 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 instruct ions f rom the accused are that at no stage did

he ever threaten to k i l l you or g ive you indicat ion that he was

either going to burn down your house or k i l l you in any way? ---

That is obviously what the accused say and I say the other

th ing.

And i f any evidence to the contrary should be put before

th is court then ei ther that person is not te l l ing the truth or you

are not te l l ing the truth or the accused for that matter? ---

Three people who were present is the accused mysel f and Mrs

Al l ison al l three wi l l g ive their test imony and then i t is up to

the magistrate to decide.

Now this incident you said happened on 24 July 2004. ---

Correct

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Now i f we can move on to…? --- 29 January 2005.

29 January 2005. on th is part icular day you aid that you

approached th is house in Guguletu went to the funeral? ---

That is correct.

Whose funeral was i t? --- I t was the funeral of Oscam

Mkona that is ( indist inct) o ldest uncle who is not, he is a direct

uncle i t is the only chi ldren that is grandfather had with his

gir l f r iend i t .

Were you aware of when th is gent leman died? --- He died

a couple of days ear l ier but I do not recal l the date.

I am sure we wi l l be able to conf i rm this f rom the

necessary death cert i f icate. --- Yes that should be.

Now you went there wi th your ex-wife ’s f i rst son? --- That

is correct .

And can you just re late you say you arr ived there at

08:00? --- I t was ear ly in the morning I would say around 08:00

ja.

And you say the other members of the fami ly were

already there? --- Not a lready there they were in the house of

the fami ly they were not al ready there they were already up.

So this is a fami ly ( indist inct) Mkona’s? --- 142 NY89 is

the fami ly home the hose belongs to the grandfather Mr.

Stanford Mkona and his chi ldren are occupying the house.

And al l the family members were there. how many fami ly

members were there? --- I can recal l that th is morning

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Petronel la Mkona was present , L indiwe Mkona was present,

Charmaine Mkona was present… ( intervent ion)

Petronel la, L indiwe? --- The three daughters which is

Petronel la, L indiwe and Charmaine. Boet ie Mkona was present

there was a Cl ive a fr iend of the fami ly also l ike a l ive in fr iend

of the fami ly by the name of Cl ive his surname escapes me at

the moment was also present. Obviously there were chi ldren I

do not recal l which chi ldren were there but there were var ious

chi ldren there.

You said you went in there and you heard that the funeral

had then been cancel led? --- Yes that is correct i t was not

cancel led i t was postponed.

I t was postponed? --- You cannot cancel the man was

apparent ly dead.

Do you know when the funeral was going to be postponed

to or what was the reason for the postponement? --- There was

apparent ly a problem that they did not make the necessary

bookings at the graveyard in t ime 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 i t was supposed

to be postponed by another week which was not a big tra in

smash you know what I mean i t was not of part icular relevance

as far as I can see.

You say there was a problem? --- There was apparent ly a

problem why the undertakers were not informed in t ime the

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grave was not dug in t ime or something.

Were you in fact invi ted to the funeral? --- I t is actual ly

not invi te, i t is part of the Xhosa cul ture that you attend a

funeral i t is actual ly an obl igat ion. I t would have been rude i f I

would have not at tended the funeral .

How did you know that the funeral was on? --- I was

informed by the fami ly.

So you were in fact invi ted? --- You can say I was invi ted

ja.

Did you ask why nobody has informed you, you took a

day off work and you arr ive here and now suddenly the funeral

is not going to happen? --- I t was Saturday so I real ly did not

take a day off work i t was a Saturday so I was not that , i t was

not part icular ly, i t was as I said not a tra in smash that i t was

not that day I mean I had my nice sui t on and everything but

you know ( indist inct) I can also take a day off . I t was not a

part icular problem.

So what you to ld the court ear l ier on that you had to take

a day of f is not correct in fact i t was a Saturday because i t was

your day of f in anyway. --- Ja but I am self employed so I

a lways work Saturdays. I del iberately decide whether I want to

work or not I normally do work but I took the day off f i r myself

not f rom my boss but f rom mysel f .

Now you said that you then went into the house and th is

funeral was cancel led and the accused? --- The accused was

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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

fami ly in the sense that he has a relat ionship in fact he is a

member of the family ( indist inct) is h is biological son? --- You

must understand that i t posed the problem to the fami ly as I

was of f ic ia l ly marr ied into the fami ly. So I had a legal standing

as far as the community is concerned into the house whi le the

accused did not have an of f ic ia l standing he was more l ike an

embarrassment to the family that is why he was not of f ic ia l ly

there.

That is your opinion sir . - - - That is my opinion and the

community ’s opinion.

Because am I correct in saying si r as I understood i t in

terms of south Afr ican law you were divorced from the lady? ---

That is correct.

So legal ly speaking you were divorced from the lady? ---

I was in a court of law I was divorced f rom her. But as I was

st i l l the custodian of the chi ld I had an obl igat ion obviously to

br ing the chi ld to the funeral and to at tend the funeral.

Now you ment ioned that the atmosphere became chi l l i

how did th is come about? --- The atmosphere became chi l l i the

moment that the accused entered.

When you say i t became chi l l i what, how do you mean

what gave you th is impression? --- Obviously look because you

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are aware of c ircumstances you point certa in c i rcumstances

out that he was the boyfr iend of my ex-wi fe having two people

in the same room with the fami ly is obviously not the perfect

s i tuat ion.

But for whom was i t chi l l i between you and the accused

or between accused and the family or between you and the

fami ly who? --- Between everybody and everybody basical ly.

Because the accused wi l l deny that he in fact entered the

house at any stage? --- Ja but he def in i tely entered he did

def in i te ly enter the house that morning most def ini te ly.

When you became aware and given the fact as you have

al leged now that there was a funeral that someone a member

of the fami ly had just d ied the fami ly were there that the

atmosphere became chi l l i why did you not s imply leave? ---

Simply because Thando the chi ld was st i l l p laying outside wi th

his f r iends so I obviously col lect h im f i rst before I could leave.

But i f I understand your test imony you cont inued to take

the day off you were going to spend the rest of the day you

were dr inking coffee? --- At the t ime I and the rest of the

Mkona fami ly were st i l l f r iendly so I had no reason to leave the

house.

I f we can go through i t now you say you were there the

chi ld is with his f r iends you say the accused then entered the

house. What happened then? --- We did not have any

conversat ion at a l l not any deal ings at a l l at that t ime.

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Now given the fact that you had ear l ier lay charges

against the accused where you thought that the accused was

threatening you is int imidat ing you in 2004 a case which had

not been completed am I correct? --- That is correct .

I f you had th is fear why did you not leave the house here

he is he is in a posit ion to carry out h is 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

col lect my ex-wi fe and the baby that was what he was for and I

d id not interfere in what he was t ry ing to do. By keeping myself

aside and not interfer ing in his business I fe l t to be reasonably

safe and I fel t protected by the other members of the family

a lso I was not a lone.

Now you said he came to col lect your ex-wi fe and the

rest of the fami ly, how big is th is house i f you can just indicate

to the court? --- The house is fa i r ly small i t is smal l .

As the houses are in Guguletu. --- Ja they are very smal l .

How many rooms do you know? --- One room where you

enter a l iv ing room and i t has got one bedroom and a ki tchen

and ( indist inct) i t is a very smal l place ja.

When he came to fetch his companion and his chi ld who

did he address did he speak to you or did he speak to anybody

else? --- No he went stra ight to her. She actual ly cal led her,

they immediately went outside and had their deal ings their

conversat ions outside next to a car that was parked outside.

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You say you did not see the deal ings that went on

outside? --- I d id see but I did not hear. I d id see the two of

them but I d id not want to get involved at that t ime I have

already detached myself to a point where I d id not act ively

want to get involved into any of the deal ings.

When, i f I understand correct ly i t obviously could not

have been pleasant for you having, you say that the

atmosphere was chi l l i? --- Ja i t was not… ( intervent ion)

Was anything said by anyone? --- No, everybody in the

fami ly basical ly kept quiet and wai ted unt i l the accused lef t

wi th Petronel la and the baby.

And did she go wi l l ingly wi th him? --- This is a matter that

needs a lot of psychologists and a lot of examinat ion…

( intervent ion)

I am just asking you a simple quest ion si r . 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 wi l l ingly.

Now my instruct ions are that in fact you wanted to take

as you did wi th the elder chi ld you wanted to take the

accused’s chi ld with you as wel l? --- Has he got any evidence

to that ef fect?

Sir that is my instruct ion to you? --- I deny that .

Whether we put evidence before the court wi l l come in

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due course and you deny that? --- I deny that.

In fact my instruct ions are that in fact is the reason why

the accused went to the house on that day was to col lect h is

chi ld because i t was his own biological chi ld and he was afraid

that you were going to ( indist inct) of the court take his chi ld as

wel l? --- I do not know that his is in fact h is chi ld and I had no

intent ion of taking the chi ld that chi ld was wi th the mother at

the t ime which I considered is qui te where the mother

belonged. In fact the mother and the chi ld were playing that

morning together and they were both happy and I was quite

happy to see the mother and the chi ld and did not require any

intervent ion from anybody.

Now you said that your ex-wi fe took some t ime in packing

her bags and that you were alerted to the fact that something

was happening outside by Mr. Boet ie Mkona? --- That we are a

couple of hours at least , let ’s say maybe an hour apart , my ex-

wi fe was packing her bags she then lef t with the baby and the

accused and then af ter an hour ’s t ime roughly an hour ’s then

the incident happened. So my ex-wi fe and the accused went tot

their shack in Phi l ippi wi th the baby he subsequent ly locked

her up there and then he returned alone.

Did you witness him lock his wi fe up? --- I have a

statement of a wi tness.

My quest ion to you si r is d id you wi tness him locking up

his wi fe? --- No I d id not wi tness i t .

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Because my instruct ions are in fact that th is never

happened as you are relat ing to the court? --- I t is your

instruct ions I have got instruct ions f rom a witness that

obviously opposing i t .

And who is th is person? --- For the safety of the wi tness

do I have to disclose the name?

COURT : Mr. Murray are we not going into s ide issues now

taking up to much t ime.

MR. MURRAY : As i t pleases the court your worship. I t rust that

the necessary evidence wi l l be placed before court and has

been given to the defence. So i f we can just take i t then you

were si t t ing there you are having your cof fee the al leged

funeral has now been cancel led the accused comes in there is

a chi l l i atmosphere he comes to fetch your ex-wife and his

chi ld? --- Fi rs the come in and everything the cof fee was

afterwards af ter he lef t .

I see so he is gone? --- He is gone wi th my ex-wi fe and

the chi ld he is gone thought he si tuat ion gets a bi t more

pleasurable again and Lindiwe decides to make coffee for

everybody so I s i t with Lindiwe and we did not d iscuss any

problems relat ing tot the issue we were simply ta lk ing about

the weather and enjoying our cup of coffee.

So as far as you are concerned the accused comes in

there is a chi l l i atmosphere the two, your ex-wife and the chi ld

leave everything goes back to normal and you are si t t ing there

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at that stage? --- Yes I was quite happy.

Who was there with you at that t ime? --- I can only

remember that I was specif ical ly ta lk ing with Lindiwe but a l l the

other members of the fami ly that he ment ioned that I said

ear l ier were also ei ther in the house in f ront of the house or

around.

And you were discussing the weather? --- We were

discussing issues not pertain ing the accused or my marr iage or

the chi ldren we were discussing matters of no relevance

because al l of us had enough of the var ious problems we had a

mutual agreement not to ment ion any issues.

And then what happened? --- Then as I have test i f ied

ear l ier I heard a voice f rom the outside saying Fel ix your car.

And who was th is person? --- That was as I have only

heard the voice I might be mistaken I bel ieve i t to be and I was

to ld i t to be Boet ie Mkona so var ious bystanders to ld me but I

have not physical ly seen Boet ie because Boet ie was outside

and I was inside.

Have you, you are wel l fami l iar wi th the fami ly you were

in fact marr ied into the fami ly as you said? --- That is correct

yes.

We have heard how in the ear ly incident in 2004 you

were able to dist inguish the accused’s voice, Boet ie Mkona did

you dist inguish his voice on that part icular day? --- No.

So on th is occasion you could not do that? --- …

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(intervent ion)

PROSECUTOR : I th ink my col league, Boet ie Mkona and the

accused is not the same person so I am not fo l lowing your

quest ion.

MR. MURRAY : That is understood your worship I re lated to the

fact that the accused has indicated that he recognised the

accused’s voice and th is al leged conversat ion in 2004…? ---

Mr. Murray I understand what you are try ing to before here

once I have a conversat ion over var ious sentences a fu l l

conversat ion wi th accused on the te lephone and I could wel l

recognise his voice and the other is a cry f rom the dark Fel ix

your car. In that spl i t moment I d id not recognise the voice and

( indist inct) a di f ference sir .

No that is what I am asking you sir thank you for g iv ing

( indist inct) . Now did you, you said that you heard f rom other

people that i t was Boet ie Mkono? --- Ja I was to ld later on that

Boet ie came out of the house and saw i t .

Okay, did you approach Boet ie Mkona to ask him was i t

you cal l ing? --- No I did not speci f ical ly.

Why not? --- Because at the t ime afterwards there was a

lot of b lood and a lot of commotion so that d id not appear

re levant at the t ime.

You wi l l agree wi th me that a large amount of t ime has

since gone past s ince 29 January 2005 in fact over a year. - --

That is correct.

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Did you approach Boet ie Mkona to f ind out whether in

fact i t was him who cal led? --- No.

You did not? --- No and that is for the mere reason since

that incident the relat ions between mysel f and the Mkona

fami ly basical ly taken a plunge.

Since when has this plunge happened? --- The plunge

happened since the very incident that we are discussing here

now.

I f I may ask you on that p int s ir i f we accept your

evidence and my instruct ions are that f rom the defence side we

are not to accept that evidence that the wrong was being done

to you by the accused why f rom that date would the Mkona

fami ly not have good relat ions with you. You are si t t ing having

good relat ions he walks in and you al legedly get at tacked from

that t ime on there is not good relat ions? --- The relat ions were

not good because the Mkonas remains what I consider a

cr iminal 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 t ry to fol low the law and

reinforce the law and the Mkonas ambivalence towards the law

separated myself f rom them.

Sir we are speculat ing on that point but I put i t to you si r

the reason why in fact that there may have been a breakdown

between you and the Mkonas is the fact that you in fact

at tacked the accused before court . That you inst igated an

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incident on that part icular day? --- I am not aware of th is.

Now you hear th is voice cal l ing what did you do then? ---

I ran outside.

Is anybody wi th you? --- No at that t ime I ran outside

from the house to the outside where i t happened the car was

parked 25 metres from the door to the, i t is only a very short

d istance si r .

My quest ion to you is d id you run out a lone or were there

other people wi th you? --- I d id run out a lone but the other

people obviously immediately fol lowing me to see what is

happening. But at the t ime I d id not look behind me to see who

is fo l lowing me at the t ime my eyes were f ixed on the accused.

And the scene that greeted you when you came out there

i f I understand f rom your evidence was that your car was there

al l the windows were broken? --- That is correct.

And the accused was making his getaway? --- He was

making his getaway he was, the moment I spot ted him about

two metres away from the car wi th 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 i t would appear i f somebody runs away,

is two metres away from a scene of cr ime and he is equipped

wi th a iron bar and the windows are al l smashed then one

might th ink that th is i ron bar re lates to the broken windows but

I have actual ly physical ly not seen the accused breaking the

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windows I d id not physical ly see that. I t could have been

somebody else wi th another i ron bar.

You say i t could have been somebody else? --- Many

people wear i ron bars these days maybe the accused was

wearing one i ron bar and somebody else was wearing another

i ron bar.

Now where was this i ron bar you have ment ioned there

were a lot of other implements I th ink you have ment ioned? ---

The accused by the t ime I had him on the f loor …

( intervent ion)

I f we can just take i t 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 i ron bar? --- In his hands.

Lef t or r ight hand? --- That I do not know. In fact I do not

actual ly, I d id not see the iron bar with my eyes I fe l t the i ron

bar on my head because the i ron bar caused me a hole in my

head therefore I assume the accused had the i ron bar on him.

Yes but my quest ions are very s imple to you sir and we

need you to paint th is p icture because you do not seem to

have any other person here before court to paint i t for us. You

come out you see the windows are broken you see the accused

running away, two metres away from you and you ment ioned to

the court that he had an i ron bar? --- I d id, at the t ime…

( intervent ion)

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Did you in fact see him with an iron bar or you did not

see him wi th an i ron bar? --- I d id not see the iron bar.

You did not see him with an i ron bar? --- No.

You say you then chased after the accused? ---

Immediately not then immediately. Whi le i t a l l happened i t

maybe wi th in two to three seconds i t happened very fast I

immediately chased after the accused.

So you gave chase immediately? --- Immediately.

You ran st raight af ter h im. Now you see at th is instance

that we go back again to the al leged threats you say you

thought that the accused wanted to come wi th a kni fe and f i re

and so on and yet you chased af ter h im. He has just damaged

your car you st i l l go running after h im why did you not cal l the

pol ice to come and arrest him? --- Because how can the pol ice,

you f i rst have to get the man before the pol ice can arrest the

man.

I put i t to you sir that is a pol iceman’s job to go and f ind

the suspect to arrest h im and to br ing him to just ice. --- As you

know yourself , what would you do you t r ied, no we are not

going to this incidence just leave i t there. at the t ime I fe l t that

I am with in my r ights to do so you can correct me i f I was

wrong but I fe l t i t was wi th in my r ights to do so.

I out i t to you the reason that I f ind th is st range si r th is is

someone who has threatened you he has already, i f we accept

your evidence, has already damaged your vehic le and you st i l l

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give chase after h im? --- Yes obviously I mean I wanted to

protect my property and mysel f so whoever is aggressive I t ry

to catch them and br ing them in front of the court of law. What

I know I bel ieve the matter belongs to.

Now did you cal l anybody to come to your assistance? ---

No but everybody was there. I d id not have to cal l anybody

everybody came… ( intervent ion)

Did anybody come to your assistance? You are chasing

after the accused did anybody come…? --- At that very moment

no I actual ly, look after I got hi t the f i rst t ime and I fe l l on the

f loor as I have said… ( intervent ion)

Sir we wi l l come to that when i t is necessary you see the

accused running away did you cal l anybody you said there

were people outside the house and people around? --- No I d id

not cal l anybody.

So you chased af ter 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

cent imetres si r . The pol ice conf iscated the i ron bar i t should be

an exhibi t actual ly. Al l the things were actual ly conf iscated by

the pol ice at the t ime.

Sir , can we just conf ine ourselves to the evidence that

you have relayed before court . What was the distance was i t

two metres or 50 cent imetres as you indicate to the court? ---

The accused was two metres away from the car but the i ron

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bar was about 50 cent imetres long.

Sir are you sure you understand my Engl ish because I

put i t to you the accused was two metres away from the car

was running away am I correct? --- Ja.

And gaining distance al l a long am I correct? --- He was

not gaining, when I fe l l down the f i rst t ime we were maybe four

metres away f rom the car th is thing happened very fast .

Sir i f we can just go back and do i t 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 f rom the car.

He is two metres away f rom the car. - -- And maybe at the

t ime 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 pol ice at the t ime did not actual ly do that.

COURT : Thank you the court wi l l then adjourn unt i l 14:00.

COURT ADJOURNS

COURT RESUMES 14:00

FELIX FURTAK : s.u.o.

CROSS-EXAMINATION BY MR. MURRAY : (cont inued)

Mr. Furtak you remember we are now discussing the

second al leged incident that took place on 29 January

al legedly 2005? --- That is correct .

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Now you ment ioned 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 i t? --- That is

roughly ja.

And you immediately gave chase? --- That is r ight.

And you in i t ial ly said that he had an i ron bar now you say

he did not have an iron bar that you could see? --- No, no I

only physical ly saw the iron bar once I safeguarded the

accused I saw the iron bar and al l h is other weaponry. At the

moment when i t actual ly happened i t happened so fast I had no

t ime whatsoever because i t was a matter of three or four

seconds to take any note of anything else.

You only saw the i ron bar and you ment ioned I think i t

was acid and th ings l ike that? --- Yes both I have ment ioned

the i ron bar a bott le of acid a bott le 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 i t was found? --- Physical ly I d id

physical ly see the knife in his pocket the two bott les were

laying on the f loor and the i ron bar was st i l l on him or on his

hand but somebody took i t of f and I d id actual ly at the t ime

made sure that the arrest ing of f icer would take al l these four

i tems but I am… (intervent ion)

Did you understand what I am saying now did you in fact

see him in possession of those things or were they just c lose

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by to him? --- They were physical ly on his body I would say ja.

Did you see that? --- Ja.

You had to th ink a moment there did you in fact see

these i tems on him? --- I saw the i ron bar i tsel f there were a

lot of people around i t immediately who took al l sorts of th ings

I d id even see how somebody actual ly took his kni fe somebody

even from the family actual ly took his cel l phone even. So I

even tr ied to k ind of protect h is property l ike hyenas came over

the accused t ry ing to rob him and stab him not stab him but

k ick him and he was not t reated nicely at a l l by the crowd. But

I can say that I saw wi th my own eyes I saw the iron bar I saw

the knife that I physical ly saw in his pocket. That I actual ly

remember and I saw two bott les.

While we are on the subject do you want to descr ibe to

us what th is i ron bar looked l ike? --- The iron bar I would say i t

was a rough i ron bar wrought i ron rough steel i t was l ike dark i t

was not chrome or shiny i t was a dark rough thing about that

long.

For any specif ic purpose as an engineer you would know

for instance you have a crowbar what was i t? --- Very rough

l ike a crowbar for example ja but i t was not a f inished tool I

remember i t was not a f in ished tool l ike a crowbar would be a

f in ished tool wi th f in ished ends i t was not a f in ished too as

such ja. The pol ice should actual ly have put th is in of f ice the

i tems which I hope.

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Now the acid you ment ion and the petrol in what sort of

containers were they? --- The bot t les were ly ing next to him

and I have actual ly physical ly not… ( intervent ion)

Can you just l imit yoursel f to the quest ions I am asking

sir . You ment ioned there was acid was i t in a container? --- In

a l i t t le ( indist inct) loose containers bott les l ike th is here.

COURT : Normal plast ic f ru i t ju ice container is shown.

MR. MURRAY : what type of acid was i t? --- I do not know

because I was told by the fami ly that I was… ( intervent ion)

I do not want to hear what you were to ld s i r you have told

the court today that there was acid in that bot t le I want you to

te l l the court how do you know that there was acid in that

bot t le? --- Okay I have not ver i f ied that mysel f .

So you are not sure, you have ment ioned that there was

a further bott le wi th petrol in? --- Yes that a lso I have not

ver i f ied myself that the contents was in fact petrol .

You do not know what has happened to these i tems? --- I

was te l l ing the arrest ing off icer to please conf iscate the i tems

whether they have actual ly physical ly done so I do not know at

th is stage.

And more than a year has gone past and you have not

bothered to fol low up on th is? --- I have actual ly fo l lowed up a

lot I do actual ly have the telephone numbers of the arrest ing

off icer who should be cal led as a wi tness I th ink he was

actual ly cal led today in so we have tr ied to get the ci ty pol ice

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arrest ing of f icers here in court so they can conf irm what I am

saying ja.

Am I correct in saying that these were very important

i tems and i f I understand your evidence before court today you

in fact, you to ld the pol ice about them the ci ty pol ice and that

they should have removed i t on that day am I correct? --- That

is correct .

Am I correct in saying th is should be a very important

indicat ion of what the accused, i f we assume, my instruct ions

are that the accused was not in possession of such i tems that

i t would indicate what the accused was th inking of? --- I t is

obviously very important i tems that, is correct ja.

Would I be correct in saying that wi th the except ion of the

iron bar i t would be fai r ly strange for the pol ice to leave these

i tems out of the statement taken from you? --- Please repeat

the quest ion?

I f the pol ice did not note th is down in a statement that

was taken f rom you i t would be rather strange because these

are important i tems regarding the al leged of fence? --- I t is

important i tems, that is correct.

So i t is rather strange i f the pol ice do not put th is into

your statement or d id you tel l the pol ice about th is? --- I t

should be in my statement I am sure i t 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 r ight now and i t is in fact part of

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my statement. I have got my statement here and i t says i t here.

Sir I see you are waiving a pr inted statement may I

request that I have a view of that statement I am not in

possession of any pr inted statement.

COURT : Sure you are welcome. Okay th is is a statement the

wi tness typed himsel f or had i t typed and are you saying you

have a copy of a statement that the pol ice then rewrote?

MR. MURRAY : I t is just a mater of record your worship I was

never made and I assume this came out of the court docket i t

was never made avai lable to the defence.

PROSECUTOR : Your worship the only statement that the state

has in their possession is the statement that has been here al l

a long unfortunately I cannot comment further on what was

handed to the defence as far as I know the part iculars were

handed over on an ear l ier date and i t is not a new statement i t

has been there al l the t ime.

COURT : Does i t d i f fer f rom the statement you have f rom this

wi tness?

MR. MURRAY : The statement that was given to me and

unfortunately I had no opportuni ty to correct that, i t d i f fers

substant ia l ly f rom the statement, the wri t ten statement that

were provided to the defence. (end casset te 2)

MR. MURRAY : I am in possession of a wr i t ten statement

perhaps i t might be an idea to D1 which has been made

avai lable to us or A1 i t looks l ike a D. I f I can just have a quick

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look at A1 and perhaps I can.. . i f I may cont inue your worship

just on th is point Mr. Furtak i t is now a matter of record I

requested that an aff idavi t which you have been referr ing to in

the court i t is a typed af f idavi t and i t is typed and I assume on

your business correspondence? --- That is correct.

I t is Lancier Esads ( indist inct) Service CC that is your

business? --- I t is correct that is my let terhead.

That is your business now you typed this statement out?

--- That is correct.

Am I correct? --- And i t is s igned by a commissioner of

oath.

Yes I would di f fer wi th you in saying that i t is in fact

correct ly commissioned? --- I t was stamped by the Woodstock

pol ice stat ion they have done i t formal ly I apologise ja.

I informing you in terms of the rules i t would appear that

i t has not been correct ly commissioned. I t had been signed by

someone who cal ls h imsel f a commissioner of oaths. Now is

th is the f i rst statement that you made? --- That is correct .

And did you then provide th is to the South Afr ican Pol ice

Services? --- Yes.

Now I have a statement here si r and unfortunately i t

would appear once again i t is not completed. I f I can show you

the statement would you just have a look at i t I see i t has been

in i t ia l led i f you could just advise me whose ini t ia ls are those at

the bot tom of the page? --- I do not know this person in i t ia ls i t

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is certa in ly not my in i t ials i t is also certa inly not my statement.

So what you in fact are saying is s i r is that the state i t

was just provided to me f rom the state’s f i le that the defence

were provided with a statement that is not ini t ia l led by you and

i t is purport ing to be a statement that was taking form you? ---

Al l I can te l l you is that speci f ic piece of paper has not been

in i t ia l led by myself that is a l l I can say.

COURT : Not been wri t ten by you but d id you actual ly s ign i t?

--- No i t is not my signature.

MR. MURRAY : I see there is an in i t ia l down at the bottom there

i t would appear to be an FF you say that is not your s ignature?

--- May I have another look because I only saw the one in the

middle.

There is an X down at the bottom. --- No, no i t would

appear but my signature is considerably di f ferent i f you look on

the other statement my in i t ial is considerably di f ferent.

I see i f we have to accept your version that what we are

seeing here before court today is that a statement purport ing

to be part of the pol ice docket A1 was provided to the defence

according to your version and you say that is not the correct

statement? --- Al l that I can say is that th is piece of paper that

you are showing me has not been in i t ial led by me.

We are deal ing wi th the statement am I correct in saying

that i t can perhaps become a matter of record as wel l th is

part icular statement A1 nowhere is i t ref lected in th is part icular

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statement that there was as you have in th is other statement

that you have typed out yoursel f a bott le of paraff in and a

bot t le of acid nowhere is i t ment ioned in this statement? ---

The other statement no.

Would you care to have a look at th is we can make i t a

mater of…? --- I have made my statement which was my only

statement which I s igned and bel ieve to have t ruly

commissioned so.

So you cannot enl ighten the court as to th is? --- No I do

not know where i t comes from you must c lear up but I cannot

say anything about th is piece of paper.

I see, I see the second statement was made on 16

February 2005 is that correct? --- I f that is the date on there

then i t wi l l be correct .

Am I correct in saying that th is 16 February is perhaps in

excess of two weeks af ter the al leged incident? --- In excess

the 16 t h of February instead of the 29 t h January therefore

February is in excess of two weeks yes i t is correct.

That is what I am put t ing to you I want your conf i rmat ion?

--- Yes.

Yes you had t ime to th ink about what you wanted to say?

--- Yes.

Now i f 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 v is ion at

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this stage of the proceedings you did not see anything on him

and you gave chase behind the accused? --- That is r ight .

Now the accused is running away you are ran after h im

how far fur ther d id you run? --- I would say when the f i rst t ime

when I had my f i rst s lash on the head that was maybe only

another two or three metres i t was vir tual ly instant ly.

Sir , you are chasing after the accused do you have him in

your s ight is he in front of you obviously? --- He is in f ront of

me. I am facing his back.

Yes now you are running after h im? --- That is correct.

And then what happens you are running the two of you

one behind the other? --- I am running try ing to catch him and

then I fal l down on the ground.

You are t ry ing to catch him and you fe l l on the ground?

--- I fe l l on the ground I was hi t on the head and fe l l on the

ground and we have a J88 document.

With al l due respect s i r I am t ry ing to make logical sense

and you are an engineer you are a person of some

educat ion…? --- I do understand i t appears now dif f icul t how

somebody who runs in that d i rect ion can hi t somebody who is

behind him. That I do agree there is a logical… ( intervent ion)

You do agree there is a problem with that? --- I do there

is a logical problem I do agree wi th i t .

That is in fact what I am try ing to establ ish from you si r .

You were there we were not there. --- Al l I know is that I d id

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fal l on the ground and i t 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 wi th in three seconds

i t was very fast.

So the version that you are giv ing and I pout i t to you si r

that as an engineer the discip l ine that takes in a lot of logic,

the logic would inform us i f you are chasing af ter 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 real ly know what other

person should have been behind there. The accused could

have turned around I mean he could have turned around and

just ( indist inct) the bar I mean i t is qui te possible ja. I mean

you run and you go l ike th is and bang the bar behind you and

hit somebody i t is quite possible i t is not impossible. I

speculate I mean I fe l l on the ground I was hi t on the head and

I fe l l on the ground that I know.

I cannot establ ish why you f ind i t is so di f f icul t in a

logical sequence you are chasing after the accused then you

get h i t on the head and you fa l l? --- Ja.

I put t i t to you once again before I leave th is point that i t

is impossible for the accused to have done so? --- I t actual ly

not so because you can turn around and hi t behind you i t is

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qui te possible.

Now you, i f we accept the fact that you were hi t over the

head and then you col lapsed 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 i t took me approximately

another three or four metres to f inal ly catch him. I do not know

at what point he actual ly hi t my chest at what point that

happened I cannot remember. I know that the r ib was broken

but I do not know when exact ly in the chain of events he did

actual ly hi t , the second t ime on the nose and on the, so i t must

have been one two, he must have hit , three in jur ies therefore…

( intervent ion)

We do not want to hear must have I want to f ind out

exact ly what happened. Okay you say you get up you say you

have been hi t 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 h im on the f loor on the ground.

I see. And were you helped by anyone? --- Later on

people l iken Cl ive that I ment ioned ear l ier came from the

house and he chained not chained what do you cal l i t t ied the

accused up so he could not escape anymore. When did you

discover that you had been in jured in the nose and in your

r ibs? --- Only when I came to the cl in ic, when I came to the

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cl in ic the I saw obviously I was to ld I had a hole here which I

cannot see mysel f and the nose I saw in the mirror and the r ib

I only not iced as I have said ear l ier three days later when I had

very severe pains.

So once again s i r I put i t to you that logic would inform

us that i t is an extremely painful s i tuat ion to be hi t on the nose

am I correct? --- Ja.

Perhaps one of the more painful p laces on the body when

you get h i t . - - - Ja.

An extremely painful s i tuat ion when one has one’s r ib

broken am I correct? --- Ja.

And you are going to te l l the court today that between the

t ime that you were hi t over the head and knocked down and the

t ime that the accused was arrested you cannot te l l us exact ly

when these blows happened or how they happened? --- Look i t

was adrenal in and i f you would actual ly get medical advice that

you know that the moment a person is under adrenal in you wi l l

not feel any pain at a l l . I f you have a l i t t le b i t of medical

knowledge you should know that.

That is your opinion sir . I put i t to you si r the fact that

you cannot state these th ings is because in fact the events did

not happen on that day as you have suggested to the court

today.? --- That is you suggest ing that. The events most

certa in ly happened exact ly the way that I told i t .

My instruct ions before court today are that in fact my

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cl ient when he came to the scene arr ived to f ind his own

biological chi ld s i t t ing in your car. - -- That unfortunately was

on a di f ferent day. There unfortunately your c l ient is mixing his

dates up because that was two weeks preceding that event.

Your c l ient unfortunately mixes the dates up I am aware of that

event.

On that point s ir what were you doing wi th his chi ld in

your car? --- You mean two weeks ear l ier?

Yes. --- That is not part of the case now.

Sir I am asking you a quest ion what were you doing with

his chi ld in your car because I need to establ ish the

circumstances because i t is c ircumstances that is being

suggested to you? --- Look two weeks ear l ier I got in fact there

at the same place wi th my car and the chi ld together wi th other

chi ldren entered my car and was playing in the car where I had

no object ions to.

My further instruct ion sir on th is part icular day was that

he was concerned because of the fact that you had taken the

other chi ld that h is chi ld would be going as wel l and he took

his chi ld out of your car c losed the door and then you came

and gave chase and attacked him that is the accused? --- On

th is speci f ic day the chi ld that he is referr ing to as his chi ld

was in fact with the mother in the shack in Phi l ippi the chi ld

was not even there. so that cannot be true at a l l he is mixing

up two events what he is tel l ing you is an event that happened

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two weeks pr ior and in th is, i t maybe caused his anger and th is

was maybe a si tuat ion preceding the other event but they were

factual ly roughly two weeks apart .

My further instruct ions sir is that you approached the

accused you took him by the throat and you began to assault

h im? --- The fact hat I gave chase to the accused I grabbed his

neck and pul l h im to the ground and therefore safeguarded him

but by no means ever at tacked him.

My further instruct ions si r is that the accused tr ied to get

away f rom you? --- He did not have a chance.

Precisely he said he could not get away f rom you he did

not have the chance in fact he logged a stone in your di rect ion

to try and ward you off because he feared you, you then got

hold of h im you began to assault h im and the only way he

could stop your assault was by hi t t ing you with a bar. - -- This

is wrong.

My further instruct ions si r are that on this part icular day

that the accused was assaulted to such an extent that he had

to be hospi ta l ised himsel f? --- I do in fact have a copy of pol ice

statements as far as the condi t ion of… ( intervent ion)

I am putt ing i t to you and I do not want you to refer to

other copies that may be f loat ing around in your own purported

invest igat ion, s i r I am putt ing i t to you that the accused himsel f

was assaulted on that day and he had to be hospi ta l ised. Yu

cannot deny that? --- I do deny that yes.

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I beg your pardon? --- I do deny that.

Sir i f other wi tnesses come and test i fy in court today to

say or at some later stage come and test i fy and say that the

accused was hospi ta l ised on that day they are wrong or are

you wrong? --- I have a record that he in fact was at the day

cl in ic but there was no major injur ies 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 in jur ies why else would you go to

hospi ta l once again s imple logic. - -- Ja there was in fact that is

both he is ( indist inct) wi th the blood HIV problem because the

accused is HIV posi t ive and we were both bleeding so there is

a very unfortunate matter why the blood is qui te relevant here.

But I was not infected so.

Be careful wi th your words there si r . Just a f inal aspect

do you deny that the accused was in jured on that day? --- I am

not denying that he was in jured but I deny that I in jured him or

assaul ted him that dur ing our fa l l on the ground he might have

sustained an in jury that is possible that I do not deny but I

deny that I assaulted him or in jured him. I had no weapons and

I d id not even use my f ists.

My instruct ions are that you in fact assaul ted him on th is

part icular day? --- That is not correct.

Now going back to the f i rst incident you ment ioned that

Mol ly Al l ison was in a di f ferent room am I correct? --- She was

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in the bedroom but I was in the off ice.

How did you get to switch on the phone did you in fact go

to where she was or d id she come to you? --- No she came to

me.

Did you cal l her across? --- I d id cal l her across.

What did you say to her? --- I said Mol ly 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 l is ten or something to that ef fect ja.

Now you said that you sustained damages to your vehic le

you ment ioned i t was a Lancier Fuvia in the region of what was

i t? --- I est imated i t for R13 000,00 but i t is a rather arbi t rary

because the car cannot just be repaired.

What sort of damages were sustained? --- Al l the glass

was broken the dashboard was broken and two chrome

beadings were broken. Al l the glasses overal l s ix i t is e ight,

e ight p ieces of g lass.

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 vehic le? --- Part ia l ly I have got al l

the side glasses are repaired I am now wai t ing for the rear and

the front screen.

Did you repair i t yoursel f? --- Yes.

Did you personal ly do any panel beat ing work? --- Yes

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sir .

Now you ment ioned in court that the parts that you got to

make the necessary repairs you obtained them from your own

sources? --- From my ( indist inct) me as the dr iver of the car

are the only person in South Afr ica who can repair i t but i t is

just a coincidence.

My quest ion 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 try ing to.

Yes and th is you are running i t as a business? --- That is

correct .

Are you registered wi th the South Afr ican Revenue

Services? --- Most certa in ly.

As a business? --- That is correct .

And you are obviously aware of your responsibi l i t ies as

far as your responsibi l i t ies towards the South Afr ican Revenue

Services are concerned? --- Most certain ly.

Now you repaired these from your own sources the

vehic le? --- That is correct.

Did you make an inventory of your repairs? --- Yes most

certa in ly.

Did you provide that to the state? --- We have the, the

state has got a copy of the est imate of the repair I detai led al l

the parts in detai l that I needed fort the repair of the vehic le

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and the prosecut ion should have a copy of that. I can provide

you wi th a copy i f want to.

I have got a copy at th is 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 th is stage i t appears that the state was not

provided wi th 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 ( indist inct) there is a complete inventory avai lable

for your perusing.

Now this matter has been a long t ime coming to court am

I correct? --- That is correct.

Have you attempted to have any contact wi th the accused

since that t ime? --- No. the accused actual ly phoned me about

two weeks ago but I never contacted him. Actual ly now I am

ly ing sorry I am under correct ion whi le the accused was

actual ly in Pol lsmoor I wrote him two or three let ters wi th

c igarettes v i tamin tablets and some posit ive words. But the

accused never responded to these let ters. Okay to be correct I

have however had served an interdict against the accused

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about a year ago.

Yes i t would appear that the accused who has recent ly he

was released f rom imprisonment has been keeping to the

interdict . You say that you t r ied to contact the accused in

Pol lsmoor? --- No i t was long, i t was the f i rst t ime he was in

pr ison twice and I had in fact the f i rst t ime sent h im two let ters

wi th some goodies for himself and asked him to get in touch

wi th me but on the second imprisonment term I d id only I th ink

he got the interdict served which was not personal ly by me but

obviously by the clerk of the curt . Two weeks ago the accused

phoned me again.

Now on that aspect my instruct ions are that you have in

fact been sending SMS messages to the accused as wel l? ---

That is correct. I omit ted 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 th is

current case before court i f he assists you? --- No I have never

said that. The accused had asked for that. The accused has in

fact of fered to return the wi fe and the baby i f he gets acquit ted

in that case. But as i t is obviously in the court of law i t is

h i lar ious I d id never enterta in that of fer.

My instruct ions are that you have been SMS-ing the

accused offer ing to wi thdraw this case i f he can sort out the

problems between you and your ex-wife his companion at the

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moment the mother of h is chi ld? --- I do in fact have copies of

these SMS’s so I do not recal l them but th is can be ver i f ied. I

would have to get the copies of the SMS’s.

My instruct ions si r are that at no stage did he ever of fer

and he puts i t most vehemently that he would never of fer to

give his bio logical chi ld to you at any stage that in fact this

whole problem started with you at tempt ing to take the chi ld

from him and that was how he tr ied to retr ieve the chi ld f rom

your car? --- Sir I never had any intent ion of taking any

biological chi ld f rom him so I do not know.

Thank you your worship no further quest ions.

NO FURTHER QUESTIONS BY MR. MURRAY

RE-EXAMINATION BY PROSECUTOR :

On this specif ic day when the incident of the car

happened was the baby in your vehic le? --- No as I stated

ear l ier my ex-wi fe and the baby was going away wi th the

accused to the shack of the accused in Phi l ippi . According to a

statement that I have from another wi tness they were both

locked up in the shack whi le the accused then came back to

the scene. The baby was in fact two weeks ear l ier on a pr ior

v is i t wi th a di f ferent car has indeed played inside the car and

that in fact is t rue.

And have you at any stage ever at tempted to take the

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accused’s baby form him? --- No I have however and this is to

get the matters c lear I have evidence that the chi ld was

abused and I have informed the social services of the possible

al leged abuse and have asked the social services to

invest igate the wel lbeing of the chi ld.

But have you ever physical ly t r ied to take the chi ld away

from the accused? --- Never ever I have physical ly on one or

two occasions touched the chi ld when i t came running to me

but I have never ever would I do that.

And on the day of the incident wi th the te lephone when

the accused contacted you do you have any knowledge of the

mother of the chi ld being locked up due to non payment of

maintenance? --- I know in fact that the mother did not want to,

what do you cal l i t , appear in court and obviously in the new

South Afr ican legis lat ion you do not come for a maintenance

hear ing you automatical ly get a warrant issued. So there as in

fact a warrant issued for the mother but she did eventual ly

comply and did actual ly go to a court hear ing wi thout having

been arrested. She was ( indist inct) the magist rate said she

caused a lot of t rouble for the court but she was never

physical ly arrested. I t is however t rue that i f you do not come

to a hear ing you can be arrested that is t rue.

But on the day that he contacted you on 24 July did you

have any knowledge of the mother of the chi ld being locked

up? --- No but he could have had knowledge of the fact that

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there was a warrant of arrest out for the mother.

Yes but d id you have any knowledge si r? --- That there

was a warrant out yes.

And did he on that speci f ic day ask you anything or tel l

you anything about the maintenance or…? --- I do not recal l

that. But I could see that i t must have been related because

obviously there is a certain relat ion of the problem. But the

maintenance case was clear legal issue even the mother did

s ign a consent maintenance agreement so she did actual ly in

court not even dispute my cla im.

On the day of the incident wi th 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 i t 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 t r ied to catch him myself .

Did you chase after h im wi thout any reason or was i t that

you feel that there…? --- The pure reason was to get h im

where are today in the court of law.

But why did you want to at that stage si r chase af ter h im

had he done anything at that stage? --- That is the th ing I

could see that my car was smashed and I could see him

running away from my car. I t is obvious that I made a logical

conclusion but technical ly speaking there the defence is quite

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right a completely di f ferent 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 h im did you honest ly

bel ieved that he had damaged your vehic le? --- I was honest ly

under that impression.

And did you have any weapon or anything in your hand

when you chased him? --- I had nothing, nothing at a l l .

And a comment was made to you or a version was put

that you in fact inst igated the attack what is your comment on

that? --- That is def in i te ly wrong i t is def in i tely not the case. in

fact I even protected the accused when other members of the

community t r ied to at tack him.

Did you in any way assault the accused on that day? ---

No not at al l but I am in fact aware that he went, he has also

been to the day hospita l to at tend to some minor in jur ies there

I have got some pol ice record but I do not know anything more.

But I mean you must see two men fal l ing onto each other wi th

i ron bars and knives in between. You know he could have also

sustained some minor in jur ies from that.

Thank you your worship I have no further quest ions.

NO FURTHER QUESTIONS BY PROSECUTOR

WITNESS EXCUSED

PROSECUTOR : The state st i l l has three other wi tnesses here

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today and may I proceed with the next one.

COURT : Sure.

PROSECUTOR : The state wi l l then cal l Mrs Mol ly Al l ison.

MOLLY ALLISON : v.o.e.

ONDERVRAGING DEUR AANKLAER :

Mev Al l ison ken u die k laer in hierdie saak Fel ix Furtak?

--- Ja.

Van waar af ken u vi r hom? --- Ek het v i r hom gewerk

Edelagbare.

En die beskuldigde in hierdie saak mnr. David Paola ken

u hom? --- Ja ek ken vir hom.

En hoe ken u vi r hom? --- Ek ken hom van 89 af dat hy

Pat se kêrel was of nog al tyd is.

En wie is Pat nou? --- Pat is mnr. Fel ix Furtak se vrou sy

ex-vrou.

Op 24 Jul ie 2004 was u by mnr. Furtak se woning gewees

in Woodstock? --- Ja.

Kan u assebl ief v i r die hof verte l 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 vi r my dat ek moet nader kom en hy sê vi r my saggies dat,

in l ippetaal dat d i t Landr ino is wat op die te lefoon is.

Ek wi l net iets opklaar wie presies is h ierdie Landrino

nou? --- Landr ino is mnr. Paola.

Nadat hy nou vir u gef lu ister het wat gebeur toe? --- Toe

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kom staan ek hier langs hom en hy druk die te lefoon daardie

knoppie het hy gedruk toe kon ek duidel ik hoor wat d ie persoon

aan die anderkant sê.

En wat hoor u toe? --- En dit was ek kon herken dat d i t

was mnr. Paolo se stem gewees en hy het kwaad gekl ink dat

hy sê toe mnr. Paolo sê toe vir Fel ix dat “ I wi l l get you I wi l l

come to your place with f i re” d i t is wat hy gesê het “or I wi l l k i l l

you” en Fel ix vra v i r mnr. Paolo en hoe sal jy d i t doen om my

dan nou te vermoor. Mnr. Paolo sê vir hom ek sal met 'n mes

kom al moet di t met 'n mes is. toe is d i t dat Fel ix d ie telefoon

neersi t en sê ons moet na Woodstock pol is ie gaan dat hy v i r

hul le gaan vertel wat hy nou net gehoor het wat mnr. Paolo

nou net v ir hom gesê het .

En het jul le toe pol is iestasie toe gegaan? --- Ja ons het

gegaan.

Sê vi r my voordat mnr. Furtak nou vi r 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 aansi t kon u toe nou hoor dat d i t Landr ino is mnr. Paolo

is soos wat u na hom verwys? --- Ja.

So sel fs a l het mnr. Furtak nie v ir u gesê dit is Landr ino

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 wi l l come to your place wi th f i re and I wi l l

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kil l you” is u seker dat d i t is wat u gehoor het op daardie

stadium? --- Ja di t is presies wat ek gehoor het.

Het d i t gekl ink asof mnr. Paolo ernst ig is oor sy

dreigement? --- Hy het in 'n kwaad toon gepraat hy was 'n

biet j ie kwaad gewees aan die anderkant.

Die verhouding tussen u en die beskuldigde in hierdie

saak het ju l le 'n goeie of 'n s legte verhouding of. . .? --- Nee

ons het n iks teen mekaar gehad nie want ek het hom ook al tyd

gesien wanneer hy inkom daar by die huis daar in Guguletu en

miskien vi r Pat kom haal en so aan dan groet hy net . Somtyds

dan si t hy ook nie dan sal hy al tyd daar staan in die deur dan

si t hy nie dan kom haal hy net v i r Pat dan gaan hy ui t .

En vi r mnr. Furtak sien u hom nog gereeld? --- Nee

mevrou ek sien hom nie gereeld nie want ek werk nie meer v ir

hom nie ek werk nou in Parow.

Is daar enige “bad vibes” tussen jul le 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 ui tgegooi ui t sy huis ui t hy het

my net u i tgegooi en ek was daar saam met my dogtert j ie want

ek het soos gebly daar.

So dit k l ink v i r my as ek nou reg verstaan en ek wi l n ie

woorde in u mond si t nie dat u eint l ik kwater is v i r mnr. Furtak

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as wat u is v i r mnr. Paolo? --- Ek is n ie weer kwaad vi r hom nie

ek is n ie meer kwaad vi r Fel ix n ie.

Dankie agbare ek het geen verdere vrae nie.

GEEN VERDERE VRAE DEUR AANKLAER

KRUISONDERVRAGING DEUR MNR MURRAY:

Is di t mev. Al l ison? --- ja.

Goed mev. Al l ison soos ek u verstaan het op 'n tyd vi r

mnr. Fel ix Furtak gewerk? --- Ja.

Was u ook bevr iend met mnr. Furtak? Dit het meer

gegaan as net werkgewer as ek di t so mag stel? --- Ja

Edelagbare.

Was u ook bevr iend met hom? --- Ja.

U het ook gesê op 'n tydst ip het u saam met hom gebly

saam met u dogtert j ie? --- Ja.

Nou ek het gesien vanoggend u het langs hom gesit daar

en gepraat gesels daar bui te in die gang? --- Ja ek het n ie

geweet hoe om hier aan te kom nie toe het ek hom gebel van

die werk af toe die pol is ie daar kom om vir my die summons te

kom af gee daar in Parow di t is wat ek v i r hom sê ek gaan die

sondag kom oorslaap in Woodstock toe sê hy ja ek kan maar

kom maar toe voel ek di t is beter as ek maar l iewerste 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 d i t

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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 eint l ik te s leg op

hierdie stadium nie u kan nog met hom kommunikeer? Ek praat

n ie van dat ju l le nou ui tgaan jy weet net dat jul le 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 di t is nader aan die hof as Parow? --- Ja di t

is soos gisteraand daar gaan, maar ek het n ie gegaan nie.

Nu hopel ik sal u my verstaan maar di t k l ink, u het gesê

dat op 'n stadium het u hy vi r u en u dogtert j ie u i t d ie huis

gegooi? --- Ja.

U het gesê gegooi? --- Ja my het my net weggejaag hy

het my net weggejaag.

Is ek reg as ek sê hopel ik kan u nou vir my sê of di t die

regte woord wat hier gebruik is maar di t k l ink v i r my mnr.

Furtak se persoonl ikheid is ietwat van 'n ontplofbare

persoonl ikheid as ek di t so mag stel verstaan u wat ek sê is d i t

'n goeie beskrywing? --- Ja hy is iemand hy kan sommer

ontplof .

Reageer? --- Ja hy is presies net so.

Is ek reg di t dui aan ui t sy aksies toe hy vi r u en

dogtert j ie u i t d ie huis gesi t het? --- Ja.

Nou goed u het nou vi r d ie hof kom getuig dat op 24 Jul ie

2004 u het nou geluister na 'n telefoonoproep wat gemaak was.

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Nou op hierdie dag het u gesien hoe lu i d ie te lefoon of hoe het

d i t gebeur waar was u op daardie tydst ip? --- Ek was besig in

die kamer en wanneer ek in die kamer is dan kyk ek sommer

regui t h ier na sy off ice toe waar hy si t . Sê maar ek kom ui t dan

kyk vas teen hom in sy off ice waar hy si t .

Goed so u kan vir hom sien soos hy daar s i t? --- Ja.

Kan u vir die hof beskryf hoe lyk hierdie te lefoon is d i t 'n

gewone telefoon of is d i t 'n sel foon of hoe lyk die ding? --- 'n

Gewone telefoon.

En is d i t nou 'n te lefoon waarmee 'n mens kan nou

rondloop of hoe het d i t 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 n ie so nie.

Goed nou was u bewus toe daardie foon gelui het? --- Ja

ek het gehoor die te lefoon het gelui maar hy het reeds daar

gesi t op sy stoel voor die. . . ( tussenbeide)

So hy het nou geantwoord? --- Ja toe antwoord hy

sommer onmiddel l ik .

Nou ek neem aan di t is nou besigheid die telefoon lu i op

'n gereelde basis is d i t reg so? --- Ja.

Het u v i r hom dopgehou toe hy nou besig was om te praat

of hoe het d i t gebeur? --- Nee ek het n ie v i r hom dopgehou nie.

Was u nou bewus dat hy nou besig was op die telefoon

toe di t nou gelui het? --- Ja toe die te lefoon lui toe te l hy di t

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dadel ik op en ek kan hoor wanneer hy praat.

Het hy gepraat met die persoon aan die anderkant van

die te lefoon 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 n ie.

So eint l ik het u nie geweet waaroor di t gegaan het n ie.

d i t is nou 'n lang rukkie terug om te onthou maar kan u onthou

vir hoe lank het hul le daar gesi t en gepraat voordat hy v i r u

nou geroep het? --- Di t was ek sal maar sê di t was biet j ie so

minder as vyf minute gewees.

Maar hul le het met mekaar gepraat? --- Ja hul le 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 d i t wat hy die te lefoon speaker druk toe

kan ek duidel ik d ie stem hoor aan die anderkant a l les wat d ie

een praat wat aan die anderkant is.

Nou u het gesê di t het gekl ink of die persoon op die

anderkant van die te lefoon, het hy nou vi r u gesê di t is nou

Landrino of. . .? --- Ja hy het v i r my in l ippetaal gesê toe hy vi r

my roep toe sê hy vi r my Landrino,

So hy het n ie sommer net so st i lgebly nie? --- Nee.

En soos u langs hom daar gestaan het en toe kom die dat

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almal kan maar hoor hy druk daardie knoppie. U het gesê di t

het gekl ink het asof Landr ino di t is nou die beskuldigde dat hy

nou kwaad was? --- Ja hy was hy was 'n biet j ie kwaad sy toon

het kwaad, hy was nie tevrede nie. d i t was toe dat hy verder

gegaan het met sy gesprek en dan nou vi r Fel ix gesê het ek

sal v ir jou kry.

U het gesê hy was nou kwaad? --- Ja.

Okay wat het hy onmiddel l ik gesê toe die speaker hierdie

lu idspreker nou. . .? --- Toe is d i t dat hy v i r Fel ix sê hy sal v i r

hom kry.

Is d i t wat hy gesê het? --- Ja.

Is ek reg as ek sê die, as ons u weergawe nou aanvaar

dat h ierdie dreigemente was nou eint l ik aan wie was di t gemik?

Verstaan u wat ek sê? --- Hy het , mnr. Paolo het mos nou

regui t gepraat met Fel ix so hy het presies na Fel ix toe verwys.

Hy het n ie met u gepraat n ie? --- Nee, nee hy het ook nie

geweet ek staan daar dat daar is iemand nou wat lu ister na sy

stem nie.

En u is heeltemal seker di t is wat u gehoor het? --- Ja di t

was wat ek gehoor het .

Die woorde was dat hy gaan vir hom, kan u net herhaal?

--- Ja di t is a l wat ek gehoor het. . . ( tussenbeide)

Kan u di t net herhaal? --- Ek sê na hul le geruime tyd al

so aangegaan het toe hul le die woorde gesê het v i r mekaar toe

is d i t nou wat mnr. Furtak vi r my roep wat ek daar in kom en toe

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dit is nou wat ek gehoor het .

Kan u net herhaal wat was daardie presiese woorde? ---

Dat ek sal v ir jou kry en dat ek na jou plek toe sal kom met

vuur en “ I would k i l l you” en Fel ix vra v i r hom en hoe sal jy d i t

doen en hy sê al moet ek met 'n mes na jou toe kom.

Is ek reg as ek sê u het nou net bevest ig daar is iets wat

nou aan mnr. Furtak blykbaar gemik was as so iets gesê was?

--- Ja.

Die rede hoekom ek di t vra was mnr. Furtak het ook oor

daardie insident met hierdie hof kom praat onder eed en hy

was nou herhaaldel ik gevra oor wat presies gesê was en hy

was aspres gevra oor daardie aspek en wat hy vi r d ie hof gesê

het was hy het gesê beskuldigde sal kom en hy sal kom met

vuur en 'n mes maar hy moes nou 'n af le iding maak dat

beskuldigde sou vir hom doodgemaak het . Daar is niks gesê

deur mnr. Furtak anders as wat u nou vi r d ie 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 verski l? --- Ja daar

is 'n verski l .

En is ek reg as ek sê al het so iets gebeur of het hy so

iets gesê dat di t was nie op u gemik nie di t was op mnr.

Furtak? --- Nee dit was nie op my gemik nie.

En as hy sulke woorde nie gehoor het n ie dan kon di t n ie

v ir raak getref het n ie as ek di t so mag stel? --- As wie di t nou

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nie gehoor het nie mnr. Furtak?

Ja, want d i t is e int l ik 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 di t

het gegaan oor sy vr iendin? --- Presies di t is waaroor die hele

ding gaan.

Wat was mnr. Furtak waaroor het d i t 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 d i t

gegaan? --- Wat wie nou moes doen of n ie doen nie?

Die dreigement jy weet 'n mens maak dreigemente

waaroor het d i t gegaan? --- Ek sal n ie weet n ie. hul le twee bel

v ir mekaar gereeld en dan gaan hul le aan oor die te lefoon.

Sover u kan onthou het hy nie, het hy v i r mnr. Furtak

gesê kyk ek gaan vi r jou brand of ek gaan vir jou huis brand as

jy d i t en di t en di t nie doen nie of hoe het d i t gebeur? --- Ek sal

n ie weet n ie.

Mnr. Furtak wat was sy houding u het gesê hy was so, sy

persoonl ik is, as ons di t nou so weer nag gebruik daardie

woord, 'n ontplofbare persoonl ikheid maar wat was sy houding

op daardie stadium toe hy nou besig was op die te lefoon? ---

Hy was ook kwaad gewees en hy het soos iemand, hy was

nervous hy wou net u i t d ie huis ui tkom en by die pol is iestasie

aankom om net te gaan rapporteer.

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So hy was kwaad? --- Ja hy was ook kwaad gewees hy

was 'n biet j ie nervous gewees hy wou net by die pol is ie kom.

As jy sê hy was nervous wat beteken dit? --- ek sal nou

sê omdat mnr. Paolo dan nou gesê het hy sal p lek dan nou

kom afbrand en toe sê hy voordat mnr. Paolo daar aankom al

is d i t wat ter tyd miskien nou aand of so dan moet hy di t dan al

gerapporteer het aan die pol is ie.

Wanner het mnr. Furtak vi r u ui t d ie 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 tydst ip ek neem aan u het saam met

hom gebly in 2004 dit is in Jul iemaand op daardie tyd? --- Ja

ek het twee en 'n hal f jaar v i r hom gewerk.

Twee en 'n hal f jaar daar gebly? --- Ja.

Ek is seker dat u hierdie saak met hom bespreek toe u

nou saam met hom gebly het d ie oor die woordewissel ing

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 di t k l ink v i r my dat mnr. Furtak was

baie ongelukkig oor die verhouding tussen Pat en die

beskuldigde? --- Ja di t is so Edelagbare nog altyd so.

Dankie Edelagbare geen verdere vrae nie.

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GEEN VERDERE VRAE DEUR MNR MURRAY

HERONDERVRAGING DEUR AANKLAER :

U kan nie v i r ons enige iets verte l wat gesê is voordat d ie

foon op speaker phone gesi t is n ie? --- Nee ek kan nie.

Dankie Edelagbare eint l ik het ek geen verdere vrae vi r

d ie getuie nie.

GETUIE WORD VERSKOON

AANKLAER : Edelagbare ek merk dat d i t nou 15:30 is ek weet

n ie of ons deur die volgende twee getuies sal kom nie.

COURT : Mr Murray your at t i tude?

MNR MURRAY : Your worship I th ink I would agree

unfortunately we seem to have hi t the end of the month and

then pr ivate pract ice i t means pay out t ime si r I wi l l be

grateful .

COURT : The court wi l l then at th is stage postpone the matter

for fur ther t r ia l . Are the two of you avai lable to come back to

us on Monday 29 May. Thank you so much for wait ing the

whole day I know you have been here for a long t ime now but

we are not going to f in ish wi th your evidence today due to the

lack of court t ime 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 wr i te down the

date because the pol ice is not going to give you another

subpoena or a warning for that day. So please just wr i te i t

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down when get there. 29 May thank you ladies. Mr. Paolo the

matter is then postponed to Monday 29 May for fur ther t r ia l

your bai l is extended and you are warned to be back at th is

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 Off icer:

Mr. J Redel inghuys, Prosecutor: N Breyl , On behal f of the

defence: Mr. Murray. 23 August 2006 th is case was remanded

unt i l today fore further evidence to be led by the state.

COURT : Thank you please proceed.

PROSECUTOR : The state cal ls 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

relat ionship with my sister Petronel la Mkona.

What is h is name? --- Landr ino David Paolo.

Do you know the complainant in this case Mr. Fel ix

Furtak? --- That is correct .

And how do you know Mr. Furtak? --- The complainant is

the ex-husband of my sister that is Petronel la Mkona.

Miss Mkona on Saturday 29 August an incident happened

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at your home. Can you tel l the court what happened i t was in

2005? --- On the Saturday your worship i t was in the morning

we were supposed to at tend a funeral of my hal f brother. I was

st i l l asleep i t was in the morning but when I woke up everybody

was awake. When I got out of my room to went to the f ront

room when I went to the front Fel ix and Paolo David was there

my two other s isters and Latoya. When I got in the front room

Paolo was playing with Latoya. Charmaine was chat t ing with

Fel ix. When I got there I greeted them al l . When I got there Pat

and Landrino they were about to leave when they lef t I was lef t

wi th myself , Fel ix and Charmaine we were chatt ing just

general. We were discussing about my hal f brother who just

passed away. As we were si t t ing I decided to go and prepare

coffee and I came back we cont inued to chat . Af ter an hour as

we were si t t ing then I heard a noise from the outside I was

si t t ing next to a window and then I peeped through the window

and then I saw Landrino he was having a piece of i ron he was

smashing windows of Fel ix ’s motor vehic le.

COURT : who was doing th is? --- I t was Landrino.

PROSECUTOR : I f I may ask you, you can just indicate is

Landr ino you indicated in the beginning you know the accused

as Landrino David Paolo. Do you st i l l 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 carry ing a plast ic bag wi th a

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bott le inside. As he was busy smashing the windows I not i f ied

Fel ix and Charmaine inside that the accused was smashing the

motor vehic le windows. Then Fel ix went outside. As he was

approaching the accused and the accused hi t Fel ix wi th the

iron and then Fel ix fe l l down on the ground. Fel ix fe l l down on

the ground but I th ink he tr ied to get , he also hi t him again and

then he managed to get hold of the iron and then Fel ix got hold

of the i ron and assaulted the accused but I am not certain how

many t imes did Fel ix assaul t the accused but actual ly

eventual ly fe l l down on the ground. And then the members of

the community came to there then because they were watching

the whole t ime then they started to assaul t the accused. They

t ied his hands i t is then now I went to cal l the pol ice. Then the

pol ice came others they came they phoned the emergency

people they bandage Fel ix on the head and they also treated

the accused. Then I accompanied Fel ix to the pol ice stat ion

where he went to give his statement. When we arr ived at the

pol ice stat ion we were to ld that the accused was taken to

( indist inct) .

PROSECUTOR : You also spoke of a th i rd person that he

accused was playing wi th who is that? --- I t is Latoya the

daughter of the accused.

Is i t a smal l chi ld or is i t a lready a juveni le? --- This year

she was going to be three years old.

When you f i rst entered the room and you said your two

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sisters were there as wel l as the accused and the complainant,

d id they speak to each other the accused and the complainant

Mr. Furtak? --- No they were not speaking the accused was

busy playing wi th his chi ld and the complainant was ta lk ing to,

he was speaking to my sister.

What was the accused and the complaint ’s re lat ionship

as to what you witnessed? --- They were not on good terms

your worship because Fel ix was the ex-husband of the

complainant of my sister and then accused was the boyfr iend

of my sister.

Did they say anything in front of you to each other that

made you bel ieve that they were not on good terms? --- They

were not, there were several t imes 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 quest ion when you entered you said they

did not ta lk to each other was there any vibe or any st range

th ing at that stage that you fe l t between them or were they just

s i lent? --- They were just s i t t ing there was nothing strange

your worship that I not iced they were just s i t t ing there no one

speaking to the other one.

You said basical ly af ter the accused and your s ister lef t

wi th the baby you were si t t ing at home for about an hour at

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what t ime was th is incident when you f i rst hear the noise at

what t ime was th is about? --- Approximately round about 11:00

in the morning your worship.

You ta lked about the funeral of your hal f brother was he

bur ied that morning? --- No he was not bur ied on that day he

was bur ied the next weekend.

How far was this car standing from where you were

si t t ing? --- I t was standing outside the yard next to our yard

but outside our yard.

I f you can state from where you are standing t i l l where i f

you can show us in court? --- From where I am standing your

worship up to the wal l .

COURT : About 8 metres is shown.

PROSECUTOR : Could you see the car f rom where you were

si t t ing or was there a wal l that obstructed your v iew or

anything that obstructed your v iew? --- From where I was

standing here inside our yard there is a car that is standing

there but i t is not in a working condi t ion but I was si t t ing r ight

next to the corner of that window so I could see clear ly there

was nothing that obstructed me from seeing the car.

You indicated that i t was 11:00 in the morning so I

assume the l ight was good where you were standing? --- That

is correct I could see clear ly because i t was not overcast or

ra in ing I could see clear ly i t was a normal sunshine day.

Your worship at th is stage I am going to ask guidance

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from the court because I was not in the beginning the

prosecutor i f I ask unnecessary quest ions i f i t is not in dispute

the court can just indicate to me i f i t is in order wi th the court .

COURT : Sure.

PROSECUTOR : Thank you your worship. Miss Mkona i f I may

just repeat my quest ion could you ident i fy the person who was

smashing the windows at that stage? --- That is correct ident i fy

very c lear ly.

When you saw the person smashing the window of the

vehic le did he only smash one window or more than one? ---

He smashing al l of the windows your worship and when we

went outside he was st i l l busy smashing the windows.

What k ind of car was th is that he was smashing? --- I t

was black in colour i t was a Lancier.

And to who did th is vehic le belonged to? --- Fel ix

Furtak’s car.

With what d id the accused smashed these windows? --- I t

was a piece of an i ron.

And can you indicate to the court how long was th is i ron

bar or th is i ron? --- (wi tness 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

get t ing out the door when we saw that the accused was

assaul t ing Mr. Fel ix.

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How far was the accused at that stage from the car when

he hi t 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 d id he do? --- Mr.

Furtak was busy screaming at the accused he was asking him

why he was smashing his vehic le.

You say the accused hi t Mr. Furtak wi th this i ron bar

where did he hi t h im? --- On his head.

When he hi t Mr. Furtak wi th the iron bar did Mr. Furtak

st i l l s tand or was i t at that t ime that he fe l l down? --- He fe l l

down on the ground.

Was i t only the once that he hi t h im that the accused hit

Mr. Furtak with the i ron bar or was there more than one? ---

What I am tel l ing the court is when the accused hit Mr. Furtak

he fe l l down but again when he was about to hi t h im again and

then he managed to grab the iron bar.

So as I understand you he was try ing to hi t h im again and

then the complainant took the i ron bar f rom him? --- That is

correct .

At what stage did you see the bott le in the plast ic bag?

--- At the stage I was peeping through the window the t ime he

was smashing the windows of the motor vehic le but at that

stage I d id not see i t was a bott le that was inside the plast ic.

When did you real ist hat there is a bott le in the plast ic

bag? --- Af ter the members of the community t ied his hands up

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and then this plast ic had fa l len and then I d iscovered that i t

was a bott le that was in that p last ic.

Did you open this bott le? --- I d id not open i t your

worship but when I looked at the bott le i t was something l ike

acid because the street or the road was smoking.

I f I understand you correct ly the contents of th is bot t le

was ly ing, d id the bot t le break because the contents was on

the…? --- I t was not a glass bott le your worship but i t was

something l ike a plast ic bot t le i t d id not break when i t fe l l down

and then i t spi l led.

Did Mr. Furtak have any in jur ies on him that you

wi tnessed? --- That is correct on his head.

You indicated that you went wi th him to the pol ice stat ion

to lay a charge did you also go with him for medical t reatment?

--- No, I d id not go wi th him to the doctor for the medical

t reatment he said at the pol ice stat ion that he was feel ing okay

that he was going to dr ive by himsel f to the doctor.

How many t imes did Mr. Furtak or you indicated that Mr.

Furtak also hi t the complainant af ter he took out the i ron bar or

took the i ron bar form him you indicated that you do not know

how many t imes he hi t the accused? --- I can not recal l how

many t imes Mr. Furtak hi t the accused because at that stage i t

was when I was busy looking for the numbers for the pol ice.

And the community you said soon after he took the i ron

bar form the accused the community basical ly arrested the

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accused? --- That is correct .

Do you know why they did not arrest Mr. Furtak? --- I t

was not the f i rst t ime that the accused did something…

( intervent ion)

I am going to stop you there so at that stage the

community that arrested Mr. Paolo did they see him do you

th ink they also saw him hi t t ing this car? --- That is correct so

they did see.

Did you personal ly have any problems with the accused?

--- The f i rst t ime I met the accused I d id not have any problems

wi th him…(intervent ion)

Can I stop you there, is there any reason why the

accused can say that you today come and fa lsely impl icate

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 th ink of any

reason that Mr. Furtak on that specif ic morning or day did he

give the accused any reason to smash his car windows or h i t

h im wi th the i ron bar? --- No.

Thank you your worship I have no further quest ions.

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NO FURTHER QUESTIONS BY PROSECUTOR

MR. MURRAY : Your worship at th is stage I am going to request

and adjournment the court gave me permission to ( indist inct) i f

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 i t was never provided to me. I do have a statement of

th is part icular witness but i t does not relate to the proceedings

before court at the present t ime. I f I may just state your

worship a misunderstanding might have ar isen I asked my

learned fr iend i f there was only one statement and she agreed

that there was. I perhaps was assuming that she was referr ing

the one that I do have to hand which is nothing to do with the

present test imony before court . So i f I could possibly ask for

an adjournment to c lear that aspect up obviously I need to

consul t wi th the accused.

PROSECUTOR : That is indeed a fact my learned col league 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 i f i t is in

one of the other dockets that is not re levant to this case that

he had. I do not know why come my learned col league did not

receive th is statement f rom, when he received the rest of the

statements. I a lso indicated to him that there is a second

wi tness that the state, Margaret that the state is not going to

cal l he indicated that he did not f ind her, i f I am not mistaken

he said he did not have her statement ei ther. To th is ef fect ja i t

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must be a misunderstanding the state wi l l not have an

object ion i f there is a short adjournment i f i t p leases the court .

COURT ADJOURNS

COURT RESUMES

AANKLAER : Dankie edelagbare die verdediging mnr Murray het

aangedui hy wi l u toespreek.

MR. MURRAY : Your worship I have been able to go through the

statement that was provided for me gone through al l the

var ious i tems. Unfortunately I had just been able to consult

wi th the accused now. The court wi l l note i t was a bona f ide

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 t ime I do not wish to

inconvenience the wi tness before court . I th ink she had

perhaps trauma as i t is but ethical ly speaking your worship I

would need to consul t with the accused part icular ly i f i t

becomes necessary that I place him in the dock. There

necessary need to be a lot of things I have to in ef fect be his

spokesman and put th ings to the wi tness. Obviously i t would

( indist inct) for me to do so and get fu l l inst ruct ions to be able

to do so. So the request is for a postponement at th is stage. I

am ful ly aware of the long t ime that this case has been on the

court ro l l but unfortunately I am in this ethical di lemma.

PROSECUTOR : Thank you your worship the state has part in

negl igence in th is matter as that we did not provide the

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statement to the defence as my col league indicated i t is a bona

f ide mistake. The evidence that the wi tness has given i t seems

corroborated to a certa in extent the evidence that has already

been led. But i t is also t rue that the accused must have the

r ight to a fa i r t r ia l and I understand my col league’s s i tuat ion so

the state cannot have an object ion at th is stage i f the court wi l l

a l low a remand.

COURT : I t is indeed unfortunate that the relevant

documentat ion was not provided t imeously to the defence

although i t is t rue that not much of the evidence of the current

wi tness should have come as a major surpr ise today. I t is of f

course also true that the defence should put dur ing cross-

examinat ion any version of the accused to this state wi tness

and th is wi tness clear ly is in a di f ferent category as Mr. Furtak

was as she is a s ister of the relevant wi tness that we heard of

ear l ier Petronel la. The court is then wi l l ing to grant a

postponement to af ford t ime to the defence to fu l ly consul t wi th

the accused regarding th is witness’s posit ion and evidence.

Miss Mkona that unfortunately means that you wi l l have to

come back to us unfortunately at a later date and for th is waste

of your t ime I do apologise. The court wi l l then grant the

postponement as requested.

The matter is then postponed to the 6 t h of next month

Wednesday 6 September for fur ther t r ia l . You wi l l then at this

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stage remain in custody unt i l 6 September. Miss Mkona you

are then warned please as state witness to be back wi th us

Wednesday 6 September 09:00 that morning please again.

Thank you so much for understanding.

COURT ADJOURNS

COURT RESUMES 6 SEPTEMBER 2006

PROSECUTOR : I t is today 6 September 2006 Case Number:

SH/B75/2005, Presiding Off icer: Mr. J Redel inghuys,

Prosecutor: N Breyl, On behal f of the Defence: Mr. Murray.

Interpreter: Mr. Da Costa.

Your worship on a previous occasion the case was

remanded unt i l today for Miss Lindiwe Mkona to be cross-

examined af ter she test i f ied as the court p leases.

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 relat ionship wi th

your s ister is that correct? --- That is correct .

You also indicated that you knew Mr. Fel ix Furtak the

complainant in th is matter? --- That is correct.

Miss Mkona wi l l I be correct in saying that the

relat ionship between Mr. Furtak and the accused before court

was not part icular ly good? --- That is correct.

Would I be correct in saying in part icular the relat ionship

was not good because there was a dispute over a chi ld is that

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correct? --- I t is not part icular ly the chi ld but a lso the

marr iage.

When you say the marr iage was i t Mr. Furtak was

unhappy about the break up of the marr iage what was the

si tuat ion? --- That is correct because he was not happy about

the marr iage that was cal led off .

Now you conf i rm that you have test i f ied in court that you

wee a wi tness to the incident I just want to conf i rm wi th you

can you remember on which date i t happened? --- I am not

certa in about the date your worship but I can recal l i t 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 fami ly 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 invi ted to the funeral on that

day how did i t come about? Mr. Furtak was he invi ted to the

funeral or was he informed that there was no funeral that

part icular day? --- He was informed that the funeral was

postponed but he came there knowing that we lost our fami ly

member that is the reason why he came to our house.

You test i f ied that you were al legedly a wi tness to the

incident that happened on that part icular day am I correct? ---

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That is correct.

And would you agree wi th me that i f I understand your

test imony on that part icular day you said that there were other

people present at the same t ime as wel l? --- I agree your

worship.

Al l r ight now i f I can just ask you when the arrest took

place of the accused were you present or can you fo l low up

then? Perhaps I should just assist you there you have given an

out l ine of the incident as i t a l legedly happened, I am perhaps

star ing at the other end when things had f inal ised, were you

present when the accused was arrested? --- I was present your

worship.

And were there pol ice off icers present there? --- That is

correct the pol ice were present.

As an important witness did you speak to the pol ice

off icer volunteer ing any information r anything of that nature?

--- That is correct I d id informed the pol ice about the incident

about what took place.

And did the pol iceman take down statements? --- Yes

that is correct.

Now I do intend handing you a statement at this stage but

i f you can just have a look at the statement and i f you could

perhaps just ident i fy whether i t is your s ignature there on the

statement? --- I cannot see my signature here your worship.

Just look at the bottom of the page there? that is a

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photostat copy but I assume i t is the same as the one in the

docket. Does that look l ike the statement that you gave to the

pol iceman? --- Do you want me to read i t?

No I am going to refer to the detai l perhaps, you have

indicated that is your s ignature there? --- That is correct i t is

my statement.

The point that I am get t ing at just in br ief you wi l l not ice

that on that statement i t was only taken on the 26 August 2005

is that correct? --- On the day of the incident the ci ty pol ice

came there and then I gave my statement to a pol ice lady who

was present there. Then the pol ice came again for a second

t ime and then I gave another statement.

So the ini t ia l statement that you gave was that to the ci ty

pol ice? --- Yes.

And the statement that you have looked at now was that

to the South Afr ican Pol ice? --- That is correct .

Now I not ice in the statement also that you were not too

certa in of the date when th is incident happened. Were you able

to see your c i ty pol ice statement to refresh your memory or I

not ice f rom this part icular statement that you were also

uncertain as you are today of the date on which th is incident

a l legedly happened. Did you have a look at your c i ty pol ice

statement or d id you try and f ind 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 hospi ta l so I

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did not see i f the date was correct I mean to the pol ice stat ion.

I do know i f you qui te understood my quest ion correct ly.

What I am saying is you said you gave a statement to the ci ty

pol ice on the day when the incident happened at the scene am

I correct? --- Yes I d id.

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 a l l

your facts to go and have a look to make sure which date i t

was or perhaps f ind out f rom the day of the funeral of your

re lat ive, i t is something one does not forget , to get the correct

date? --- I was not certa in about the date as i t was now some

t ime now that they cal l me again on the second t ime.

During th is t ime did you, obviously the incident happened

did you have contact with Mr. Fel ix Furtak? --- That is correct.

Did he come to the actual funeral the next weekend and

did he come and vis i t you at other stages? --- He did not come

to the funeral as he was st i l l under pains or he was st i l l in jured

and he was scared to come but we had contacted

te lephonical ly.

Would I be correct in saying that you perhaps discussed

th is incident that happened wi th regard to the accused on th is

day. Did you speak to Mr. Furtak about i t d id he ask you about

what was going on and did you speak to him about i t? --- Yes

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we did discuss i t 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 pol ice the South Afr ican Pol ice was th is

incident was i t st i l l c lear in your mind exact ly what had

happened on that day? --- I t was st i l l c lear in my mind your

worship.

I f 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 pol ice and the statement that

is avai lable to us today. On that part icular day you stated that

you had been asleep and that you woke up and you went to

make cof fee am I correct? --- That is correct.

Who was al l present? --- I t was mysel f my elder s ister

Charmaine, Petronel la i t is also my sister, Fel ix, the accused

and a chi ld.

Is that Letoya you are speaking about? --- Yes that was

the chi ld I am referr ing to.

Now were there any other fami ly members present or

were those the only people present? --- At that stage i t was

only those people that I have just ment ioned.

Can you remember what t ime was th is? --- Approximately

round about 11:00 that morning.

Is that the t ime you got up and made coffee or what t ime

did you actual ly s i t down? --- When I woke up i t was round

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about 10:00 but when I went to s i t wi th the other people i t was

about 11:00. i f I may just correct something your worship?

When I woke up to greet them i t was round about 10:00 and

when they lef t that is the accused wi th the chi ldren i t was

round about 11:00.

Did you actual ly s i t wi th them dur ing th is t ime between

10:00 and 11:00? --- Al l of them?

The people you have indicated now? --- That is correct .

And the chi ld Letoya? --- The chi ld was present.

Now you indicated to the court on the previous occasion

the si tuat ion was normal that there was no problems whi lst you

were si t t ing 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

indicat ion that something was going to happen? --- No your

worship.

Now this where you were si t t ing is i t a smal l room big

room can you give an indicat ion how big is th is room where

you are si t t ing? --- I t is a smal l house the size of the houses in

Guguletu they are very smal l houses so i t was a smal l room.

Can you just give an indicat ion how far perhaps you can

just point out something in the court so that we can see what

the size of i t is? --- From where the prosecutor is s i t t ing up to

the front here th is table.

COURT : Three to four metres and the width? --- From the

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bench up to this table your worship.

About two metres wide.

MR. MURRAY : And the windows are there windows in th is

room? --- That is correct.

How many windows are there? --- Where we were si t t ing

there was only one window.

Only the one window and you indicated that you were

looking out of th is window? --- That is correct.

Now you ment ioned that the accused and your late s ister

and the chi ld lef t am I correct? --- That is correct.

Did they great you when they lef t d id they say where they

were going what was happening? --- I t is only Petronel la who

ment ioned that they are leaving now and she was leaving with

the accused.

So your s ister 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 carry ing the chi ld.

The reason why I am asking you this is that my

instruct ions from the accused dare that he had actual ly come

to fetch the chi ld and he found the chi ld in the car in Furtak’s

car. - -- The accused did come to fetch the chi ld and his

gir l f r iend that is my sister but when I woke up the chi ld was not

in the car they were al l s i t t ing in the room.

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Did you actual ly not iced at any stage that the chid was in

the car before you knew that something was going to happen

the incident that you have to ld the court that you wi tnessed. Do

you know that the chi ld was in the car at any stage? --- No

your worship.

Once you sister had basical ly said that she was leaving

and you say that she lef t with the accused and the chi ld the

si tuat ion is st i l l normal at that stage? --- That is correct.

Where was Mr. Furtak at that stage? --- He was st i l l

s i t t ing wi th us inside the house.

You mentioned that i t is a very smal l room and that he

was si t t ing there wi th you, were you si t t ing talk ing to the other

people in the house in the room with you? --- That is correct he

was ta lk ing.

I see and then what drove your at tent ion 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 d id you see the accused doing i t what…? --- I f i rst 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 si t t ing

i t 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 i t took you perhaps a

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few seconds you just had to turn and look? --- That is correct .

Mr. Furtak was st i l l s i t t ing wi th you then? --- Yes.

Did you, were you aware of what Mr. Furtak what d id he

do at that stage? --- We were st i l l busy ta lk ing and then I draw

their at tent ion when I looked through the window and then I

shouted your worship.

So there were other people s i t t ing 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 tel l the people

what was going on how did i t happen? --- That is correct I

turned around and I to ld them what was taking place.

So you in fact is the person that ra ised the alarm i f I can

put i t that way? --- That is correct.

And you are certa in of that you say that these facts were

very c lear in your brain? --- I am certain.

The reason I ask you that when Mr. Furtak came to test i fy

in court he stated that i t was Mr. Boet ie Mkona that in fact

warned them of what was going on? --- Mr. Mkona, Boet ie was

outside I was inside I a lerted them.

I wi l l come to that point later on but would you agree wi th

me that i f he came to te l l the court that i t is Boet ie Mkona who

gave him the warning that perhaps i t 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 d id they do now? --- That is correct he

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stood up and he went outside.

Is th is now Furtak? --- That is correct.

And yoursel f what d id you do? --- I a lso went af ter h im

and al l of us went af ter him want ing to know what was taking

place or what was going on.

You al l go out the door to go after Mr. Furtak? --- That is

correct .

Now you go outside did you in fact see Mr. Boet ie Mkona

outside there? --- That is correct I saw him he was outside with

his f r iend.

Is he your brother? --- Yes he is my brother.

Does he l ive in the same house or does he l ive

elsewhere? --- He l ives in the same house.

Now Mr. Furtak goes outside what was the, d id 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 actual ly doing can you just

descr ibe to the court precisely what he was doing? --- He was

busy smashing the windows of the motor vehic le.

Can you just descr ibe to the court how was he doing th is

was th is the front windows the back windows where was he…?

--- He was moving around the vehic le smashing al l of the

windows.

And th is is whi le you were al l out, as you came outside

am I correct? --- That is correct.

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It is my instruct ions that he accused wi l l deny that in fact

that he did anything of that nature. --- He did smash the

windows.

Was your s ister or the chi ld what had happened to them?

Or perhaps i f I can ask you i f I can just ask you on that point

you said that the accused and your s ister and the chi ld

basical ly bade you farewel l and they lef t the house. How long

after they had lef t d id th is incident happen? --- Approximately

round about 30 to 45 minutes.

Now my instruct ions are that your s ister a lso had two

chi ldren is that correct? --- Yes that is correct .

Latoya and the infant? --- I t is Latoya and the elder

brother that is Thando.

Where was Thando at that stage? --- He was present at

home because he came with Fel ix.

Are you saying that Thando came wi th Fel ix on that day

we are talk ing now on 29 January? --- That is correct he came

wi th Fel ix 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 Fel ix f rom Woodstock and

then he went to play wi th his f r iend.

That is at your home in Guguletu? --- Yes.

And when this incident was happening did you see where

Thando was? --- There was no t ime for me to see i f Thando

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was around the t ime of the incident but I know he was also

around in the area in Guguletu.

Just for the record my instruct ions are that i t in fact was

Latoya who was the chi ld who was si t t ing in the car at that

t ime? --- Latoya lef t with Petronel la and then he lef t to Phi l ippi .

Am I correct in saying that a l l you, you have stated now

when I asked you that quest ion that the t ime that lapsed

between your s ister and Latoya leaving the house where there

was an hal f an hour. Did you go and check to see that they in

fact lef t the vic in i ty of your house outside? --- I d id not go

outside to see i f they were st i l l in the vic in i ty but they did come

back where there is a t ime now when the accused was

arrested.

So would I be correct in saying that you could not state i t

as a fact that Letoya in fact had gone back home to Phi l ippi or

whatever? --- I can say that your worship that they lef t for

Phi l ippi because they were contacted te lephonical ly and that is

when they came back.

Did you do th is yoursel f? --- No i t is not me your worship.

So i t is not something that you have seen yoursel f or that

you have done yoursel f 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

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her the numbers and then she phoned.

Now you go outside and you say that the accused was

busy smashing Mr. Furtak’s vehic le? --- That is correct .

What happened then I mean did anybody say anything

what was happening? --- People did scream when Fel ix went

outside we went also the accused started to assault h im.

Did Fel ix go, when you al l came out how many people

came out of the house can you remember was i t everybody

si t t ing in the lounge or just you and Fel ix? --- Fel ix was the

f i rst to lef t the house and then I fo l lowed mysel f and my sister

Charmaine.

Did you fo l low short ly behind Fel ix or how did i t happen?

--- Short ly af ter Fel ix lef t the house and we also fo l lowed.

So as I understand i t you walked basical ly Fel ix leading

you al l went out is that r ight? --- That is correct .

When you came out d id the accused was he st i l l busy

smashing the windows? --- That is correct.

Did anybody shout at him at that stage to stop him before

you actual ly got to where he was? --- People were standing

outside but they were people I do not know they were shout ing

as he was busy smashing the windows and he was holding

something in his hand but I did not know what i t was at that

stage.

So there were other people also f rom the area also

standing there? --- Yes.

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You mentioned I stand under correct ion I think you said

the car was approximately f ive metres away from the house?

Perhaps you can just g ive an indicat ion when you come out of

the f ront 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 s i t t ing.

I t is a very short d istance away? --- That is correct.

And you ment ioned that Fel ix then approached the

accused he was busy smashing the car? --- Yes.

Did you fo l low on short ly behind Fel ix when he

approached the accused or did you stay at the door what d id

you do? --- Al l of us went out as we were fo l lowing Fel ix.

And you ment ioned that the accused then threatened

Fel ix? --- He did not threaten the complainant he assaulted the

complainant.

I see, did Fel ix approach the accused or how did i t

happen how did they meet up where you are al leging that the

accused assaul ted the complainant? --- The complainant, how

Fel ix did approach the accused he was screaming want ing to

know why he was smashing his car.

And then where was Fel ix then assaul ted? --- At the back

of the vehic le.

I see, so you are certa in that is exact ly what happened

that is very c lear in your brain that is what the si tuat ion was?

--- I am certain.

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And then the f ight happened there at the car okay am I

correct? --- Yes.

And you ment ioned that the accused at one stage also

was overwhelmed and he fe l l is that correct? --- That is

correct .

And you are certa in that is correct the incident as i t took

place? --- I am certain.

Because the reason I asked you that again Mr. Furtak

when he came and test i f ied here he stated that the accused

ran away and he had to chase the accused. --- Af ter Fel ix had

fa l l down on the ground and then he managed to get hold of

the i ron bar that is when the accused got a chance to run away

and then the complainant chased after h im and then he started

to assaul t h im.

I am not c lear on you there because that is why I

speci f ical ly asked you is th is where the accused fe l l and you

agreed that is where the accused fe l l he was assaulted there?

--- What happened is that the complainant fe l l down on the

ground and when the accused was about to hi t h im for the

second t ime 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 assaul ted the accused.

Because I put i t to you that the words that Mr. Furtak

ment ioned in court here i f my notes are correct he said I ran

out and saw the accused running away. This would indicate

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this happened before there was any contact between him and

Mr. Furtak? --- … ( intervent ion)

PROSECUTOR : Your worship i f I can just ask the defence to

also indicate as my notes indicate he said he did run away two

metres about so i t is two metres maybe just a distance also

wi th that as the court p leases.

MR. MURRAY : I f I can just state the indicat ion that he has

given that I ran out I saw the accused running away. Now you

have given the indicat ion that the assaul t whatever happened,

happened next to the car. That they already had contact that

you say the accused assaul ted Mr. Furtak and that the accused

then was able to get up and as you said he ran away? --- That

is correct .

I put i t to you that the picture that Mr. Furtak in test imony

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 assaul t that took place by the accused on

Mr. Furtak or v ice versa? --- What I am tel l ing the court is what

I wi tnessed what the complainant is te l l ing I do not know.

Now i f we can just go further you said that on your

version that the accused assaul ted Mr. Furtak who in i t iated the

assaul t? --- The accused assaul ted the complainant your

worship.

Can you just descr ibe to the court when you say he

assaul ted him how did i t happen how far was Mr. Furtak from

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him what happened? --- There were very c lose to each other

that is how the accused assaulted the complainant .

Were they busy arguing or do you know what happened

how did i t happen? --- The one who was ta lk ing was the

complainant he was asking why he was doing, why he was

smashing the windows of h is motor vehic le the accused was

not responding.

Was the accused st i l l smashing the car or what was he

doing? --- No he was not he was going to the complainant with

a small p iece of i ron bar.

What did the complainant do did he keep cont inue

walking up to the accused or what happened? --- That is

correct he was cont inuing going to the accused.

And the accused did he have the iron bar with him or

what happened? --- That is correct.

Because my instruct ions i t has also been put to Mr.

Furtak was that the accused was placed in a posi t ion where he

had to defend himsel f against Mr. Furtak he wi l l say that Mr.

Furtak was in fact the one who launched the at tack on him? ---

Accused was the one who had the i ron bar and he was

smashing the windows when the complainant approached him

he was the one who assaul ted the complainant .

Did you see how he assaul ted him where was the

complainant assaulted? --- I t was next to the motor vehic le.

I am speaking about where did, where was the

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complainant assaulted you ment ioned that the accused

assaul ted the complainant wi th an i ron bar where how did that

happen can you just descr ibe that? --- He f i rst assaulted the

complainant on the head and the complainant fel l down on the

ground.

And the other people standing around there what d id they

do? I am speaking now once the complainant had fa l len. ---

The t ime the complainant fe l l down on the ground people were

screaming because they were afraid of the i ron bar that the

accused had on him and th is container that he also had in the

other hand.

What container was th is? --- I t was a plast ic container

that was inside the plast ic bag and when i t fel l down we

discovered i t acid.

Did he have th is plast ic in his hand whi lst he was

assaul t ing Mr. Furtak the complainant? --- That is correct .

At what stage did th is stuf f fa l l on the ground? --- The

plast ic fel l down at th is t ime the complainant was also

assaul t ing the accused that is when the container fe l l down on

the ground.

You are sure that th is container was not on the ground

already? --- That is correct I am certain.

Do you know what happened to th is container af ter th is

incident? --- I pointed the container to the pol ice your worship

and then the pol ice took i t .

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I see did you in fact see Boet ie doing th is or were you

to ld that Boet ie did this? --- I was the one who pointed the

bot t le out to the pol ice.

The reason why I am asking you that is i t is once again

my instruct ions that the accused wi l l deny that he had any acid

wi th him as you al lege? --- He is not te l l ing the truth your

worship.

You ment ioned that Furtak fe l l i f I understand you

correct ly then he was able to, Furtak was then able to get the

iron bar? --- That is correct the complainant did fa l l down on

the ground and when the accused was about to hi t h im for the

second t ime and then he got hold of the iron bar.

So i f I understand your evidence correct ly you said when

the accused was hi t t ing him the second t ime did he only hi t

Furtak once? --- I th ink so i t was once but because when he

was about to hi t him again and the complainant managed to

get hold of the iron bar.

You ment ion you th ink so did he in fact hi t him once or

are you just assuming? --- I t happened so fast I th ink the

accused assaul ted the complainant once because when the

complainant approached the accused and then he assaul ted

him and he fe l l down on the ground.

And then Mr. Furtak then in turn assaul ted the accuse

dam I correct? --- That is correct that is when the members of

the community also helped the complainant to assaul t the

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accused.

My instruct ions are that you are correct on that point in

that the accused wi l l say that he in fact was assaulted by Mr.

Furtak in try ing to defend himsel f and that he exper ience being

assaul ted he is uncertain by somebody from the back as wel l

and that is when he fe l l onto the ground? --- The complainant

assaul ted the accused and that is when the other members of

the community came and then they assaul ted him after that

they t ied his hands up.

Where was he t ied up where he fe l l? --- That is correct.

Once again I would assume that was in the close vic in i ty

of the car? --- I t was a few metres from the vehic le your

worship.

Now Mr. Furtak what happened to him then? --- I went to

phone the pol ice your worship when the ci ty pol ice arr ive they

were treated that is complainant and the accused and af ter

that I took him to the pol ice stat ion.

You have ment ioned th is plast ic bott le and that the

accused had th is i ron bar is that correct? --- Yes.

Was there anything else conf iscated from the accused?

--- Nothing else was conf iscated 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

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going to hurt h im that is when I decided to go and contact the

pol ice.

Because my instruct ions are in fact that the accused was

in fact stabbed whi lst th is tussle was taking place did you

wi tness that? --- No I d id not witness.

And then you ment ioned that you gave out the cel l phone

to phone Petronel la is that correct? --- That is correct.

Do you remember what her number is? --- No I cannot

recal l the number.

I wi l l te l l you why I am stat ing that i t is a lso again my

instruct ions that the accused wi l l say that they only had one

cel l phone in fact the cel l phone that they as a couple had the

accused had on him and in fact i t is the cel l phone…? --- That

is correct they did have one cel l phone but i t was in

Petronel la ’s possession.

My instruct ions are that the accused had the cel l phone

and he wi l l say that the cel l phone fe l l whi lst Furtak was busy

assaul t ing him Furtak then picked i t 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 vehic le of the complainant .

When did Pat arr ive on the scene was this whi lst the f ight

was going on? --- Petronel la came at the t ime the accused and

the complainant were treated by the emergency people.

How long was that af ter the assault? --- Approximately an

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hour or less than that.

Was i t c loser to an hour when you say an hour or less

there where the f ight is what were they doing for an hour? ---

Are you referr ing now to the… ( intervent ion)

As a start ing point you ment ioned i f I understand the

assaul t i tsel f the accused has said that he was assaulted f i rst

you say that Furtak assaul ted him f i rst when that assault take

place how long did that take was this over in a few minutes?

They hi t each other and the accused was then assaul ted by the

community and everybody else standing around there how long

did that incident take place? --- I wi l l say that i t took round

about 30 minutes.

Do you understand what I am saying you ay i t took 30

minutes. You have ment ioned that the accused hi t Mr. Furtak

wi th the iron bar r ight . Mr. Furtak then gets hold of the i ron bar

and assaulted the accused and then he goes down. How long

did that take? --- I thought the quest ions was that the whole

incident including the assault by members of the community…

( intervent ion)

No I am just talk ing about the assaul t i tsel f? --- I t did not

take a lot of t ime.

A few seconds a few minutes? --- Round about 10 or 5

minutes.

And then you say the pol ice came after an hour? --- I do

not say the pol ice came after an hour I said I went to cal l the

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pol ice round about 10:00 because they were not far f rom there.

I do not know i f I heard you correct ly what were you

referr ing to that took an hour? --- I thought you asked when

Petronel la came back the t ime when she arr ived.

When did the ambulance arr ive or was there an

ambulance or how did the part ies go they were both taken for

medical t reatment you say how long af ter this incident d id that

happen? --- I t was not an ambulance i t was th is red medical

rescue motor vehic les i t d id not take a long t ime.

And both part ies 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 pol ice stat ion to lay a charge.

Did you in fact go wi th him? --- Yes I did.

How long were you at the pol ice stat ion? --- 30 minutes.

And then? --- He la id a charge af ter he had given his

statement he was to ld to go to the doctor.

And then did he do that? --- Yes he did.

And did you go wi th him? --- No I d id not.

I see what did you do then? --- I went back home your

worship… ( intervent ion)

PROSECUTOR : Your worship i f my learned col league maybe

just indicate where he is going with th is quest ion seeing that i t

is af ter the incident took place and what the complainant d id.

MR. MURRAY : I wi l l come to the point short ly your worship.

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Perhaps i t is not that important a point but you ment ioned that

your s ister came back came to the scene after an hour. - -- I

wi l l say that is correct that i t 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 t ime they went to the

pol ice stat ion they were already there.

So did you see your s ister come onto the scene? --- Yes I

d id wi th the chi ld also.

I have no further quest ions.

NO FURTHER QUESTIONS BY MR. MURRAY

RE-EXAMIONATION BY PROSECUTOR :

This Mr. Boet ie you indicated i t is your brother, d id you

see, sorry he was not in the house I gather f rom your

test imony but d id you see him at the incident where the car

was smashed did you see him after that there? --- That is

correct the t ime the accused was busy smashing the

complainant ‘s motor vehic le I saw him he was standing outside

wi th his f r iends.

Is i t possible that he also screamed at the accused or do

you not know? --- I do not know whether he did scream or

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shout because there were other people standing there.

Just one more quest ion, f rom your evidence i t sounds Mr.

Furtak was assaul ted by the accused and then he took off the

bar and then you said you think he hi t h im 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 assaul ted the accused

because they were also afraid of the iron bar that the accused

had in his hand and the plast ic container that he had.

Did you say he only, the complainant only hi t the accused

once because the community intervened or because he only

wanted to hi t him once? --- I cannot say what the complainant

was th inking whether he wanted to hi t him once or not .

You say you are not sure about the date that i t happened

but you were sure i t was on the Saturday that i t was supposed

to be your brother ’s funeral? --- Yes I am not sure about the

date but i t was on a Saturday.

Thank you your worship I do not have any further

quest ions.

NO FURTHER QUESTIONS BY PROSECUTOR

WITNES EXCUSED

PROSECUTOR : The state again request i t seems i t is common

cause that the quest ions that was put to the complainant

h imsel f that the accused did hi t h im wi th an i ron bar however i t

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seems sel f defence. The state is going to request i f there is

going to be any object ion i f the state hands up the J88 as

evidence and the contents thereof as the court pleases.

MR. MURRAY : Yes your worship there wi l l be an object ion.

COURT : Are you saying that the doctor should test i fy?

MR. MURRAY : That is correct .

PROSECUTOR : Your worship seeing the defence is going to

object I d id inform the invest igat ing off icer to get hold of the

doctor and he made a statement to me that he cannot f ind the

doctor and he is not working at th is hospi ta l anymore. So the

state do not want to waste the court ’s t ime any longer wi th

evidence that probably wi l l not ( indist inct) by the court

because of the absence of such a witness. The state wi l l thus

at this stage close i ts case.

STATE CASE

COURT : Thank you Mr. Murray.

MR. MURRAY : As i t pleases the court your worship I a lso

conf irm that I have had a discussion wi th my learned fr iend

your worship I indicated I spoke to the accused I have a let ter

her form Pol lsmoor which indicated his medical status.

I have the accused’s permission to give i t to the court I

request I receive i t back I need i t I should ask that the court

take note of i t . I t is my instruct ions to cal l the accused as a

wi tness but he has advised me that in v iew of the condi t ion

apparent ly he is not gett ing the required medicat ion at

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Pollsmoor and he has stated that he does not actual ly feel up

to i t to be able to stand in the stand today.

He have conceded that we help away the witness who

has just test i f ied and the request is for a postponement that

the accused wi l l hopeful ly regain a bi t of his heal th and be in a

state to come under cross-examinat ion as I am sure he wi l l be

once we put h im in the stand. I do have a let ter here i f I may

just hand i t up i t indicates the accused’s medical status.

COURT : Thank you to respect the accused’s pr ivacy the court

wi l l not put the contents of the let ter on record. Mr. Murray wi l l

you be able to address the issue about medicat ion in the next

few days?

MR. MURRAY : Yes your worship I wi l l perhaps take i t up wi th

Pol lsmoor. I understand there is another legal representat ive

who is a lso involved wi th the accused and perhaps take i t up

wi th her as wel l to see what steps can be taken and hopeful ly

the appropr iate ( indist inct) .

COURT : Mr. Breyl anything from your s ide?

PROSECUTOR : Your worship the state is going to request that

the court marks th is a f inal remand for the accused as the

state is at this stage not prejudiced and had i ts wi tnesses

came to court . But on the next occasion i t can be marked f inal

as the court p leases.

COURT : In l ight of the request that the accused is current ly

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MR MURRAY ACCUSED

not medial ly wel l and f i t to test i fy the court is wi l l ing to grant a

postponement at this stage for the defence case.

COURT ADJOURNS

COURT RESUMES 23 OCTOBER 2006

AANKLAER : Di t is vandag 23 Oktober 2006 saaknommer

SH/B75/2005 Voorsi t tende Beampte: Mnr J Redel inghuys,

Aanklaer: Mnr Breyl , Namens die Verdediging: Mnd Murray. Die

saak is ui tgestel na vandag toe vi r verdere verhoor. Die staat

het reeds op 'n vor ige geleentheid sy saak geslui t en di t is dan

vandag vi r d ie verdediging om te getuig.

MR. MURRAY : As i t p leases the court your worship I speak

Engl ish for the convenience of the interpreter your worship i f I

may cal l the accused to the wi tness 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 th is t ime aware and you

pleaded not gui l ty to a charge of at tempted murder on one

Fel ix Furtak also one of mal ic ious in jury to property and also

one of int imidat ion in terms of the act or a l ternat ive one of

assaul t . 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 conf i rm

wi th you, you have also heard by the wi tnesses that the

al leged int imidat ion took place on 24 July 2004 and that the

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MR MURRAY ACCUSED

alleged attempted murder then took place on 9 January 2005.

before we get to the al leged events your version of the al leged

events of what happened on that day could you indicate to the

court the main complainant in th is matter i f I can put i t that

way Mr. Fel ix Furtak how did you come to know Mr. Fel ix

Furtak ? --- I knew Furtak because he used to come to my wife,

to my gir l f r iend’s place as a f r iend. Af ter some months or a

year they got marr ied.

Now you conf i rm that Mr. Furtak was marr ied and I

understand that at a later stage he divorced your gi r l f r iend and

that is Miss Petronel la Mkona is that correct? --- That is

correct .

Can you indicate to the court when as I understand i t

Petronel la then came back to a relat ionship wi th you, can you

just indicate to the court when did Petronel la come back to you

when she lef t Fel ix Furtak? --- When Fel ix and Petronel la got

marr ied after three months Petronel la came back to me.

Can you give an indicat ion to the court the year when did

th is happen? --- 2003 ye.

2003, so am I correct in saying that there has been an

al legat ion that you int imidated Mr. Fel ix Furtak and th is took

place on 24 July 2004 so am I correct in saying that at the t ime

of the al legat ion of int imidat ion that Petronel la had already

returned to your home is that correct? --- That is correct.

Now I understand there was also further a chi ld born of

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the relat ionship that you had with Petronel la Mkona is that

correct? --- That is correct.

Now i f you can as we have discussed very br ief ly just

out l ine to the court what Mr. Furtak’s at t i tude towards this

chi ld was and what in fact happened? --- When they got

marr ied Petronel la she had a boy 8 years old so she took the

gir l Furtak’s house and wi th the divorce she lef t the boy behind

at Furtak’s house. Petronel la came back to me and I asked

Petronel la where is the boy Petronel la said no I lef t the boy

behind at Fel ix house and we went to Fel ix ’s house and we

took the boy.

Can you just indicate to the court who was the father the

bio logical father of the boy and the gir l? --- … ( intervent ion)

PROSECUTOR : Your worship before the accused answer th is

quest ion I was not present when Mr. Furtak test i f ied i t 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 relat ionship between Mr. Furtak and the

son of Miss Mkona and the accused etcetera. I do not know i f

Mr. Furtak test i f ied about i t or i t was only put to him in cross-

examinat ion. I do not see that i t is of re levance as to why there

was a quarrel or what happened on this speci f ic day as the

court p leases.

MR. MURRAY : As i t p leases the court your worship the

defence is just basical ly t ry ing to give a background to the

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events that we wi l l go into detai l on wi th regards to the main

charges the accused is facing. I can perhaps cut i t a bi t shorter

i f you can just conf irm, i f we can just perhaps just cut i t a lot

shorter then. Mr. Paolo your relat ionship with Mr. Furtak could

you just te l l the court was i t 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 gir l to the social worker.

Am I correct in saying also very br ief ly that there were

other court cases that happened? I do not want to hear detai l

about them just that there were problems is that correct? ---

That is correct.

Now i f we can just move forward now you have heard that

there is a charge of int imidat ion against you i f we can just deal

wi th that incident that al legedly 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

Petronel la were dr inking a lot and we did not have ( indist inct)

we did not have money to look after the chi ldren that is when

the problem started in 2004.

Now you heard the evidence i f we can just deal wi th the

evidence as we are deal ing wi th i t on 24 July 2004 was

Petronel la Mkona was she l iv ing wi th you at that stage? ---

That is correct.

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Now you heard that Mr. Furtak and also Miss Mol ly

Al l ison also came to test i fy, they al leged that you phoned Mr.

Furtak on 24 July 2004 and that you threatened him over the

te lephone and that you made certain threats that you were

going to assaul t h im and you threatened to k i l l h im and that

you were going to burn his house down. --- That is not t rue

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

Al l ison heard a voice which she said she could recognise as

you are you saying that is fa lse? --- I did not cal l Furtak to te l l

h im I am going to k i l l you or do something wrong to you I d id

make a phone cal l to Furtak.

COURT : You did not cal l at a l l or you did not threaten him

dur ing the cal l? --- I did cal l him but I did not say I was going

to k i l l him I am going to shoot h im or to beat him.

Now when you say you did cal l him that is why I put i t to

you that on 24 July 2004 did you in fact cal l h im? --- I knew

that I d id cal l h im but on the 14 t h I d id not cal l h im to say I am

going to k i l l you I d id cal l h im on another day to tel l h im to

leave my fami ly a lone I am able to raise my kids and to look

after my gir l f r iend.

I see, now Mr. Furtak has specif ical ly said to court in the

phone cal ls that you phoned him and you threatened him. Did

you in fact threaten his l i fe or to burn his house down. The

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phone cal ls 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 h is property i f

he did not leave you alone? --- That is not so your worship.

Now i f 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 part icular Miss Lindiwe Mkona Petronel la

Mkona’s s ister. Now, can you tel l 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 Petronel la ’s hose your

worship.

What was the purpose of your v is i t to Petronel la’s house?

--- I went there to Petronel la and my baby to take them back

home because they were l iv ing in Guguletu I was l iv ing in

Phi l ippi .

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 d id you expect to f ind him there? --- When I

got there in Guguletu I saw Fel ix car was standing i t was

parked outside and my daughter she was also inside Fel ix ’s

car.

What happened then? --- When I got there when I saw my

daughter inside Fel ix ’s car I was not happy because I knew

that me and Fel ix were not in a good relat ionship and I opened

the door I took my daughter and banged the door. When I

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banged the door I saw Fel ix running next to me. Fel ix cal led

me stupid why are you banging my door. I told Fel ix no I took

my daughter because my daughter is not a l lowed next to you

and then Fel ix started insul ted me and he smacked me. When

he smacked me then I was cross I took a piece of stone and I

h i t h im wi th a piece of stone your worship.

When Fel ix h i t you can you just descr ibe to the court why

did you not just run away? --- I d id not want to run because I

am a man and I was protect ing mysel f and protect ing my

daughter.

You heard further that Fel ix said that you hi t h im with an

iron bar can you just explain to court what happened then? --- I

d id not h i t him wi th an i ron bar I only used a stone and that

stone did not go to Fel ix i t went r ight to his car.

COURT : Are you saying the stone did not h i t h im? --- That is

correct .

MR. MURRAY : When you say the stone hi t h is car can you just

indicate to the court where i t h i t the car d id you see where i t

h i t? --- The passenger window.

You heard that Mr. Fel ix Furtak al leged that you hi t h im

wi th an i ron bar did you in fact hi t h im wi th an i ron 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 Fel ix came to me and we hauled each other and we started

f ight ing I d id not have the i ron bar.

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And then what happened? --- Af ter that when we hauled

each other started f ight ing each other then I saw people came

next to me with a iron rod and they started assaul t ing me and

the people of Lindiwe’s house also they came out al l of them

they were f ight ing wi th me and I was t ied I lost my conscience

at that t ime. When I was t ied I do not know what happened to

me when I real ised I was already in hospi ta l even the t ime

when the ambulance arr ived there and the pol ice arr ived there

I a l ready lost my conscience. I did not know what happened to

me on that t ime.

Now you heard the evidence of Mr. Furtak and you also

heard the evidence of Miss Lindiwe Mkona. Mr. Furtak

ment ioned that he tr ied to chase you at one stage is th is

correct posi t ioned or what happened? --- Yes when I threw the

stone and I t r ied to run away and I fel l and in fact there were

three of them and they grabbed me and they started hi t t ing 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 ment ioned that there was a

bot t le that contained acid or they thought i t was acid that you

brought a long what is the si tuat ion there? --- That is correct I

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had a container but in that container was not acid i t was Handy

Andy in fact to use for my to i let .

Now is this something that you have just remembered

now why was i t not ment ioned ear l ier on? I t has never been

ment ioned unt i l today that you had th is Handy Andy wi th you is

th is something that you have just remembered in the course of

t ime? --- No I d id not remember that I see that things for a long

t ime I had i t in my head.

On this part icular day did you wish to k i l l Mr. Furtak did

you have any intent ion to do so or to injure him in any way? ---

On that day I d id not even know we were going to meet me and

Furtak at my gir l f r iend’s house because my intent ion was to go

and fetch my chi ld and my gir l f r iend. My intent ion was not to

go and ki l l Furtak because I d id not know Furtak would be

there and my intent ion was never to k i l l Furtak in my l i fe.

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 v i r 'n verdaging vir teetyd.

HOF : Die hof sal v ir 'n paar minute verdaag vi r d ie teepouse.

HOF VERDAAG

HOF HERVAT

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LANDRINO DAVID PAOLO : s.u.o. ( through interpreter)

CROSS-EXAMINATION BY PROSECUTOR :

Mr. Paolo do you know Mrs Mol ly Al l ison? I t was the lady

that test i f ied about the happenings on 24 July. - -- Not real ly

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 thi rd person would come and

say that you indeed threatened Mr. Furtak on this day over the

te lephone? --- I do not know because on that t ime me and my

wi fe ’s fami ly was not in a good relat ion.

Mrs Mol ly Al l ison indicated that she heard your voice

over the te lephone you sounded cross and that you threatened

Mr. Furtak that you wi l l burn down his house? --- No that is not

t rue.

Why would she come and say a th ing l ike that? --- I do

not know I do not know why she said that.

You can th ink of no reason that she wi l l come and test i fy

under fa lse or fa lsely test i fy against you about th is incident?

--- I t can be because that one she was Fel ix ’s g ir l f r iend.

Mr. Paolo you indicated that you did phone Mr. Furtak on

th is day why did you phone him? --- I d id phone Furtak on that

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day because my wi fe she was not at home she was working

and then Furtak took the pol ice to my wi fe ’s work, my

gir l f r iend’s work. … ( intervent ion)

COURT : No I do not understand can you just repeat that? ---

On that day my wife she was working nightshi f t and I was

looking after the baby. My wife is supposed to come the same

night she did not come back and the fol lowing day the morning

my gir l f r iend’s family they came to me they to ld me your

gir l f r iend she was arrested because Fel ix took the pol ice

because my gir l f r iend did not pay the maintenance money for

the boy.

And then you were upset wi th him and you phoned him?

--- I d id phone him to leave us alone because we do not have

any problem between my gir l f r iend’s fami ly and Fel ix your

worship.

I f I understand you, you were cross with him and then

you phoned him to te l l h im to leave you alone? --- I was not

cross I only phoned him to te l l h im to leave us alone because

there is no one who gave you the boy to look af ter do not ask

us the maintenance money leave us alone. I was not cross on

that day.

But even Mrs Al l ison test i f ied that you were cross she

heard your voice over the phone and the t reats that you made

this is according to Mr. Furtak as wel l that you said? --- No I

was not cross on that day.,

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If you were not cross why phone him to te l l h im to leave

you alone. Usual ly someone just phones someone else to te l l

them leave us alone when you are cross wi th that person? --- I

was not cross because I did not know why he took my wi fe to

the pol ice stat ion I only phoned him and he explained i t to me

over the phone that I took your wife to the pol ice because she

did not pay the maintenance money. I said look here br ing 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 th is assaul t took place is that correct? --- That is

correct .

You indicated that you went to Miss. Mkona’s place to get

your gi r l f r iend and your son to take them home is that correct?

--- That is correct.

At what t ime did you go there? --- I t was 10:00 10:30 in

the morning.

And did you go into the house? --- Not your worship.

I t 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 re lat ionship with Lindiwe Mkona that is

Petronel la ’s s ister? How was the relat ionship between you and

Lindiwe? --- I and my gir l f r iend’s fami ly were not in a good

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relat ionship.

Because Lindiwe said or to ld the court that, that morning

when she woke up inside the house you were si t t ing as wel l as

Mr. Furtak and Petronel la as wel l? --- That is not t rue your

worship.

She also test i f ied that you were ta lk ing for a long t ime

before you and Petronel la and the chi ld lef t? --- I did not enter

the house because I was not a l lowed they did not a l low me to

enter the house because my gir l f r iend’s fami ly they did not

want me.

She said that you lef t around 11:00? --- Not your worship.

That is about the same t ime that you, you said you got

there about 10:30 she said you lef t at about 11:00 so i t is more

or less the same t ime? --- 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

Fel ix ’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.

Al l r ight, you said that you test i f ied that you did not run

away because you are a man and you wanted to protect your

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daughter. Is that correct? --- That is correct.

Why did your daughter need protect ion? --- Because

when Fel ix came to assaul t me I was holding my baby your

worship.

But Fel ix was not assaul t ing your daughter you said he

assaul ted you? --- That is correct he assaulted me.

So she did not need protect ion i t 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 Fel ix form you? You can show

basical ly in the court how far. - - - 5 metres.

Can you show i t 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 si r you said

Mr. Furtak smacked you and then you picked up a stone is that

how i t happened? --- When he smacked me I went back and I

went back I and my baby because I was feel ing dizzy and I

took the stone.

How big was th is stone that you picked up? --- I t was a

piece of a br ick.

A piece of a br ick an hal f a br ick? --- A quarter.

A quarter a l l r ight and what did you want to do with th is

br ick? --- When I t r ied to go back and I saw Fel ix coming i t is

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when I took the stone and I threw i t to Fel ix and take i t he

would run away.

So you wanted to throw the br ick at , you threw the br ick

at Fel ix? --- That is correct.

To hi t h im? --- No he skipped the stone and i t went

through he passenger’s window.

Because he ducked i f I understand you correct ly th is

br ick went through the window? --- That is correct.

And was i t only the one window that was broken because

of this br ick? --- That is correct.

Okay when he ducked and th is br ick went through the

window what happened then? --- When I started to run because

I was very dizzy and I fel l .

Because of th is s lap you fe l t d izzy and you wanted to run

away am I correct? --- That is correct .

And did you run, d id you start running away? --- Yes I

started running away and I fe l l and there were three of them

they came.

Did you fa int or d id you fe l l? --- I fe l l .

Why did you fa l l? --- I do not know I touched something

then I fel l .

Al l r ight and where did these three people come from? ---

They were next to the car.

Okay so you were st i l l next to the car? --- A l i t t le b i t far

f rom the car.

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All r ight and i f I understand you correct ly they then

assaul ted you is that correct? --- That is correct .

So f i rst i t is Fel ix that came and assaulted you and then

these three people after you defended yoursel f you ran away

three other people came and assault you? --- When I fe l l and

Fel ix came on top of me and we started f ight ing when I was

started f ight ing Fel ix and three people came to help Fel ix and

they start f ight ing with me.

Okay you indicated an iron what did he ment ion you said

something about an i ron is that when Fel ix f ight wi th you, you

had an i ron? --- No I nothing of an iron.

Okay you fe l l and Fel ix came and you st ruggled and then

three other people came? --- That is correct .

But why did they assaul t you? --- As I say because I and

my gir l f r iend’s family we are not in a good relat ionship they did

not l ike me. When they saw there was a problem they came to

help Fel ix.

But these three people who were they are they f rom the

fami ly or were they f rom the community? --- I do not know then

i t was the f i rst t ime to see them.

So i t was not fami ly? --- I do not know because i t was the

f i rst t ime I saw those people.

Why would people that you do not know you do not even

know i f they are family because i t seems they are not fami ly

why would they come and assaul t you? --- Because they were

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together wi th Fel ix.

They what? --- There were together with Fel ix.

They were wi th Fel ix. But when Fel ix came there the f i rst

t ime he was alone is that correct? --- That is correct .

You indicated you had Handy Andy with you is that

correct a bott le of Handy Andy? --- That is correct.

What did you want to do wi th th is Handy Andy? --- I got i t

because on my way to go to see my gir l f r iend and I saw the

people in the street they were sel l ing Handy Andy and I bought

that Handy Andy on my way to go and fetch my wi fe and to go

and clean my toi let .

But why did you not put th is to the wi tnesses when they

test i f ied that they found a bott le with you wi th an unknown

content. Why did you not say to them but i t was a bot t le of

Handy Andy? --- When?

It as never put to any of the wi tnesses who were

test i fy ing here that you had a bott le wi th you. They indicated i t

was substance that was see through that you could see

through? --- I am the one who bought that bot t le i t was not acid

i t was Handy Andy because I wanted to c lean my toi let and on

that day they did not g ive me quest ions to ask they did not g ive

me a chance to ask them.

Mr. Furtak test i f ied that he was si t t ing inside wi th Lindiwe

Mkona when he heard the smashing of windows and Lindiwe

Mkona or they heard the sound and Lindiwe Mkona watched

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and she saw you start smashing the windows of Fel ix ’s car wi th

an iron bar. - -- That is not t rue I d id not have the iron bar only

I know I break his window when I threw the stone to Fel ix 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 i t at Fel ix and that is what

smashed the windows i t was never put to him or to any of the

wi tnesses? --- As I am saying the f ight ing I and Fel ix

everybody was on his s ide.

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? --- I f them they did not

say that because they are looking for a reason.

I t seems that you took your at torney also by surpr ise

put t ing that to the court in your test imony in chief now. I t was

never put to the witnesses. Why did you not te l l h im to put i t to

them that there was a window broken but i t was because of a

rock that you threw at Fel ix? --- I thought maybe when I come

here by the witness stand box here then I wi l l explain to the

court myself .

Further both the witnesses Lindiwe and Fel ix test i f ied to

the effect that you then assaul ted when Fel ix came to the car

you attacked him with the iron bar and that you assaulted him

wi th the iron bar on the head? --- I d id not assaul t Fel ix with an

iron bar he is the who come, I h i t Fel ix wi th a stone and I t r ied

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to run away because Fel ix was behind me fol lowing me I d id

not h i t h im wi th an i ron bar.

But did you hit Fel ix with a stone now or did you not? ---

That is correct I h i t h im with a stone but not an i ron bar.

So basical ly i f I understand you correct ly you threw a

stone at h im and he ducked and i t went through the window

and you had another stone wi th you and you hi t h im wi th a

stone? --- There was only one stone when I h i t h im wi th the

stone i t went through the window and I ran away.

So wi th the one stone that you threw at h im you hit him

and i t went through the window? --- The stone i t d id not go

straight to Fel ix i t went stra ight to the window.

But then you did not hi t Fel ix wi th the stone you threw i t

at h im but you did not hi t him? --- That is correct.

But the wi tnesses or Lindiwe Mkona even test i f ied that

af ter you hi t Mr. Furtak with th is i ron bar he took i t form you

and he hi t you back wi th i t and he assaul ted you. Is that

correct? --- I only when I threw the stone i t went through the

car and I t r ied to run away and I fe l l and Fel ix came on op of

me and the other three guys they came and they were f ight ing

wi th me but I d id not use the i ron bar.

Did Fel ix have any in jur ies on him? --- I real ly do not

know because when they assaul ted me I am the one I lost

control and I was surpr ised I was already in hospita l .

I t was put that you deny that you had any acid wi th you

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on that day. I t was put by your at torney that you wi l l deny that

you had any acid wi th you is that correct? --- I knew that I wi l l

come to say in court that i t was not acid.

Mr. Paolo when these people you have now fel l down and

Mr. Furtak had at tacked you again how did you defend yoursel f

then? --- On that t ime when Furtak come on top of me and the

other three people I d id not have a chance to defend mysel f .

You did not defend yoursel f? --- Not your worship.

Because i t was put that the accused said that he was

assaul ted by the complainant and you defended yourself . So

how did you defend yoursel f? --- I f I defended myself on that

day then the ambulance was not supposed to come and take

me to hospital . I d id not defend myself because I have already

lost control your worship.

Okay what did they do to you? Did Fel ix at tack you and

the other three came wi th what happened then? --- They

assaul ted me and they stabbed me also and they t ied my

hands and my legs also.

Why was that not put to the complainant, you never put i t

to him that you were stabbed. I t was only when Mrs Mkona

came and test i f ied, L indiwe Mkona came that you said that you

wi l l come and say that you were stabbed. I t was never put in

cross-examinat ion to Mr. Furtak? --- Because I knew that I got

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a medical report on that day that ( indist inct) is my witness.

Mr. Paolo I put i t to you on that speci f ic day the 29 t h you

were there at Mrs Mkona’s place and that you lef t wi th

Petronel la Mkona and that you came back and then damaged

Mr. Fel ix ’s car by smashing al l the windows and not only the

passenger window as you indicated and you smashed those

windows wi th an i ron bar. - -- That is not t rue because I went

there only once to take my baby and my gir l f r iend and I d id not

return there when I lef t there I was already in hospi ta l your

worship.

When you threw the br ick at Mr. Furtak you could have

foreseen that i f he ducked that the br ick might h i t his window is

that correct? --- That is correct.

And Mr. Paolo I put i t to you that at the stage that you

threw this br ick on your version Mr. Furtak was not at tacking

you, you threw the br ick at h im whi le he was standing there in

front of his car. - -- When Furtak came to assaul t me i t just

make me ( indist inct) and I t r ied 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 a lso put i t to you that when Mr. Furtak came

there on the scene when you smashed his car ’ windows you

took that i ron bar and you assaul ted him as Mrs Mkona also

test i f ied that she saw you hi t t ing him with th is i ron bar over the

head. --- That is not t rue.

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And that you would have kept on doing so i f i t was not for

h im that took th is f rom you th is i ron bar? --- That is not t rue

your worship.

Why would al l these people come and te l l l ies in court

that you broke his windows and assaul ted him? --- As I said me

and my gir l f r iend’s fami ly were not in a good relat ionship. Even

my wi fe before to marry Fel ix my gir l f r iend’s family forced my

gir l f r iend to marry Fel ix.

I put i t to you that these people form the community

assisted Mr. Furtak not because they were on his s ide but

because you assaul ted him and that is why they stopped you.

--- Those people assaulted me wi th Furtak they are not form

the community al l the people f rom the community I know them

those people i t was the f i rst t ime for me to see them.

You know al l the people of the community but you do not

know your gi r l f r iend’s fami ly that is strange? --- I know some of

them but not a l l of them.

I put i t to you si r that you are ly ing to the court . - - - I am

not ly ing because al l my family, my gir l f r iend’s family I do not

know al l of them. I know some of them.

Why did you even go there that day i f you know that your

re lat ionship with the fami ly was not good st i l l you decided to

go to th is house? --- I wished to go there because they to ld me

i f I want to see my gir l f r iend or my baby I have to go fetch

them and take them away but not s i t there in the house but I

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am al lowed to go in to take my gir l f r iend and my baby but not

s i t there.

Why do you not te l l your at torney to put i t to him that

they would not al low you in the house? You were not in the

house because of that and then he could have put i t to the

wi tnesses they could have answered on that? --- As I have said

I d id not te l l my lawyer but I knew that I want to ( indist inct) in

f ront of the court .

After you, what was your plan after you fetched your

daughter out of the car or af ter you took your daughter out of

Mr. Fel ix ’s car what were your movements then or what did you

want to do? --- When I took my chi ld to Fel ix car my plan was

to send someone to cal l my gir l f r iend and to leave.

Oh so you would not go to the house yoursel f and fetch

your gi r l f r iend you would have just sent someone to cal l her?

--- I d id not want to go in on that day because I knew Fel ix was

inside and then i f I and Fel ix see each other you always hear

the bad word.

Why did you then bother to take your gi r l then out of the

car, Fel ix ’s car? I f you knew she was inside Fel ix ’s car why did

you take her out there? --- I took my chi ld inside Fel ix ’s car

because I did not l ike my chi ld to be inside Fel ix ’s car.

What do you mean by you banged his door? --- When I

took my chi ld out of Fel ix ’s car and I banged the door that t ime

I th ink Fel ix hear the bang and he came and he was cross.

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Why did you bang i t why did you not just c lose i t? --- He

was not wi th my permission but I was not happy when I met

daughter inside Fel ix ’s car. Because the f i rst boy was the

problem and the second one was t ry ing to be a problem again

but I was not happy on that day when I saw my daughter in

Fel ix ’s car.

So you were cross on that day? --- I was not cross but

when I saw my baby inside Fel ix ’s car I was upset your

worship.

Your worship I have no further quest ions.

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 br ick as you indicated did you

intend to hi t h is car or did you intend to hi t 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 i t happen? --- I t

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.

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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 wi th my

learned fr iend and then…

COURT : The court wi l l 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 wi th my learned

fr iend. As i t seems to be the case i t does not seem a complete

document. I d iscussed wi th my learned fr iend obviously i t wi l l

be a mater of argument as wel l but i t does not seem to be in

any dispute between the state wi tnesses and the accused that

he was assaulted at some stage and obviously taken off to

hospi ta l but I am asked to just hand th is up just to, the

relevant J88 just for the purposes of complet ion of the record

and my instruct ions are then also to c lose the case for the

defence.

COURT : Mr. Breyl the contents of th is document is i t admit ted?

PROSECUTOR : Your worship the state does not have a

problem as to the contents as far as the accused did have

certain in jur ies at a certain stage so to that ef fect the state

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does not have any object ion. I t 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 object ion

your worship.

COURT : Thank the court wi l l then receive by agreement the

medical cert i f icate 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 wi th

three main counts, count 1 is one of at tempted murder. The

al legat ion is that on 29 January 2005 at Guguletu he at tempted

to k i l l Fel ix Furtak by hi t t ing him wi th an iron bar.

Count 2 is one of mal ic ious injury to property wi th the

al legat ion that a lso on 29 January 2005 at Guguletu he

intent ional ly damaged Fel ix Furtak’s motor vehic le. Then main

count on count is one of contravent ion of sect ion 1 (1) A of act

72 of 1982 int imidat ion wi th the al legat ion that the accused

threatened Fel ix Furtak on 24 July 2004 at Woodstock and

intended or compel l ing him to abstain f rom doing something to

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wit re lease Miss Pat Mkona.

Count 3 has an al ternat ive to i t being common assault

wi th the al legat ion that he threatened to k i l l Fel ix Furtak on 24

July. The accused has been legal ly represented by Mr. Murray

throughout the t r ia l and pleaded not gui l ty to al l three counts.

The state led the evidence of Mr. Furtak and two other

wi tnesses whi le the accused test i f ied in his own defence.

I am not going to summarise the evidence ful ly. To

understand the proceedings better i t is necessary to place on

record that the accused was a boyfr iend of a Miss Petronel la

Mkona. They were in a relat ionship at some stage. Mr. Fel ix

Furtak our complainant then marr ied Miss Petronel la Mkona.

They got d ivorced just over a year later. No chi ldren were born

from that marr iage. Miss Petronel la Mkona had a chi ld at that

stage.

After that stage Miss Petronel la Mkona had a relat ionship

wi th the accused again. I t is the accused’s case or part of h is

case that a chi ld was born out of that re lat ionship. I wi l l refer

to that chi ld as the younger chi ld in th is judgment. I t is

common cause that there had been i l l feel ings between the

accused and Mr. Furtak for many months or years.

With that as background Mr. Furtak test i f ied that the

accused cal led him at home on 24 July 2004. At that stage Mr.

Furtak was already divorced from Miss Petronel la Mkona.

Furtak said that the accused to ld him that he must not mess

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around with his gi r l f r iend referr ing to Petronel la or he that is

the accused wi l l come to his house wi th f i re and a kni fe.

Furtak explained that he knew that the accused meant

that he wi l l set his property al ight or do bodi ly harm to him.

Furtak said that he real ised that he would need a wi tness af ter

hear ing th is threat and he cal led Miss Mol ly Al l ison to the

phone to l is ten to this conversat ion.

Miss Al l ison was working for Mr. Furtak at that stage.

When Miss Al l ison arr ived 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 Al l ison then

went to pol ice stat ion to report this.

Regarding the other incident he test i f ied that on 31

January 2005 he went to the Mkona’s house. A fami ly member

of the Mkona’s has died and i t was supposed to be his funeral

on that day. When he got to the Mkona’s home he heard that

the funeral was cancel led or postponed should be a better

term.

He said that he decided to stay and ta lk with the people

present. He said that the accused who was present in the

house asked Miss Petronel la Mkona to accompany him out.

The two of them with the younger chi ld then lef t . Furtak

remained inside the house with Petronel la ’s s ister Miss

Lindiwe Mkona one of the state wi tnesses and other people.

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Some t ime later he heard somebody shout ing Fel ix your

car. He was later to ld or he was under the impression that i t

was Mr. Boet ie Mkona who cal led him or drew his at tent ion to

what was going on outside. When he lef t 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 tr ied to chase the accused to press charges

against h im as al l the windows of his car were smashed. While

chasing the accused he fe l t a big blow to use the term use din

court on his head and Furtak fe l l to the ground.

He managed to get onto his feet again and get hold of the

accused. Regarding th is blow to his head he test i f ied that he

later saw that the accused had a steel i ron bar in his hand. He

cannot recal l how many t imes he was hi t on the head but he

had a f ive cent imetre lacerat ion on his head. Furtak had no

weapons on him he test i f ied.

He said the accused also had a bott le of acid or petrol

and a kni fe wi th him. Furtak test i f ied that h is car was a 1969

imported Lancier the only one of i ts k ind in South Afr ica.

Furtak restores vintage vehicle. He says these parts are not

readi ly avai lable in South Afr ica and at the t ime when he

test i f ied he has only replaced the side windows the front and

rear windows were not replaced yet . He est imated the damage

to be between R12 000,00 and R13 000,00.

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He test i f ies that the accused was also at tacked on the

scene. Furtak went to the hospi ta l af ter the incident and the

in jury or lacerat ion on his head was st i tched. He also had an

in jury to the nose and i t was later found that h is r ib was

broken.

During cross-examinat ion i t became clear that the older

chi ld was l iv ing with Furtak at that stage. I t is c lear or i t was

test i f ied that Furtak got custody of Petronel la ’s older chi ld and

that he wanted maintenance for th is chi ld f rom Petronel la. I t

was put to him that he had Petronel la incarcerated for not

paying maintenance. He said that he knew that there was a

warrant for her arrest author ised by a magistrate as she did

not appear in court for the maintenance inquiry.

I t was put to him that the accused had no reason to

contact h im to which Furtak repl ied that i f Petronel la paid him

maintenance the accused would have had less money in his

pocket being her boyfr iend at that stage. Regarding Miss Mol ly

Al l ison she test i f ied dur ing cross-examinat ion that she knew

the accused for years as she has l ived wi th Petronel la ’s family

and has known the accused as Petronel la’s boyfr iend.

I t was put to Furtak dur ing cross-examinat ion that the

accused did not make these threats on the phone. I t was added

that he might have spoken f igurat ively and that he did cal l

Furtak on that day because Petronel la had been locked up.

Furtak denied that.

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Regarding the exact words that were uttered by the

accused Furtak said that he cannot remember the detai l as he

did not make notes and did not ref resh his memory from those

notes. Regarding the vehic le incident Furtak test i f ied that he

was at that stage st i l l the custodian of the older chi ld (at the

t ime when he gave evidence in court he did not have custody

of this chi ld anymore).

I t was put to him that the accused wi l l deny enter ing the

Mkona’s house at a l l that day. I t was put that he only went to

the house to col lect Petronel la and the younger chi ld and that

he did cal l them and that they al l then lef t . I t was also put to

Furtak that Furtak wanted to take the accused’s chi ld that is

the younger chi ld away from him. Furtak denied that .

Regarding the broken windows Furtak test i f ied dur ing

cross-examinat ion that he did not see the accused breaking or

smashing the car windows. He surmised that i t had to be the

accused as the accused had an i ron bar in his hand and was

running away from the car.

According to him the pol ice did conf iscate this i ron bar.

He indicates in court that the i ron bar was approximately a half

a metre long. He only saw this i ron 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.

I t became clear dur ing cross-examinat ion that there was

a major problem with the pol ice statements that was furnished

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to the defence. I t seems as i f somebody has forged Furtak’s

s ignature on th is statement and that Furtak has typed out his

own statement and signed his own statement which was given

to the pol ice which was not the same statement that was

provided to the defence from the docket .

Asked how i t was possible for the accused to have hit

Furtak wi thout Furtak seeing i t . Furtak concedes that there is a

problem. He says that i t is possible that the accused could

have turned around and hi t h im but he is only speculat ing he

did not see that or cannot remember that.

He cannot remember or he does not know when the

accused hi t h im on his chest but h is r ib was in fact broken. I t

was put to Furtak that when the accused arr ived at the

Mkona’s home the younger chi ld was si t t ing in Furtak’s car and

that the accused was unhappy wi th that fact.

Furtak says that that incident happened two weeks ear l ier

and that the accused is confusing these two incidents. I t is put

to Furtak that Furtak approached the accused af ter the

accused took the chi ld from the car. Furtak then grabbed the

accused by the throat and assaul ted him and that the accused

then in his own defence had to hi t Furtak wi th a bott le to get

away. Furtak denies al l th is.

The second state wi tness was Miss Mol ly Al l ison. She

conf irms that she was working for Furtak at that stage and

corroborates Furtak regarding th is phone al l and contents of

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the phone cal l . According to her the accused said I wi l l get you

I wi l l come to your place wi th f i re or I wi l l k i l l you.

She conf i rms that she and Furtak then went to the pol ice.

Regarding her re lat ionship wi th the accused she said she

never had problems with the accused. Regarding her

re lat ionship with Furtak she said that had a problem with

Furtak as Furtak threw her out of h is home af ter some incident.

At her t ime of g iv ing evidence she was not cross wi th Furtak

anymore. Sur ing cross-examinat ion she conceded being a

fr iend of Furtak at the stage the cal l was made.

The last state witness was a sister of Miss Petronel la

Mkona Miss Lindiwe Mkona. Miss Lindiwe Mkona test i f ied that

i t was indeed supposed to be the funeral of their hal f brother

on that day in January. According to her Furtak the accused

her other s isters and other people were al l present that

morning at their home.

The accused and Petronel la lef t at some stage and

approximately an hour later Miss Lindiwe Mkona heard a noise

from outside. As she was si t t ing next to a big window she

could see outside and saw that i t was the accused wi th a piece

of i ron smashing Furtak’s car. According to her the accused

also had a plast ic bag with a bot t le inside wi th him.

According to her Furtak then went outside as he

approached the accused the accused hi t Furtak wi th th is i ron

bar. Furtak then fe l l down. The accused wanted to hi t h im

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again and Furtak then got hold of th is i ron bar. Furtak then

assaul ted the accused. She later went wi th Furtak to the pol ice

stat ion.

She corroborates Furtak on the issue that a l l the windows

of the car were smashed. Al though Furtak had a head in jury he

was able to dr ive himsel f to the doctor. Dur ing cross-

examinat ion i t became clear that th is witness too made more

than one pol ice statement. I t seems as i f she has made a

statement to the ci ty pol ice the day of the incident and that

another statement was taken on 26 August 2005 by the SAP.

She test i f ied that Furtak did not at tend the funeral which

took place the next week as he was st i l l in pain. I t was put to

her as wel l that the accused only came there to fetch the chi ld

which was there and that he then found the chi ld in Furtak’s

car. According to her the chi ld was indeed in the room and not

outside.

I t was put to her that Furtak test i f ied that i t was her

brother Boet ie Mkona who drew attent ion to the fact that

something wrong was happening outside. She says that Furtak

was making a mistake as she raised alarm. I t was put to her

that Furtak test i f ied that the accused was running away from

the vehic le when Furtak was chasing him.

She says that af ter Furtak fel l the accused did get a

chance to run away and was then chased. I t was put to her that

the accused would deny having a container wi th him. The state

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indicated that they had a J88 form regarding the in jur ies of

Furtak avai lable but that the doctor who compiled this report

was not working at that hospita l anymore.

Mr. Murray did not concede to the contents of th is report

and the report was then not handed up. That in a nutshel l was

the state’s case. The accused then test i f ied. I t is c lear f rom his

evidence that there were indeed problems between him and

Furtak in the past.

According to him Furtak la id a charge against h im and

Petronel la at the social worker regarding the younger chi ld. He

test i f ied that he did cal l Furtak but d id not threaten him. He

only told Furtak to leave and his family a lone referr ing to

Petronel la and their chi ld.

Regarding the incident on 29 January he test i f ied that he

went to the Mkona’s home this morning. The reason was only

to take Petronel la and the younger chi ld home to Phi l ippi

where he stays. He then indeed took Petronel la home. He saw

or when he arr ived there he saw the daughter in the car of

Furtak and he took the chi ld out of the vehic le.

Furtak must have seen that and cal led the accused and

smacked the accused. He test i f ies that he ten took a piece of

stone and threw i t at the complainant. i t seems as i f the stone

or a quarter of a br ick did not hi t Furtak but h i t a window of the

vehic le.

He and Furtak then started f ight ing. He denies using an

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iron bar. He says he was then assaul ted by people who came

as wel l and lost his consciousness. He test i f ied that he did

have a container wi th him containing a to i let c leaner.

Dur ing cross-examinat ion he says that the Mkonas did

not a l low him or would not al low him inside their home at that

stage as Petronel la ’s family d id not l ike him. He picked up th is

stone or part of a br ick af ter he was slapped. He was dizzy at

that stage and just took the younger chi ld out of the car.

According to him only the one window of the vehic le was

broken. The court received by agreement a medical cert i f icate

relat ing to the injur ies of the accused on record as EXHIBIT A.

the doctor examining the accused l isted several injur ies to the

accused body and concluded by saying that th is was consistent

wi th an assault . That in a nutshel l is the evidence before court .

The prosecutor argues for a convict ion on al l three

counts whi le Mr. Murray argues for an acqui t tal on al l three

counts point ing out that there are several issues that were not

deal t wi th proper ly in th is case. Mr. Murray concedes that the

accused’s evidence was not sat isfactory in al l aspects.

He draws the court ’s at tent ion to the fact that no medical

evidence was led regarding Furtak’s injur ies and descr ibes the

evidence as cloudy. Regarding the evidence f rom state s ide i t

is indeed true that the evidence is not crystal c lear. Mr. Murray

is correct in his submission that certain aspects could indeed

be descr ibed as cloudy.

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Even from the relat ive short summary of the evidence i t

should be clear that there are indeed aspects which are not

perfect ly c lear. I t would indeed be a wonderful day in our

cr iminal courts i f wi tnesses were able to give crystal c lear

evidence in al l aspects in al l cases.

But because they very of ten test i fy months or even years

after events and because pol ice statements are often of a very

poor qual i ty that very seldom happens in our courts. Regarding

the evidence of Mr. Furtak I a lso agree wi th the submission by

Mr. Murray that Mr. Furtak was indeed a man of many words.

One has to understand the relat ionship between him and

the accused and i t is abundant ly c lear that there had been i l l

feel ings between the two of them for a very long t ime. I t is

c lear that Furtak would have taken any opportuni ty to paint a

bleak a picture regarding the accused as possible as he clear ly

d id not l ike the accused.

I do however th ink that Furtak was an honest witness.

The clearest example of th is was his evidence that he actual ly

d id not see the at tack on him this day. I f Furtak was wi l l ing to

l ie under oath because he did not l ike the accused i t would

have been very s imple and easy for h im to have said that he

actual ly saw the accused turning around and hi t t ing him wi th

th is i ron bar.

Furtak did not do that and concedes that in his own

evidence creates a problem i f he did not see th is at tack by

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somebody who he was chasing. Some of the cr i t ic ism that was

level led against the state case can easi ly be explained.

For instance regarding the whole issue on whether i t was

Boet ie Mkona or Miss Lindiwe Mkona who drew the at tent ion of

Furtak to the happenings outside. I t is c lear 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 clear ly a traumat ic incident for everybody

involved.

Not only was i t supposed to be the funeral of a family

member of the Mkonas but was there a f ight outside their

house of some incident. As to detai l of who was where and at

what t ime one should take into account that the at tent ion of for

instance Miss Lindiwe Mkona would certain ly not have been on

who was where at what t ime but take into account that her

mind would probably have been somewhere else as i t was

supposed to be the funeral of her hal f brother that day.

I t is indeed of s igni f icance that Furtak was corroborated

in most of the al legat ions that he made against the accused.

Regarding the possible problem regarding the issue whether

Furtak was chasing the accused before the assaul t i f compared

to Lindiwe’s evidence that the assaul t took place at the vehic le

we have to take into account that even on Lindiwe’s evidence

the attack took place very c lose to the motor vehic le.

According to Furtak also close to the motor vehic le he

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was talk ing 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 ser ious problems in the state

case. They could hardly be descr ibed as mater ia l

contradict ions.

This is the type of di f ference in evidence that one would

expect when witnesses test i fy several months or even years

after an incident . Especial ly when there was not a proper

pol ice statement taken immediately f rom 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 mater ia l ly by Miss Al l ison

regarding the phone cal l on 24 July 2004. I agree that Miss

Al l ison cannot be descr ibed as a completely object ive or

independent witness as she has worked for Furtak at that

stage.

But i t was signi f icant to hear that she lef t the employment

of Mr. Furtak under negat ive circumstances. I f ind i t very hard

to bel ieve that af ter she was put out of Furtak’s house wi th her

chi ld that she would st i l l come and l ie under oath for Furtak or

on Furtak’s behalf in th is matter.

She clear ly had no problems wi th the accused before and

there would be no reason for her to come and l ie under oath. I

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have also f ind that the probabi l i t ies are in favour of the state

case and against the accused in th is regard.

Given the fact that there were in fact problems between

the accused and Furtak for some t ime and taking into account

the fact that Furtak cla imed maintenance for the elder chi ld

that was in his care at that stage I f ind i t very probable that the

accused was extremely annoyed wi th th is set of af fa i rs.

I f ind i t more than l ikely that he would have indeed cal led

Furtak to stop interfer ing in his household. As the interference

went even further than interfer ing and even possibly involved

incarcerat ion of Petronel la I f ind i t very l ikely that some form

of int imidat ion from the accused’s s ide did in fact take place.

Although there is some doubt as regarding the exact

words that were uttered by the accused this speci f ic day I am

sat isf ied beyond reasonable doubt that the idea of the phone

cal l was to threaten Furtak to stop interfer ing and stop

cla iming maintenance from Petronel la. The threat being that i f

i t was not stopped that the accused would indeed ei ther set his

home al ight or physical ly assault h im.

I am sat isf ied that the accused’s denial in this regard is

not reasonably possibly t rue. I am sat isf ied that th is does in

fact const i tute int imidat ion as envisaged by sect ion 1 (1) A of

act 71 of 82.

Regarding the second incident I am simi lar ly of the

opinion that Furtak is corroborated on mater ia l aspects by Miss

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Lindiwe Mkona. I f ind Miss Mkona’s evidence to be of a good

nature. Certain aspects on which she might not have

remembered detai l should be judged against the fact that she

was clear ly having st ress that day as i t was supposed to be the

funeral of her hal f brother that day.

I s imi lar ly f ind the accused’s version of what happened

th is day to be not reasonably possibly t rue. I f ind i t extremely

strange that very important issues of the accused’s case were

never put to Furtak or Miss Mkona. The probabi l i t ies again are

in favour of the state case and against the accused’s case

regarding this incident.

I f ind i t very probable that the accused being very

annoyed at that stage that Furtak would st i l l at tend a fami ly

funeral was present that day. And f ind i t extremely unl ikely that

somebody else would have smashed Furtak’s windows. On the

accused’s version only one window could have been broken by

a br ick that was thrown by the accused.

He did not at tempt to explain how al l the windows got

smashed. I f ind that Miss Lindiwe’s explanat ion of how these

windows got smashed was in fact the truth and that i t was the

accused who did that c lear ly out of spi te and to get back at

Furtak for not leaving the Mkona fami ly a lone.

By smashing the windows of a motor vehic le and a

relat ively expensive motor vehic le wi th an i ron bar the accused

clear ly commit ted mal ic ious in jury to property as envisaged by

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count 2. Regarding count 1 the court f inds that the accused did

in fact h i t Furtak once wi th an i ron bar on the head.

On the evidence of Miss Lindiwe Mkona the court a lso

f inds that the accused at tempted to hi t Furtak a second t ime

after Furtak fe l l . Mr. Murray is correct in h is submission that

we do not have medical evidence regarding the ser iousness of

the injur ies Furtak sustained th is day.

I am however of the opinion that any person in his or her

r ight mind i f i t is an adul t person would indeed at least foresee

the possibi l i ty that a person you hi t wi th an i ron bar on the

head might sustain such ser ious in jury that that person may

die later.

There is no suggest ion f rom the defence side that the

accused was not at h is sober mind th is speci f ic day and the

court f inds that as an adul t person he did in fact foresee the

possibi l i ty that by hi t t ing Furtak with th is i ron bar Furtak might

sustain such ser ious injury that Furtak may die as a resul t

thereof.

We are of course not in a posi t ion to make a f inding

regarding the exact nature of the injur ies sustained as we do

not have medical evidence in th is regard. I however want to

emphasise that for a charge of at tempted murder to be proven

one does not necessar i ly needs medical evidence. Common

sense would often dictate the simple example which we of ten

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deal wi th in our regional courts is where a complainant is shot

at and completely missed by an accused in which case

attempted murder could easi ly be found wi thout any in jury at

a l l .

The court is sat isf ied that the state proved i ts case

although with a few problems in i t beyond a reasonable doubt

and f inds that the accused was in fact a ly ing wi tness

regarding these events.

The accused is accordingly CONVICTED on al l three

counts as put on count 3, specif ical ly on the main count of

int imidat ion as put.

ACCUSED HAS NO PREVIOUS CONVICTIONS

MR. MURRAY ADDRESSES COURT BEFORE SENTENCE

PROSECUTOR ADDRESSES COURT BEFORE SENTENCE

SENTENCE

In assist ing the court to arr ive at an appropr iate sentence

the defence placed the fo l lowing personal c ircumstances of the

accused on record: the accused is current ly 36 years old. He is

a nat ional f rom Angola or a c i t izen from Angola but has been is

permanent residence in South Afr ica af ter coming here as a

refugee since 1993.

He atta ined the equivalent of our metr ic n Angola. He st i l l

has fami ly in Angola and sends money there on a regular basis

when avai lable. As heard dur ing evidence he fathered a chi ld

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with Petronel la. The accused has been incarcerated on another

case and is current ly awai t ing t r ia l on the other case.

Before hew as incarcerated he earned approximately

R500,00 per week net prof i t f rom buying and sel l ing clothing.

He has no previous convict ions. I t is conceded by Mr. Murray

that he accused was convicted of ser ious cr imes. Mr. Murray

however emphasises that the court should take into account

the bui l t up to especial ly count 1 and 2.

He submits that there was in fact some provocat ion in the

manner that Furtak deal t wi th Petronel la and the chi ld. Mr.

Murray suggests that one should not accept that the at tempted

murder and mal ic ious in jury to property was a resul t of the

2004 int imidat ion. He suggests that that int imidat ion might wel l

have been an empty threat .

I t is common cause that Petronel la and the younger chi ld

have since passed away. Mr. Murray suggests that in l ight of

th is fact there is no real possibi l i ty that th is type of behaviour

could be repeated as the route course of the problem has

disappeared.

I t is p laced on record that the accused is HIV posi t ive. He

is not get t ing adequate medicine at Pol lsmoor at the moment.

Mr. Murray emphasises that Mr. Furtak clear ly recovered from

his injur ies. He emphasises the fact that the accused has been

in custody now for several months await ing t r ia l .

He concedes that a suspended sentence might not be

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proper in th is case especial ly in the l ight of the fact that the

accused wi l l probably st i l l be in custody for some t ime await ing

tr ia l on the other case. Urging the court to take into account

the provocat ive ci rcumstances of the events the defence

requests that the court wi l l basical ly sentence wi th mercy.

No address is g iven regarding the f i tness of the accused

to possess a f i rearm in terms of sect ion 103 (1) of act 60 of

2000. Mr. Breyl for the state emphasises the ser iousness of

the offences and indicates that the accused clear ly has no

remorse. He concedes that the accused as a f i rst of fender has

favourable personal c i rcumstances but suggests that d irect

imprisonment is the only sui table sentence.

Mr. Paolo the court d id not make the f inding that the

damage to the vehic le or the assaul t on Mr. Furtak was a result

of the phone cal l in 2004. I fu l ly agree with your at torney that

one should avoid jumping to that conclusion hast i ly . I l ike him

got the impression that the incident in January 2005 was not

p lanned at al l and wi l l I not f ind as I d id not f ind dur ing

judgment that this was as a resul t of the phone cal l in 2004.

This is an important f inding as i t suggests that the threat

in 2004 was just that a threat. And i t fur ther suggests that what

happened in January 2005 could have happened on the spur of

the moment without any planning. I fur ther agree with your

at torney that the background of th is matter is of extreme

importance.

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This type of jealousy because that is what i t boi ls down

to at the end is extremely common in our cr iminal courts. Very

often we deal wi th extremely ser ious murder cases in our

regional courts which resulted out of love t r iangles. This is

c lear ly the background of our case too.

You and Mr. Furtak both wanted Petronel la and that was

the route cause of what happened. Too often unfortunately

very ser ious cr ime is then commit ted when people become

jealous of other people. Al though I wi l l 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 wi l l accept that there was a lot of f rustrat ion in your

mind at that stage and I wi l l accept that the fact that you were

diagnosed to be HIV posi t ive 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 f rom school

chi ldren not f rom adults l ike you. Had i t stopped at damaging

Furtak’s car I might have said that I could understand what you

did. But i t went much further you ser iously assaul ted Furtak as

wel l .

I say ser iously knowing that we do not have any medical

evidence on record but the probabi l i t ies are there that Furtak

could have sustained ser ious injury i f he was hit once or more

than once wi th an i ron bar on the head. Courts warn often

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against th is type of senseless abuse of power.

Regarding sentence the court takes into account that you

are a f i rst of fender and that you do indeed have favourable

personal c ircumstances. I t seems to be common cause that you

wi l l st i l l be in custody for some t ime to come await ing tr ial on

the other case.

I t is indeed relevant that you are HIV posi t ive. I would not

be surpr ised to learn that the fact that you are current ly

awai t ing t r ia l pr isoner in Pol lsmoor would be the reason for you

not receiv ing proper medicat ion at Pol lsmoor. I would not f ind

i t strange i f their pol icy would be to only subscr ibe th is type of

medicine to people who are sentenced pr isoners and not only

awai t ing t r ia l pr isoners for obvious reasons.

I am of the opinion that d irect imprisonment is indeed

cal led for today. I do not have lengthy imprisonment in mind

and I th ink that d i rect imprisonment would benef i t you in

another way as wel l . Being that you wi l l hopeful ly have easier

access to HIV medicat ion i f you are sentenced and not only

awai t ing t r ia l .

For these reasons the court has decided to impose

imprisonment in terms of sect ion 276(1) ( i ) of the Criminal

Procedure Act. Usual ly people sentenced under th is sect ion

are released after serving only a very short port ion of the

imprisonment imposed.

But should you st i l l be in custody the benef i t would st i l l

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be there that you are sentenced and is i t the intent ion of th is

court that you wi l l st i l l be i l legible for medicat ion in Pol lsmoor

whi le you are awai t ing tr ia l on the other case. I have also

decided to take the three counts together for purposes of

sentence.

I know that th is is not done often especial ly in l ight of the

fact that we are deal ing wi th two incidents and with a statutory

of fence on the one side and two common assaul t of fences on

the other s ide but am I of the opinion that the bui l t up as

explained by your at torney dur ing address is c lear ly of

re levance.

This is one case at the end we deal ing wi th your

frustrat ion wi th Furtak and the manner he deal t wi th Petronel la

and the chi ld. Therefore the court wi l l indeed take the three

counts together for purposes of sentence.

Al l these aspects then taken into account and the three

counts taken together for purpose of sentence you are in terms

of sect ion 276 (1) ( i ) of act 51 of 1977 sentenced to THREE

YEARS’ IMPRISONMENT .

The court makes no f inding regarding the provis ions of

sect ion 103 (1) of act 60 of 2000 which means that you are

unf i t to possess a f i rearm. Your at torney wi l l explain to you

that you do have the r ight to apply for leave to appeal against

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this convict ion and sentence. I f 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 wi th such

an appl icat ion should you want to apply for leave to appeal . Do

you understand the sentence and what I have explained.

ACCUSED : I do your worship.

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