testimony Felix Furtak

24 July 2004.

And on that specific day please tell the court what happened? --- I was sitting in my office or in my home I work from home number 3 Plain Street in Woodstock and at the same time there was also present my friend Mrs Molly Allison who was also in the house. It was sometime in the day time maybe around lunchtime.

Yes. --- Then I received a telephone call and I could hear that the accused was calling me or talking to me.

How did you at that stage know that it was the accused talking? --- Because I know him for many years and therefore I do know his voice.

And what did the accused say to you on that day? --- The accused told me that I must not mess around or release or let go of his girlfriend which he was obviously under the understanding is his property or whatever you want to call it and otherwise if I do not actually fulfil his demands he would come to my house and I remember clearly that he said that he will come with a knife and fire or fire and a knife.

When he said that to you what did you understand was he going to do to you? --- I know from the fire obviously meaning setting my property alight which is quite obvious and to come with somebody with a knife is obviously with the intent of doing bodily harm to them which I found quite obvious.

And I just want to clear one thing up this girlfriend of his can you please tell the court what her name is? --- It is Mrs Petronella Zanella Mkona.

And when he told you that what did you do then what happened thereafter? --- I realised obviously that I would only have a case if I have a witness of intimidation. Luckily I had a telephone with a speaker facility and that my friend Mrs Allison was nearby. Then I went to call Mrs Allison and switched on the loudspeaker facility of the telephone and I asked the accused if he could please be so kind and repeat what he had said. Now at the time the loudspeaker was on and Mrs Allison was present and the accused repeated I will come to your house with fire and a knife.

And then what happened next? --- Then as far as I am concerned I had, the case was closed then I put the phone down. I cannot recall actually whether the accused hung the phone up first or I hung the phone up first but the conversation was ended and both myself and Mrs Allison then subsequently went to Woodstock Police Station to report the case of intimidation.

At that stage did you feel threatened by the accused’s words? --- Yes.

You say that you have known the accused for quite some time now do you have regular contact with the accused? --- I have not necessary regular personal contact but my wife obviously gave me most of the accounts of the accused’s life that I know.

Did you ever discuss this incident with the accused after that date? --- No.

Tell me the second charge that you made against the accused can you please tell the court about that? --- This was now on 31 January 2005. At that day my ex-wife then ex-wife’s brother had died in a tragic car accident and there was a funeral on that Saturday which was 31 January. Myself and my wife’s first son we went together with my motor vehicle from our home in Woodstock to NY89 in Guguletu. NY89 is the residence of the Mkona family where my wife originally comes from. When, we arrived there early because for a funeral you are supposed to be early so I think it was quite early like 08:00 in the morning. At the time everybody from the family which includes my ex-wife and the sisters, brothers most of the family were all there and present but we were told that the funeral was cancelled for various reasons. Because I had already taken the day off I was under no pressure to leave the place and I decided to spend some more social time with the family also that the child my foster child can actually see his family and play with the friends. Then I would say maybe about 09:00 or 09:30 the accused entered the house. Because obviously through the problems with the marriage and the boyfriend and whatever and the family involvement the situation grew very, very chilly and nobody said anything because it was already at a stage the time over the fighting over the marriage was over I mean we were already divorced. So Mr. Paola entered the house and demanded my ex-wife to follow him. While he waiting outside my ex-wife was trying to pack her clothes she was extremely nervous and took a long time to pack her bag of clothes because she was obviously afraid of what was going to happen. Then the accused, my ex-wife and her second child disappeared to their shack in Philippi where they had their residence. Then I remained in the house while Tando because my child was playing outside, I remained with the sister in this specific case Lindiwe Mkona remained drinking coffee and talking about the weather and avoiding any critical subject so we were just enjoying ourselves casually with coffee. So the morning passed and I can be corrected now at maybe about 12:00 I heard a shouting from outside where somebody said: “Felix your car”. From the way it was said I could already see that there could be a problem because I had threats before and I knew that I was potentially at risk. So I ran out immediately and I saw the accused running away from my car when I saw him he was approximately maybe 2 metres away from my car, him running away from my car. I also realised that moment that the person who was warning me was Boetie Mkona another member of the family. I saw that all windows and that means all the glass of the car was smashed as well as various chrome beadings and accessories. Instantly I tried to chase the accused in order to safe keep him in order to be able to press charges against him. Instantly I had a very big blow on my head which at the time I fell to the ground but I managed to somehow get back on my feet again and continued pursuing the accused and I had then successfully within seconds, everything happened within seconds, I managed to grab the neck of the accused and then I brought him on the ground. I immediately ordered the family members who were immediately present and I instructed the older sister of the family Mrs Charmaine Mkona to please call the police.

You said that you felt a big blow to your head. Do you know were you hit by the fist or..? --- No I was, later on I saw that the accused had a very big steel iron bar maybe approximately 50 centimetres long in his hand together with other weapons which I saw on his body which included a bottle of acid which the accused I know previously used, a bottle of petrol and a knife and I have seen all these items on the accused.

Do you recall how many times you were hit by the accused? --- I do not recall how many times only later examination by the doctor found a big laceration on the head about 5 centimetres long, it found the nose not broken but the nose injured and only three days or four days after the incident after I got considerable pain in breathing and got very sick, subsequent examination found a broken rib on this side.

Can you please tell the court which side of your body which rib was broken? --- Here.

COURT: The left side is shown.

PROSECUTOR: At the stage you went after the accused did you have any weapons with you? --- I had no weapons at all nor did I used my fists all I intended is to prevent the accused from running away.

You also mentioned that you saw that your windows of your car were broken at this stage. Can you please tell the court what kind of a car is that? --- The car is a Lancier (indistinct) GTE that is a vintage Italian vehicle 1969 and which is the only one in, of that model in South Africa.

Can you please tell the court what do you do for a living? --- I run the Lancier Services CC I do services and restoration and parts for vintage Lancier motor vehicle and this business started out of a hobby a passion of mine because I am a collector of these vintage motor vehicles.

So would you be able, position to tell the court what the damage to this vehicle was? --- The damage to the vehicle is unfortunately (indistinct) because spare parts are not regularly available on the open market however I am specialised in dealing with these parts I have so far found all the side windows which are back in the vehicle I am still waiting for windscreen and the rear window which if I am lucky I will find somewhere in the world so I will eventually hopefully be able to get the car back on the road.

And the side windows that you had now replaced what did you pay for them? --- Because that comes from my own stock so I took it from my own business. I gave, you are in possession of a document where I have roughly estimated the repair costs of the vehicle to be around R12 000,00 or

R13 000,00 which is rather hypothetical but it is just to give some indication.

You mentioned that Boetie Mkona was the one who initially called you? --- Yes.

Did you see him outside? --- I saw him outside yes. He was in the house next door.

And are you still in contact with the Mkona family? --- No currently because of various other problems I am not in touch with the Mkona family anymore.

Your worship with the court’s permission I would just like to refresh the witness’s memory regarding the dates of the incidents. Mr. Furtak I am going to hand you a document which was signed by yourself as well as a commissioner of oaths if you could please just verify that that is your signature? --- It is in fact the document that I have drafted myself and had it certified that is correct yes.

So you certify that, that is exactly what you told that person on that day? --- Sorry I said the 31^st the date was the 29^th I apologise it actually happened on the 29^th.

If you can just give me the full date on which the incident occurred? --- 29 January 2005.

After this incident occurred you mentioned that you brought the accused under control. What happened thereafter? --- What happened thereafter obviously a big commotion occurred because I mean how can I put it in a, (indistinct) malunga and quera quera a fight about a woman it is rather a novelty so there were obviously hundreds of people around and none of them particularly liked the accused so people started stabbing not stabbing but kicking and otherwise attacking the accused because they finally found they (indistinct) some justice of the people would be done. I actually tried to protect the accused from further attack by other people. He was also attacked by other members of the family who also had grudges against him but I did actually tried to protect him to keep his body intact sir.

Did you at any stage seek medical attention? --- Yes obviously there was, emergency medical people were there who attend to me who put the bandage around and I was obviously told to go to the government hospital in the township which I did not find a good proposition so I eagerly took myself with the broken motor vehicle to a private hospital in Kenilworth where I had my injuries attended to. I immediately had to go back to Guguletu police to report the case.

What kind of medical attention did you receive at the private hospital? --- At that stage the laceration on the head which I was about 5/6 centimetres long which I considered quite severe which was on the head who was stitched up and the nose was stitched up because the broken rib was only found on a subsequent examination three or four days later.

And after this incident occurred have you had any personal contact with the accused where you contacted him or…? --- I had the last contact with the accused I had about two weeks ago when he actually called me on the telephone but I did not have any physical, I have seen the accused in court here obviously on numerous occasions I saw the accused in court but I have not met him outside of court.

And did you at any stage give the accused any right or permission to assault you or to hit you? --- Most certainly not.

Thank you your worship I have no further questions.

NO FURTHER QUESTIONS BY PROSECUTOR

CROSS-EXAMINATION BY MR. MURRAY:

Mr. Furtak perhaps you would confirm that on 9 February 2006 you were in attendance as a witness at court is that correct? --- On the 9^th …?

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

The last appearance that this court sat am I correct? --- Yes.

Mr. Furtak would you like to relate to relate to the court an incident that happened on the steps of these courts on that particular day when you left the precinct of this court? --- May I kindly ask the court and the prosecutor whether this incident in fact relates to our case because there was in fact an incident which is an incident all by itself and unless I am told so do not know whether it actually relate to our case presently.

Mr. Furtak I put it to you that you made certain threats on the last appearance in court. I am giving you now an opportunity to relay the events or put your version before the court alternatively the defence will then seek to call a witness to give their description. --- May I ask the court do I have to answer to this?

COURT: The relevance of this Mr. Murray?

MR. MURRAY: Your worship the relevance of it unfortunately it is an aspect that occurred I am not in a position to obviously relate to myself. I can and I do intend calling witnesses. It will reflect on the state of mind of the accused as it pleases the court.

COURT: But how would the state of mind on 9 February now impact on the charges that were laid several months ago?

MR. MURRAY: I could leave that question I will then withdraw that question at this stage and perhaps develop it at certain at a later stage as it pleases the court.

COURT: Sure you are welcome.

MR. MURRAY: Now Mr. Furtak just to get your relationship sorted out here you say that the accused you knew him because he was the boyfriend of your ex-wife? --- That is correct.

Your girlfriend is Petronella Mkona is that correct? --- No she was never my girlfriend I was married to her.

Was your wife? --- She was my wife I was married to her.

Could you tell the court when you divorced your wife? --- We got married in May 2002 and we got divorced one and a half a year later that must have been September 2004 then. That was one month before my wife’s second child was born.

In September 2004, you divorced your wife in September 2004? --- Yes but I stand under correction but it can be easily verified.

Do you have the documentation? --- I do have the documentation.

Now were there any children born of the marriage? --- No.

You mentioned the first incident if I may call it that is the one relating to alleged intimidation. You mentioned the second where you were allegedly assaulted. You mentioned that you were in the company of your ex-wife’s child is that correct? --- On the second incidence yes that is right not in the company but he was playing outside but he was in the vicinity when the incident happened.

If I understood your evidence in chief that was when the prosecutor was leading you, you stated that you approached this house together with the child? --- That is correct.

Did you take the child to the house? --- Yes.

Now am I correct in saying that this child was living with you at that stage? --- That is correct.

This is your ex-wife’s child? --- That is correct.

And am I correct in saying that this is not your biological child? --- That is correct if I may also could ask what the child has to do our case here.

Sir I am busy asking the questions I am just trying to set up the environment so that the court can understand the background to this. So if you will allow me to continue asking the questions. Now how did it come to be that you were in the company of this child? --- Because the child was living with me at the time and it was his uncle’s funeral so it was only natural that myself and the child will attend the funeral together.

And where was the father of this child? --- The farther is still to be found we are still searching for the father of the child.

Now if I understand it correctly when in fact did Pat leave you or when did you go your separate ways? --- She left the house roughly in September 2002.

2002? --- Three months after the marriage.

2000 and? --- 2002 it must have been September 2002.

She left you in September 2002? --- It is four years ago.

And are you certain of the date because I …? --- Look all the dates can be verified if I should say something wrong there are documents relating to this instance.

When were you in fact divorced? --- To my knowledge we got married on 24 May 2002 which was my birthday and she left three to four months after we got married she left the house.

I understand you are a German national is that correct? --- Yes that is correct.

Are you understanding my questions if I pose them to you in English? --- I should be able to yes.

The reason why I am asking you this because when I asked you when the date of your divorce is you mentioned one and a half year and you mentioned 2004? --- Sorry.

That is why I am asking you I needed to…? --- Sorry sir my sincere apologies now I am actually getting the dates mixed up and apparently I am not allowed to use any paperwork to confirm this here. But all the dates can easily be verified if that is of any importance it can be verified with the documentation.

You will understand the importance, the evidence that you give before court is evidence that you are certain of not speculation if you cannot remember then you must tell the court that you cannot remember things. --- As far as I recall I was married on 24 May 2002 which was four years ago.

Now when were you aware of the fact and you confirmed this is court that subsequently to your divorce from your wife that the accused before court then came into a relationship with her? --- He was in a relationship long before, the relationship to my ex-wife preceding our marriage. According to a written statement of my ex-wife she married us both simultaneously in the year 2000.

Am I correct in saying that this, one would often see you as the person who was married to her that this was interference in your marriage, the fact that there is a relationship between your ex-wife and him? --- I did not know it at the time, at the time when I was married to my wife I was obviously under the impression she does not have relationship with anybody. I think I was under a reasonable unfair impression that this is the case.

When did you first become aware of the fact that there was a relationship? --- My wife married me primarily according to her own words to seek protection from the accused. So obviously… (intervention)

My question to you sir was when did you become aware of the fact that there was a relationship between the accused and your ex-wife? --- The first day I met my ex-wife she told me about and the problems that she had in her relationship with the accused and that at the time when she starting to see me or starting to date me.

Sir, once again as with the dates I must put it to you that I am confused once again because I asked you when you became aware f the accused and you said that at the time of your marriage you were not aware of the relationship? --- No I was not aware… (intervention)

Sir let me finish please? --- What I said I was not aware that the relationship continued I was under the impression obviously that my wife married me that she has finished her relationship with the accused. I was not aware that it continued through the marriage or in fact it actually continued through the marriage.

If I can pose that question to you once again and please do not interrupt me when I asked you the question when were you aware that the relationship had continued, a very simple question. --- I realised that I would say maybe in November 2000.

November? --- 2002 November/December.

How did that happen? --- Because the family who tried to reunite us the family made various efforts to reunite the marriage and obviously it was brought to me that she had continued to see the accused, not continued started again to see the accused.

Am I correct in saying that as in any normal man that is an upsetting thing it is something that is a break in your marriage? --- Yes it was certainly upsetting. But on the other hand my wife was legally entitled to do what she was doing and so there was no criminal case, as I understand we are in a criminal court and we are trying to find criminal events. This was a civil matter which was very upsetting to me admittedly but she was quite within her rights to do what she was doing, legally not morally maybe but certainly legally.

Yes I am sure sir that the court would be in a better position to make legal judgments as far as what has happened. Now the child the elder child was fathered by another biological father am I correct? --- That is correct.

Could you explain to the court how you came to be having the custody of this particular child? --- How I was given the custody… (intervention)

PROSECUTOR: Your worship I have been listening to the questions and trying to find the relevance but the state will be objecting I do not see the relevance of the child’s biological father and when they got divorced and when they got married as to how this is relevant to the case before the court.

COURT: Mr. Murray.

MR. MURRAY: As it pleases the court if I can just give a background to the relevance again your worship I think it incumbent on the defence to paint a picture of exactly the situation in which the relationship between the parties was at the time and the time of the alleged offences.

COURT: I will allow the background information.

MR. MURRAY: The question is how did you come to be in having the custody of the elder child? --- Because the custody was given to me by Cape Town children’s court.

Do you have confirmation of that? --- Yes I have got all the documentation which I did not bring with because I did not consider it relevant. The matter will be heard in the Cape Town family court children’s court next week and all these issues are going to be discussed in the family court next week which I think is the right forum for these questions.

Now my instructions from the accused will be that you on a continual basis pressed the accused and the mother of the child for maintenance payments? --- It is in fact true that I have laid a maintenance claim against the mother not so much for the money but for education purposes because I have read once in a magazine that the moment parents who have deserted the children are made to pay maintenance will also put more attention and love to the children and I was using a maintenance claim simply as a vehicle to get the mother’s attention to the child because the mother had deserted the child at the time.

Sir am I correct in saying and I put it to you that you are prepared to make use of the courts as a vehicle to obtain certain ends? --- No I was quite legally within my rights to apply for maintenance. I was quite legally within in my rights that is not using the court as a vehicle. Both my wife and myself have an income of a similar size so I was quite within my rights to actually ask the mother to a contribution for her son. The court did follow that and there was a consent ruling that the mother would have to make some contribution towards the maintenance of her child which she also agreed to it was a consent maintenance agreement that we both signed.

Yes I put it to you sir in fact it just reflected in your statements that you are a person who is prepared to make use of the judicial system the court system to obtain your own ends. --- No not my ends of justice we are here for justice not to obtain from this person.

Now there have been two incidents that you have related here if I understand you correctly the one was on 24 July 2004? --- It was 2004.

I will make sure of that date because it seems as though you are a bit confused about dates earlier on? --- No, that was 2004 that is correct ja.

Now at this stage you were divorced from your ex-wife? --- That is correct.

That is Petronella Mkona? --- That is correct.

Did you have contact with her family at that stage? --- Yes.

And were you aware that at that stage the accused was living with her? --- Yes.

Sir if I understand you correctly you had contact with Ms Mkona’s family? --- That is correct.

And were you aware of the fact that the accused was living with Ms Mkona at that stage? --- That is correct.

And you will confirm that a child was born of this relationship between the accused and Ms Mkona? --- No I have actually evidence to the contrary not confirming evidence but all I can say is that I doubt that the accused has a child with my ex-wife a DNA test can establish if the need would arise.

With all due respect sir you are by profession a motor mechanic am I correct? --- No I am actually an electronic engineer.

But your practice is basically motor mechanics on Lanciers? --- Lanciers service of vehicles and we do internet services also.

In fact you are a motor mechanic? --- I am actually not a motor mechanic no.

You are not a doctor to be in a position to establish the paternity of the child which my client says is his am I correct? --- No I am not in a position at all I am not a doctor not at all, this is too far a DNA test, it is not my expertise.

Well I am putting it to you that the child was born out of that relationship between the accused and your ex-wife? --- You can put it that way unless I have evidence of that I would not confirm that. But in the statement from my wife is to the contrary so.

I put it to you sir that in terms of our law is it stands until the contrary is proved that is in fact how it stands. --- You can say that I say nothing to that.

Now that was the situation in 24 July 2004. you then said that the accused phoned you? --- 24 July 2004.

Had you had any contact with the accused till that date? --- Personally no I have seen him around sometimes in the hose of the family but obviously through the situation I did not seek to make any contact with him I had very little reason to do so.

Because my instructions are that you were also pressing the accused for maintenance money at that stage, you pressed them as a pair to make contributions towards the maintenance of the child? --- That is ridiculous that shows that the two of them have not got the legal insight to read the legal documents correctly.

Sir, if we accept your version then he had no reason to contact you on 24 July 2004 am I correct? --- Look he had reasons to contact me because obviously if the mother would have paid a contribution to her child it would have mean less in his pocket so he had every reason obviously because my ex-wife was forced to submit her income wholly and entirely to him. So obviously he would have had a loss of income should she have to provide for the child.

You are putting information before the court here and you are not giving an indication as to what your source of this information is. --- That is herself that is the statements that she made herself to me and family members like… (intervention)

But not statements made directly to you by the accused? --- No.

Am I correct? --- That is correct.

So it is not something in your knowledge you are getting it second hand am I correct? --- That is information that I have got form my ex-wife and the family.

Sir, am I correct in understanding that he had no reason to phone you on 24 July 2004? --- Look I think the maintenance proceedings were going on it was obviously upsetting for the two of them because I would obviously asking attention for the child.

Let’s just go back to this date 24 July 2004. your phone rings I assume it was a cell phone? --- No it was not a cell phone.

What type of phone was it? --- It was a landline it in fact a German ISTN telephone.

Can you just explain to the court what happened you established that it was the accused on the other side of the line? --- That is correct.

What did he say to you? --- He said Felix the accused is normally very short with words and he said that I should stop messing around in his affairs and proceedings where I must say I do not remember the correct words of that the only words that I can correctly affirm that he has said is that he will come to my house with a knife and fire. These words transpired it is such a long time ago they are still in my brain and that I can exactly repeat here.

If I can ask you sir you picked up the phone am I correct? --- That is correct yes.

And then what did he say to you? --- As I say I will not confirm on the entering stage just summarising that I must stop intermingling with his affairs meaning my ex-wife’s affairs which were their joint affairs. He said otherwise he would come with fire and a knife to my house.

Did he introduce himself to you did he say this is David Paola speaking or what did he say? --- He said I am Landrino that is the name he is normally referred to is Landrino.

Once again sir I am asking you because now that I have put the words in your mouth now you remember. I asked you how did he initiate the conversation you could not tell me that you could only remember that he was bringing fire and a knife to your house? --- Look obviously you are telling me now because I did not remember he said his name that I might not have recognised Paola has got a very distinctive voice and it is virtually impossible once you ever hear his voice to forget it again. So it would have been somebody else it is actually a ridiculous proposition.

When you took the call if I understand your evidence you were alone am I correct? --- I was alone in the room my friend Mrs Allison was in the room next door.

Mrs Allison you say she is a friend? --- She is a friend.

Not an employee? --- No.

Am I correct in saying that Mrs Allison was the lady that you were sitting next to this morning outside on the bench while we were waiting for this matter to be called out? --- That is correct.

You say that you hear that, you said in your evidence in chief, he said you must not mess around release his girlfriend and he would come with fire and a knife. --- That is the statement that I gave at the time yes.

Is that correct sir? --- That is correct.

As it is stated there? --- That was the statement that I made.

And he said that you must mess around with his girlfriend you must release his girlfriend. What did you understand by that? --- Obviously I did probably relate it to the maintenance claim because obviously I mean he wanted obviously to ask to stop all of our relationship because he was obviously still connected to one child also which also was the problem and he asked me to stop all relationship with my ex-wife in whatever form that may be.

Why would there be a relationship between you and him and the child? --- The child forms a relationship between myself and my ex-wife because she is the biological mother and I was the foster parent. That still gave us some connection which obviously was something that he was not so happy with sir.

Now when you heard this, the alleged threats what did you do then? --- I called my friend Mrs Molly Allison to come from the room next door.

Now he is obviously aware of what you are doing on your side he phones you these threats are made did you immediately call Mrs Allison what happened? --- Ja I called immediately Mrs Allison.

To come to you? --- To come to me the room next door is only five metres shod she only had to walk a distance of five metres which probably only takes two or three seconds so she was virtually there immediately.

When she came to you what did she say to you? --- She did not say nothing to me I simply pressed the speaker button the telephone has got a speaker button where then the telephone conversation is displayed by loudspeaker so everybody can hear it. Then I asked the accused and I pretended that I did not understand I said can you please repeat and then he actually repeat it exactly the same… (intervention)

Sorry can we just take it step for step sir you said when you called her into the room you said, did you tell him that you could not understand? --- I did tell him please repeat what he said to me.

Where was Mrs Allison at that stage? --- She was already standing next to me.

Had you put on the speaker phone yet? --- At that moment the moment when I asked him can you please repeat what you are saying that moment I pressed the button.

And what did he say? --- He repeated exactly the same he said I will come to your house with a knife and fire.

Now what did Mrs Allison say to you when she heard that? --- Nothing Mrs Allison was not there to say she was there to listen because Mrs Allison knows the accused also for many years and would have been able to immediately identify his voice.

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

How did Mrs Allison come to know the accused? --- Because Mrs Allison used to live together with my ex-wife’s family in the premises in 140 NY29 where the accused obviously went in and out of the house while she was living there so she knew the accused for a long time.

What did she say to you did she say nothing you said she was just there to listen? --- I called her and said Molly come over here and I put her next to the telephone and I let her listen there was no other conversation needed.

What was her reaction? --- Her reaction she was obviously she could see that he was threatening me and as she is my friend she was obviously not impressed.

Yes I wan to know what her reaction was did she say something did she exclaim something as one would expect somebody to do when they hear somebody being threatened? --- Because I hung the telephone down we obviously did discuss the incident.

My question to you sir is can you remember did she say anything to you what was her reaction? --- I cannot remember what her immediate words were.

You cannot remember. --- Knowing Molly she would have said “Oh my God” that is from Molly’s character the most likely thing she would have said.

Yes sir we are not here to ask (indistinct) to relate what you saw. --- Sorry.

Your worship I must apologise could I ask that he matter stand down for a few seconds. Unfortunately I am getting very important information here. The court will understand I have problems in communicating with the accused and there is an issue that needs to be cleared up in response to the evidence that has been placed before court.

COURT: it will not be long?

MR. MURRAY: I doubt if it will be long your worship. Unfortunately it was the evidence or matters that I was not aware of.

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

COURT ADJOURNS

COURT RESUMES

FELIX FAKTUR: s.u.o.

CROSS-EXAMINATION BY MR. MURRAY: (continued)

Thank you your worship I appreciate the opportunity to consult. Mr. Furtak just to get back on track again you said that the accused phoned you basically mentioned that he was coming with a knife and he was coming with fire to burn down your house am I correct? --- No, I said the accused said he would come with fire and a knife.

Yes. --- He did not specify what he intended to do with it but it is unlikely hew as going to light my Christmas candles.

Yes you speculated as to what he meant by that am I correct? --- Yes because he could have light my Christmas candles even though it was not Christmas.

Am I correct in saying that if we assume and my instructions are that in fact he did not say anything of that nature to you, that he said he was coming with fire he could have been speaking figuratively if you understand what that means? --- I do understand my knowledge of English is good enough yes.

Because my instructions from the accused are that he in fact phoned you on that particular day because his girlfriend your ex-wife let’s assume he had a relationship with her that moment subsequent to your divorce, had been locked up as a result of not having been paid, you having been paid maintenance towards the child? --- That is not correct.

My instructions form the accused are that you saw to it that the mother would be incarcerated should via the courts because she had not met her maintenance obligations? --- Factually wrong.

Why would the accused phone you at this junction for any other reason? --- Because obviously he did not want to have any money diverted from him to the child it was obviously not in his interest.

Are you aware of where the child is at the present moment? --- While the matter is pending with the family court… (intervention)

Sir my question to you, are you aware of where the child is at the present moment? --- I have certain ideas but I do not have evidence.

Can you tell the court where he is? --- Yes may I ask if it is of relevance?

COURT: Mr. Murray?

MR. MURRAY: Your worship once again it is of relevance if I can establish who had custody of the child at the present time. --- At this present time the custody is under, it is debated. The custody has been temporary removed from me and there is an appeal pending and the matter will be sorted out by the family court in Cape Town in due course.

You mentioned this aspect of the coming with the fire and a knife. Can you remember exactly what was said is that all he said was there any other thing was mention made of your former wife or the child or anything relating to the maintenance? --- I do not recall this.

You do not recall it? --- Because I obviously only remember these two words which were in my opinion relevant. Everything else about the discussion I do not remember anymore. It has not got anything to do with my bad memory but it has been a long time ago and a lot of things had been said and done I only remember the two incidents that are crucial to our case here. The maintenance matter is not a criminal matter so this is why I do not consider it relevant.

Yes I did not ask you that question. Am I correct in saying that one does tend to remember things fairly clearly shortly after the event? --- Obviously better than after a longer time unless you make notes of the events and obviously of certain things I have made notes this specific incident was recorded (indistinct) police are saying they and therefore the statements are (indistinct) next day.

Yes so you did make notes and you did refresh your memory I am sure today? --- No, as far as I recall having said that he would come with fire and a knife it constitutes a case of intimidation and that is what I consider as relevant to this case and that is what I remember.

Now you have told the court that this related around the maintenance of the older child I have asked you what you remember all you remember is this aspect of the fire and the knife. --- I mean if somebody would come with fire and a knife to your house you would also be upset about it.

How did you relate this sir back to the maintenance matter if you cannot remember anything beyond the fact that he said that he would come with fire and a knife? --- That was the reason, he could not give a reason to be upset with me. the accused has got a policy to educate people who do not…(intervention)

If you can listen to my question sir? --- Okay.

You have said that you can remember the aspect of the fire you can remember the aspect of the knife correct you understand what I am saying? --- Not aspect it is words I can remember the words.

Just let me finish please sir. So you remember those two aspects? --- Mm.

And I asked you if you remember anything else that the accused might have said and you say you cannot remember. But you have said earlier on in the court that this is related to the maintenance aspect. How do you relate it to the maintenance aspect if you cannot remember anything else besides the fire and the knifed threat? --- A lot of issues were going on and I remember a lot of the issues I say I do not remember what he said this very moment on the telephone obviously it will remember all the surrounding issues. It is a different thing all the surrounding issues and the very words that were said that moment on the telephone.

Can I assist you sir, you mentioned the knife and the fire is it perhaps that you remember these two words because they are words that have a greater impact? --- That is correct they were relevant ja.

Words that have an impact on someone. If someone shouts at you or someone swears at you or say something like that then certainly you will remember it? --- Because obviously the maintenance issue is not part of the criminal proceedings as far as I am… (intervention)

I am asking you sir to inform the court what caused you to remember those specific words? --- Because they constitute with the act of intimidation. So I knew that I have to remember that.

Are you certain that is all you remember nothing further? --- Of this specific conversation as I said in my statement I said that he told me to stop messing around with his girlfriend something to that effect that is what is in my statement so that is obviously what… (intervention)

And that is how you remember it and you assumed from the use of the words fire and a knife that he was going to come and kill you? --- No look if somebody comes with a knife he might injure you I mean there are cases but he might not kill you.

Listen to my question, you deduced from the fact that he mentioned a knife and fire that he was going to come and kill you, am I correct that is what you said to the court? --- That he could potentially do that yes because he threatened to do that it was a threat.

Because he mentioned a knife and fire? --- That is correct.

And it was something that you had to deduce? He did not come direct to say he is going to come and kill you? --- No, he could have been helping me cutting my meat for the evening that is also a possibility.

And your concern then that your friend that is Molly Allison was there when these things were said? --- That is correct.

And you are certain of that she heard what you heard that is why you had her there? --- She only heard when Mr. Paola repeated his statement of the fire and the knife. She obviously only heard whatever was said after the speaker was switched on.

Yes, and that is the point of having Mrs Allison there to confirm what you had heard otherwise it is just what you hear nobody else am I correct? --- That is correct.

And you are a hundred percent sure of that? --- (Indistinct) on the speaker phone when the accused said these very words and we both heard them together.

Sir I put it to you that although my client will confirm as you said he did contact you on that particular day but it was to try and locate his wife or rather his companion because he was concerned over the fact that she had been incarcerated related to the maintenance issues? --- To my knowledge she never was.

My instructions from the accused are that at no stage did he ever threaten to kill you or give you indication that he was either going to burn down your house or kill you in any way? --- That is obviously what the accused say and I say the other thing.

And if any evidence to the contrary should be put before this court then either that person is not telling the truth or you are not telling the truth or the accused for that matter? --- Three people who were present is the accused myself and Mrs Allison all three will give their testimony and then it is up to the magistrate to decide.

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

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

29 January 2005. on this particular day you aid that you approached this house in Guguletu went to the funeral? --- That is correct.

Whose funeral was it? --- It was the funeral of Oscam Mkona that is (indistinct) oldest uncle who is not, he is a direct uncle it is the only children that is grandfather had with his girlfriend it.

Were you aware of when this gentleman died? --- He died a couple of days earlier but I do not recall the date.

I am sure we will be able to confirm this from the necessary death certificate. --- Yes that should be.

Now you went there with your ex-wife’s first son? --- That is correct.

And can you just relate you say you arrived there at 08:00? --- It was early in the morning I would say around 08:00 ja.

And you say the other members of the family were already there? --- Not already there they were in the house of the family they were not already there they were already up.

So this is a family (indistinct) Mkona’s? --- 142 NY89 is the family home the hose belongs to the grandfather Mr. Stanford Mkona and his children are occupying the house.

And all the family members were there. how many family members were there? --- I can recall that this morning Petronella Mkona was present, Lindiwe Mkona was present, Charmaine Mkona was present… (intervention)

Petronella, Lindiwe? --- The three daughters which is Petronella, Lindiwe and Charmaine. Boetie Mkona was present there was a Clive a friend of the family also like a live in friend of the family by the name of Clive his surname escapes me at the moment was also present. Obviously there were children I do not recall which children were there but there were various children there.

You said you went in there and you heard that the funeral had then been cancelled? --- Yes that is correct it was not cancelled it was postponed.

It was postponed? --- You cannot cancel the man was apparently dead.

Do you know when the funeral was going to be postponed to or what was the reason for the postponement? --- There was apparently a problem that they did not make the necessary bookings at the graveyard in time that is now the parents of the deceased. I did not venture any further into the reasons because they did not seem relevant to me. but it was supposed to be postponed by another week which was not a big train smash you know what I mean it was not of particular relevance as far as I can see.

You say there was a problem? --- There was apparently a problem why the undertakers were not informed in time the grave was not dug in time or something.

Were you in fact invited to the funeral? --- It is actually not invite, it is part of the Xhosa culture that you attend a funeral it is actually an obligation. It would have been rude if I would have not attended the funeral.

How did you know that the funeral was on? --- I was informed by the family.

So you were in fact invited? --- You can say I was invited ja.

Did you ask why nobody has informed you, you took a day off work and you arrive here and now suddenly the funeral is not going to happen? --- It was Saturday so I really did not take a day off work it was a Saturday so I was not that, it was not particularly, it was as I said not a train smash that it was not that day I mean I had my nice suit on and everything but you know (indistinct) I can also take a day off. It was not a particular problem.

So what you told the court earlier on that you had to take a day off is not correct in fact it was a Saturday because it was your day off in anyway. --- Ja but I am self employed so I always work Saturdays. I deliberately decide whether I want to work or not I normally do work but I took the day off fir myself not from my boss but from myself.

Now you said that you then went into the house and this funeral was cancelled and the accused? --- The accused was not present as yet.

Am I correct in saying that one would have expected the accused to have been there because he is a member of the family in the sense that he has a relationship in fact he is a member of the family (indistinct) is his biological son? --- You must understand that it posed the problem to the family as I was officially married into the family. So I had a legal standing as far as the community is concerned into the house while the accused did not have an official standing he was more like an embarrassment to the family that is why he was not officially there.

That is your opinion sir. --- That is my opinion and the community’s opinion.

Because am I correct in saying sir as I understood it in terms of south African law you were divorced from the lady? --- That is correct.

So legally speaking you were divorced from the lady? --- I was in a court of law I was divorced from her. But as I was still the custodian of the child I had an obligation obviously to bring the child to the funeral and to attend the funeral.

Now you mentioned that the atmosphere became chilli how did this come about? --- The atmosphere became chilli the moment that the accused entered.

When you say it became chilli what, how do you mean what gave you this impression? --- Obviously look because you are aware of circumstances you point certain circumstances out that he was the boyfriend of my ex-wife having two people in the same room with the family is obviously not the perfect situation.

But for whom was it chilli between you and the accused or between accused and the family or between you and the family who? --- Between everybody and everybody basically.

Because the accused will deny that he in fact entered the house at any stage? --- Ja but he definitely entered he did definitely enter the house that morning most definitely.

When you became aware and given the fact as you have alleged now that there was a funeral that someone a member of the family had just died the family were there that the atmosphere became chilli why did you not simply leave? --- Simply because Thando the child was still playing outside with his friends so I obviously collect him first before I could leave.

But if I understand your testimony you continued to take the day off you were going to spend the rest of the day you were drinking coffee? --- At the time I and the rest of the Mkona family were still friendly so I had no reason to leave the house.

If we can go through it now you say you were there the child is with his friends you say the accused then entered the house. What happened then? --- We did not have any conversation at all not any dealings at all at that time.

Now given the fact that you had earlier lay charges against the accused where you thought that the accused was threatening you is intimidating you in 2004 a case which had not been completed am I correct? --- That is correct.

If you had this fear why did you not leave the house here he is he is in a position to carry out his threats that you thought he was going to carry out why did you not leave the house? --- He was at that moment he was only in the house to collect my ex-wife and the baby that was what he was for and I did not interfere in what he was trying to do. By keeping myself aside and not interfering in his business I felt to be reasonably safe and I felt protected by the other members of the family also I was not alone.

Now you said he came to collect your ex-wife and the rest of the family, how big is this house if you can just indicate to the court? --- The house is fairly small it is small.

As the houses are in Guguletu. --- Ja they are very small.

How many rooms do you know? --- One room where you enter a living room and it has got one bedroom and a kitchen and (indistinct) it is a very small place ja.

When he came to fetch his companion and his child who did he address did he speak to you or did he speak to anybody else? --- No he went straight to her. She actually called her, they immediately went outside and had their dealings their conversations outside next to a car that was parked outside.

You say you did not see the dealings that went on outside? --- I did see but I did not hear. I did see the two of them but I did not want to get involved at that time I have already detached myself to a point where I did not actively want to get involved into any of the dealings.

When, if I understand correctly it obviously could not have been pleasant for you having, you say that the atmosphere was chilli? --- Ja it was not… (intervention)

Was anything said by anyone? --- No, everybody in the family basically kept quiet and waited until the accused left with Petronella and the baby.

And did she go willingly with him? --- This is a matter that needs a lot of psychologists and a lot of examination… (intervention)

I am just asking you a simple question sir. I want to know what you observed on that day. --- In my personal opinion she did not.

Not your opinion sir what you observed? --- What I observed no she did not leave willingly.

Now my instructions are that in fact you wanted to take as you did with the elder child you wanted to take the accused’s child with you as well? --- Has he got any evidence to that effect?

Sir that is my instruction to you? --- I deny that.

Whether we put evidence before the court will come in due course and you deny that? --- I deny that.

In fact my instructions are that in fact is the reason why the accused went to the house on that day was to collect his child because it was his own biological child and he was afraid that you were going to (indistinct) of the court take his child as well? --- I do not know that his is in fact his child and I had no intention of taking the child that child was with the mother at the time which I considered is quite where the mother belonged. In fact the mother and the child were playing that morning together and they were both happy and I was quite happy to see the mother and the child and did not require any intervention from anybody.

Now you said that your ex-wife took some time in packing her bags and that you were alerted to the fact that something was happening outside by Mr. Boetie Mkona? --- That we are a couple of hours at least, let’s say maybe an hour apart, my ex-wife was packing her bags she then left with the baby and the accused and then after an hour’s time roughly an hour’s then the incident happened. So my ex-wife and the accused went tot their shack in Philippi with the baby he subsequently locked her up there and then he returned alone.

Did you witness him lock his wife up? --- I have a statement of a witness.

My question to you sir is did you witness him locking up his wife? --- No I did not witness it.

Because my instructions are in fact that this never happened as you are relating to the court? --- It is your instructions I have got instructions from a witness that obviously opposing it.

And who is this person? --- For the safety of the witness do I have to disclose the name?

COURT: Mr. Murray are we not going into side issues now taking up to much time.

MR. MURRAY: As it pleases the court your worship. I trust that the necessary evidence will be placed before court and has been given to the defence. So if we can just take it then you were sitting there you are having your coffee the alleged funeral has now been cancelled the accused comes in there is a chilli atmosphere he comes to fetch your ex-wife and his child? --- Firs the come in and everything the coffee was afterwards after he left.

I see so he is gone? --- He is gone with my ex-wife and the child he is gone thought he situation gets a bit more pleasurable again and Lindiwe decides to make coffee for everybody so I sit with Lindiwe and we did not discuss any problems relating tot the issue we were simply talking about the weather and enjoying our cup of coffee.

So as far as you are concerned the accused comes in there is a chilli atmosphere the two, your ex-wife and the child leave everything goes back to normal and you are sitting there at that stage? --- Yes I was quite happy.

Who was there with you at that time? --- I can only remember that I was specifically talking with Lindiwe but all the other members of the family that he mentioned that I said earlier were also either in the house in front of the house or around.

And you were discussing the weather? --- We were discussing issues not pertaining the accused or my marriage or the children we were discussing matters of no relevance because all of us had enough of the various problems we had a mutual agreement not to mention any issues.

And then what happened? --- Then as I have testified earlier I heard a voice from the outside saying Felix your car.

And who was this person? --- That was as I have only heard the voice I might be mistaken I believe it to be and I was told it to be Boetie Mkona so various bystanders told me but I have not physically seen Boetie because Boetie was outside and I was inside.

Have you, you are well familiar with the family you were in fact married into the family as you said? --- That is correct yes.

We have heard how in the early incident in 2004 you were able to distinguish the accused’s voice, Boetie Mkona did you distinguish his voice on that particular day? --- No.

So on this occasion you could not do that? --- … (intervention)

PROSECUTOR: I think my colleague, Boetie Mkona and the accused is not the same person so I am not following your question.

MR. MURRAY: That is understood your worship I related to the fact that the accused has indicated that he recognised the accused’s voice and this alleged conversation in 2004…? --- Mr. Murray I understand what you are trying to before here once I have a conversation over various sentences a full conversation with accused on the telephone and I could well recognise his voice and the other is a cry from the dark Felix your car. In that split moment I did not recognise the voice and (indistinct) a difference sir.

No that is what I am asking you sir thank you for giving (indistinct). Now did you, you said that you heard from other people that it was Boetie Mkono? --- Ja I was told later on that Boetie came out of the house and saw it.

Okay, did you approach Boetie Mkona to ask him was it you calling? --- No I did not specifically.

Why not? --- Because at the time afterwards there was a lot of blood and a lot of commotion so that did not appear relevant at the time.

You will agree with me that a large amount of time has since gone past since 29 January 2005 in fact over a year. --- That is correct.

Did you approach Boetie Mkona to find out whether in fact it was him who called? --- No.

You did not? --- No and that is for the mere reason since that incident the relations between myself and the Mkona family basically taken a plunge.

Since when has this plunge happened? --- The plunge happened since the very incident that we are discussing here now.

If I may ask you on that pint sir if we accept your evidence and my instructions are that from the defence side we are not to accept that evidence that the wrong was being done to you by the accused why from that date would the Mkona family not have good relations with you. You are sitting having good relations he walks in and you allegedly get attacked from that time on there is not good relations? --- The relations were not good because the Mkonas remains what I consider a criminal matter ambivalent and the Mkonas ambivalence to the law was something I come from a background where we do not have ambivalence to the law we try to follow the law and reinforce the law and the Mkonas ambivalence towards the law separated myself from them.

Sir we are speculating on that point but I put it to you sir the reason why in fact that there may have been a breakdown between you and the Mkonas is the fact that you in fact attacked the accused before court. That you instigated an incident on that particular day? --- I am not aware of this.

Now you hear this voice calling what did you do then? --- I ran outside.

Is anybody with you? --- No at that time I ran outside from the house to the outside where it happened the car was parked 25 metres from the door to the, it is only a very short distance sir.

My question to you is did you run out alone or were there other people with you? --- I did run out alone but the other people obviously immediately following me to see what is happening. But at the time I did not look behind me to see who is following me at the time my eyes were fixed on the accused.

And the scene that greeted you when you came out there if I understand from your evidence was that your car was there all the windows were broken? --- That is correct.

And the accused was making his getaway? --- He was making his getaway he was, the moment I spotted him about two metres away from the car with his back facing the car so he was running away from the car.

So you in fact surmised that he was the one who broke those windows? --- So it would appear if somebody runs away, is two metres away from a scene of crime and he is equipped with a iron bar and the windows are all smashed then one might think that this iron bar relates to the broken windows but I have actually physically not seen the accused breaking the windows I did not physically see that. It could have been somebody else with another iron bar.

You say it could have been somebody else? --- Many people wear iron bars these days maybe the accused was wearing one iron bar and somebody else was wearing another iron bar.

Now where was this iron bar you have mentioned there were a lot of other implements I think you have mentioned? --- The accused by the time I had him on the floor … (intervention)

If we can just take it step for step sir. You had come out you see the windows are broken you see the accused are running away he is approximately two metres away from the car where was the iron bar? --- In his hands.

Left or right hand? --- That I do not know. In fact I do not actually, I did not see the iron bar with my eyes I felt the iron bar on my head because the iron bar caused me a hole in my head therefore I assume the accused had the iron bar on him.

Yes but my questions are very simple to you sir and we need you to paint this picture because you do not seem to have any other person here before court to paint it for us. You come out you see the windows are broken you see the accused running away, two metres away from you and you mentioned to the court that he had an iron bar? --- I did, at the time… (intervention)

Did you in fact see him with an iron bar or you did not see him with an iron bar? --- I did not see the iron bar.

You did not see him with an iron bar? --- No.

You say you then chased after the accused? --- Immediately not then immediately. While it all happened it maybe within two to three seconds it happened very fast I immediately chased after the accused.

So you gave chase immediately? --- Immediately.

You ran straight after him. Now you see at this instance that we go back again to the alleged threats you say you thought that the accused wanted to come with a knife and fire and so on and yet you chased after him. He has just damaged your car you still go running after him why did you not call the police to come and arrest him? --- Because how can the police, you first have to get the man before the police can arrest the man.

I put it to you sir that is a policeman’s job to go and find the suspect to arrest him and to bring him to justice. --- As you know yourself, what would you do you tried, no we are not going to this incidence just leave it there. at the time I felt that I am within my rights to do so you can correct me if I was wrong but I felt it was within my rights to do so.

I out it to you the reason that I find this strange sir this is someone who has threatened you he has already, if we accept your evidence, has already damaged your vehicle and you still give chase after him? --- Yes obviously I mean I wanted to protect my property and myself so whoever is aggressive I try to catch them and bring them in front of the court of law. What I know I believe the matter belongs to.

Now did you call anybody to come to your assistance? --- No but everybody was there. I did not have to call anybody everybody came… (intervention)

Did anybody come to your assistance? You are chasing after the accused did anybody come…? --- At that very moment no I actually, look after I got hit the first time and I fell on the floor as I have said… (intervention)

Sir we will come to that when it is necessary you see the accused running away did you call anybody you said there were people outside the house and people around? --- No I did not call anybody.

So you chased after the accused he has got a two metres advantage over you? --- Not a two metre.

I beg your pardon? --- We did not say two metre about 50 centimetres sir. The police confiscated the iron bar it should be an exhibit actually. All the things were actually confiscated by the police at the time.

Sir, can we just confine ourselves to the evidence that you have relayed before court. What was the distance was it two metres or 50 centimetres as you indicate to the court? --- The accused was two metres away from the car but the iron bar was about 50 centimetres long.

Sir are you sure you understand my English because I put it to you the accused was two metres away from the car was running away am I correct? --- Ja.

And gaining distance all along am I correct? --- He was not gaining, when I fell down the first time we were maybe four metres away from the car this thing happened very fast.

Sir if we can just go back and do it step for step. You come out of the house you see the accused he is running away from your car he is two metres away from you am I correct? --- He is two metres away from the car.

He is two metres away from the car. --- And maybe at the time four metres away from me.

So he is four metres in fact away from you? --- He was two metres away from the car and four metres away from me. the measurements would have been taken from the house obviously the police at the time did not actually do that.

COURT: Thank you the court will then adjourn until 14:00.

COURT ADJOURNS

COURT RESUMES 14:00

FELIX FURTAK: s.u.o.

CROSS-EXAMINATION BY MR. MURRAY: (continued)

Mr. Furtak you remember we are now discussing the second alleged incident that took place on 29 January allegedly 2005? --- That is correct.

Now you mentioned you came out of the house the accused was approximately 2 metres away form your car and four metres away from you as I understand it? --- That is roughly ja.

And you immediately gave chase? --- That is right.

And you initially said that he had an iron bar now you say he did not have an iron bar that you could see? --- No, no I only physically saw the iron bar once I safeguarded the accused I saw the iron bar and all his other weaponry. At the moment when it actually happened it happened so fast I had no time whatsoever because it was a matter of three or four seconds to take any note of anything else.

You only saw the iron bar and you mentioned I think it was acid and things like that? --- Yes both I have mentioned the iron bar a bottle of acid a bottle of petrol and a knife.

That was when you had arrested the accused where were these goods found? --- On him.

But did you see where it was found? --- Physically I did physically see the knife in his pocket the two bottles were laying on the floor and the iron bar was still on him or on his hand but somebody took it off and I did actually at the time made sure that the arresting officer would take all these four items but I am… (intervention)

Did you understand what I am saying now did you in fact see him in possession of those things or were they just close by to him? --- They were physically on his body I would say ja.

Did you see that? --- Ja.

You had to think a moment there did you in fact see these items on him? --- I saw the iron bar itself there were a lot of people around it immediately who took all sorts of things I did even see how somebody actually took his knife somebody even from the family actually took his cell phone even. So I even tried to kind of protect his property like hyenas came over the accused trying to rob him and stab him not stab him but kick him and he was not treated nicely at all by the crowd. But I can say that I saw with my own eyes I saw the iron bar I saw the knife that I physically saw in his pocket. That I actually remember and I saw two bottles.

While we are on the subject do you want to describe to us what this iron bar looked like? --- The iron bar I would say it was a rough iron bar wrought iron rough steel it was like dark it was not chrome or shiny it was a dark rough thing about that long.

For any specific purpose as an engineer you would know for instance you have a crowbar what was it? --- Very rough like a crowbar for example ja but it was not a finished tool I remember it was not a finished tool like a crowbar would be a finished tool with finished ends it was not a finished too as such ja. The police should actually have put this in office the items which I hope.

Now the acid you mention and the petrol in what sort of containers were they? --- The bottles were lying next to him and I have actually physically not… (intervention)

Can you just limit yourself to the questions I am asking sir. You mentioned there was acid was it in a container? --- In a little (indistinct) loose containers bottles like this here.

COURT: Normal plastic fruit juice container is shown.

MR. MURRAY: what type of acid was it? --- I do not know because I was told by the family that I was… (intervention)

I do not want to hear what you were told sir you have told the court today that there was acid in that bottle I want you to tell the court how do you know that there was acid in that bottle? --- Okay I have not verified that myself.

So you are not sure, you have mentioned that there was a further bottle with petrol in? --- Yes that also I have not verified myself that the contents was in fact petrol.

You do not know what has happened to these items? --- I was telling the arresting officer to please confiscate the items whether they have actually physically done so I do not know at this stage.

And more than a year has gone past and you have not bothered to follow up on this? --- I have actually followed up a lot I do actually have the telephone numbers of the arresting officer who should be called as a witness I think he was actually called today in so we have tried to get the city police arresting officers here in court so they can confirm what I am saying ja.

Am I correct in saying that these were very important items and if I understand your evidence before court today you in fact, you told the police about them the city police and that they should have removed it on that day am I correct? --- That is correct.

Am I correct in saying this should be a very important indication of what the accused, if we assume, my instructions are that the accused was not in possession of such items that it would indicate what the accused was thinking of? --- It is obviously very important items that, is correct ja.

Would I be correct in saying that with the exception of the iron bar it would be fairly strange for the police to leave these items out of the statement taken from you? --- Please repeat the question?

If the police did not note this down in a statement that was taken from you it would be rather strange because these are important items regarding the alleged offence? --- It is important items, that is correct.

So it is rather strange if the police do not put this into your statement or did you tell the police about this? --- It should be in my statement I am sure it is in my statement. I am very sure that his is in my statement. As a matter of fact I am looking through my statement right now and it is in fact part of

my statement. I have got my statement here and it says it here.

Sir I see you are waiving a printed statement may I request that I have a view of that statement I am not in possession of any printed statement.

COURT: Sure you are welcome. Okay this is a statement the witness typed himself or had it typed and are you saying you have a copy of a statement that the police then rewrote?

MR. MURRAY: It is just a mater of record your worship I was never made and I assume this came out of the court docket it was never made available to the defence.

PROSECUTOR: Your worship the only statement that the state has in their possession is the statement that has been here all along unfortunately I cannot comment further on what was handed to the defence as far as I know the particulars were handed over on an earlier date and it is not a new statement it has been there all the time.

COURT: Does it differ from the statement you have from this witness?

MR. MURRAY: The statement that was given to me and unfortunately I had no opportunity to correct that, it differs substantially from the statement, the written statement that were provided to the defence. (end cassette 2)

MR. MURRAY: I am in possession of a written statement perhaps it might be an idea to D1 which has been made available to us or A1 it looks like a D. If I can just have a quick look at A1 and perhaps I can... if I may continue your worship just on this point Mr. Furtak it is now a matter of record I requested that an affidavit which you have been referring to in the court it is a typed affidavit and it is typed and I assume on your business correspondence? --- That is correct.

It is Lancier Esads (indistinct) Service CC that is your business? --- It is correct that is my letterhead.

That is your business now you typed this statement out? --- That is correct.

Am I correct? --- And it is signed by a commissioner of oath.

Yes I would differ with you in saying that it is in fact correctly commissioned? --- It was stamped by the Woodstock police station they have done it formally I apologise ja.

I informing you in terms of the rules it would appear that it has not been correctly commissioned. It had been signed by someone who calls himself a commissioner of oaths. Now is this the first statement that you made? --- That is correct.

And did you then provide this to the South African Police Services? --- Yes.

Now I have a statement here sir and unfortunately it would appear once again it is not completed. If I can show you the statement would you just have a look at it I see it has been initialled if you could just advise me whose initials are those at the bottom of the page? --- I do not know this person initials it is certainly not my initials it is also certainly not my statement.

So what you in fact are saying is sir is that the state it was just provided to me from the state’s file that the defence were provided with a statement that is not initialled by you and it is purporting to be a statement that was taking form you? --- All I can tell you is that specific piece of paper has not been initialled by myself that is all I can say.

COURT: Not been written by you but did you actually sign it? --- No it is not my signature.

MR. MURRAY: I see there is an initial down at the bottom there it would appear to be an FF you say that is not your signature? --- May I have another look because I only saw the one in the middle.

There is an X down at the bottom. --- No, no it would appear but my signature is considerably different if you look on the other statement my initial is considerably different.

I see if we have to accept your version that what we are seeing here before court today is that a statement purporting to be part of the police docket A1 was provided to the defence according to your version and you say that is not the correct statement? --- All that I can say is that this piece of paper that you are showing me has not been initialled by me.

We are dealing with the statement am I correct in saying that it can perhaps become a matter of record as well this particular statement A1 nowhere is it reflected in this particular statement that there was as you have in this other statement that you have typed out yourself a bottle of paraffin and a bottle of acid nowhere is it mentioned in this statement? --- The other statement no.

Would you care to have a look at this we can make it a mater of…? --- I have made my statement which was my only statement which I signed and believe to have truly commissioned so.

So you cannot enlighten the court as to this? --- No I do not know where it comes from you must clear up but I cannot say anything about this piece of paper.

I see, I see the second statement was made on 16 February 2005 is that correct? --- If that is the date on there then it will be correct.

Am I correct in saying that this 16 February is perhaps in excess of two weeks after the alleged incident? --- In excess the 16^th of February instead of the 29^th January therefore February is in excess of two weeks yes it is correct.

That is what I am putting to you I want your confirmation? --- Yes.

Yes you had time to think about what you wanted to say? --- Yes.

Now if we can go back to the incident of 29 January 2005 you come out you see the accused approximately two metres from your car he is running away depending on your vision at this stage of the proceedings you did not see anything on him and you gave chase behind the accused? --- That is right.

Now the accused is running away you are ran after him how far further did you run? --- I would say when the first time when I had my first slash on the head that was maybe only another two or three metres it was virtually instantly.

Sir, you are chasing after the accused do you have him in your sight is he in front of you obviously? --- He is in front of me. I am facing his back.

Yes now you are running after him? --- That is correct.

And then what happens you are running the two of you one behind the other? --- I am running trying to catch him and then I fall down on the ground.

You are trying to catch him and you fell on the ground? --- I fell on the ground I was hit on the head and fell on the ground and we have a J88 document.

With all due respect sir I am trying to make logical sense and you are an engineer you are a person of some education…? --- I do understand it appears now difficult how somebody who runs in that direction can hit somebody who is behind him. That I do agree there is a logical… (intervention)

You do agree there is a problem with that? --- I do there is a logical problem I do agree with it.

That is in fact what I am trying to establish from you sir. You were there we were not there. --- All I know is that I did fall on the ground and it happened so fast I do not know there I would need some psychological advise and how far I can be expected to happen, everything happened within three seconds it was very fast.

So the version that you are giving and I pout it to you sir that as an engineer the discipline that takes in a lot of logic, the logic would inform us if you are chasing after the accused there is no way that the accused could have been the person who hit you on the back of the head because his back is facing towards you? --- Logic would assume that another unknown person was in fact behind me and hit me here that makes more sense on the other hand we do not really know what other person should have been behind there. The accused could have turned around I mean he could have turned around and just (indistinct) the bar I mean it is quite possible ja. I mean you run and you go like this and bang the bar behind you and hit somebody it is quite possible it is not impossible. I speculate I mean I fell on the ground I was hit on the head and I fell on the ground that I know.

I cannot establish why you find it is so difficult in a logical sequence you are chasing after the accused then you get hit on the head and you fall? --- Ja.

I put tit to you once again before I leave this point that it is impossible for the accused to have done so? --- It actually not so because you can turn around and hit behind you it is quite possible.

Now you, if we accept the fact that you were hit over the head and then you collapsed on the ground where was the accused then? --- He was running further away.

And then what happened? --- I managed to get myself together get up from the ground and it took me approximately another three or four metres to finally catch him. I do not know at what point he actually hit my chest at what point that happened I cannot remember. I know that the rib was broken but I do not know when exactly in the chain of events he did actually hit, the second time on the nose and on the, so it must have been one two, he must have hit, three injuries therefore… (intervention)

We do not want to hear must have I want to find out exactly what happened. Okay you say you get up you say you have been hit over the head you get up and you carry on chasing the accused? --- Ja.

What happened then? --- Then I managed to grab his neck and put him on the floor on the ground.

I see. And were you helped by anyone? --- Later on people liken Clive that I mentioned earlier came from the house and he chained not chained what do you call it tied the accused up so he could not escape anymore. When did you discover that you had been injured in the nose and in your ribs? --- Only when I came to the clinic, when I came to the clinic the I saw obviously I was told I had a hole here which I cannot see myself and the nose I saw in the mirror and the rib I only noticed as I have said earlier three days later when I had very severe pains.

So once again sir I put it to you that logic would inform us that it is an extremely painful situation to be hit on the nose am I correct? --- Ja.

Perhaps one of the more painful places on the body when you get hit. --- Ja.

An extremely painful situation when one has one’s rib broken am I correct? --- Ja.

And you are going to tell the court today that between the time that you were hit over the head and knocked down and the time that the accused was arrested you cannot tell us exactly when these blows happened or how they happened? --- Look it was adrenalin and if you would actually get medical advice that you know that the moment a person is under adrenalin you will not feel any pain at all. If you have a little bit of medical knowledge you should know that.

That is your opinion sir. I put it to you sir the fact that you cannot state these things is because in fact the events did not happen on that day as you have suggested to the court today.? --- That is you suggesting that. The events most certainly happened exactly the way that I told it.

My instructions before court today are that in fact my client when he came to the scene arrived to find his own biological child sitting in your car. --- That unfortunately was on a different day. There unfortunately your client is mixing his dates up because that was two weeks preceding that event. Your client unfortunately mixes the dates up I am aware of that event.

On that point sir what were you doing with his child in your car? --- You mean two weeks earlier?

Yes. --- That is not part of the case now.

Sir I am asking you a question what were you doing with his child in your car because I need to establish the circumstances because it is circumstances that is being suggested to you? --- Look two weeks earlier I got in fact there at the same place with my car and the child together with other children entered my car and was playing in the car where I had no objections to.

My further instruction sir on this particular day was that he was concerned because of the fact that you had taken the other child that his child would be going as well and he took his child out of your car closed the door and then you came and gave chase and attacked him that is the accused? --- On this specific day the child that he is referring to as his child was in fact with the mother in the shack in Philippi the child was not even there. so that cannot be true at all he is mixing up two events what he is telling you is an event that happened two weeks prior and in this, it maybe caused his anger and this was maybe a situation preceding the other event but they were factually roughly two weeks apart.

My further instructions sir is that you approached the accused you took him by the throat and you began to assault him? --- The fact hat I gave chase to the accused I grabbed his neck and pull him to the ground and therefore safeguarded him but by no means ever attacked him.

My further instructions sir is that the accused tried to get away from you? --- He did not have a chance.

Precisely he said he could not get away from you he did not have the chance in fact he logged a stone in your direction to try and ward you off because he feared you, you then got hold of him you began to assault him and the only way he could stop your assault was by hitting you with a bar. --- This is wrong.

My further instructions sir are that on this particular day that the accused was assaulted to such an extent that he had to be hospitalised himself? --- I do in fact have a copy of police statements as far as the condition of… (intervention)

I am putting it to you and I do not want you to refer to other copies that may be floating around in your own purported investigation, sir I am putting it to you that the accused himself was assaulted on that day and he had to be hospitalised. Yu cannot deny that? --- I do deny that yes.

I beg your pardon? --- I do deny that.

Sir if other witnesses come and testify in court today to say or at some later stage come and testify and say that the accused was hospitalised on that day they are wrong or are you wrong? --- I have a record that he in fact was at the day clinic but there was no major injuries found and hew as released immediately. That is the record that I have.

Well he was taken to hospital. --- That is correct.

Because he sustained injuries why else would you go to hospital once again simple logic. --- Ja there was in fact that is both he is (indistinct) with the blood HIV problem because the accused is HIV positive and we were both bleeding so there is a very unfortunate matter why the blood is quite relevant here. But I was not infected so.

Be careful with your words there sir. Just a final aspect do you deny that the accused was injured on that day? --- I am not denying that he was injured but I deny that I injured him or assaulted him that during our fall on the ground he might have sustained an injury that is possible that I do not deny but I deny that I assaulted him or injured him. I had no weapons and I did not even use my fists.

My instructions are that you in fact assaulted him on this particular day? --- That is not correct.

Now going back to the first incident you mentioned that Molly Allison was in a different room am I correct? --- She was in the bedroom but I was in the office.

How did you get to switch on the phone did you in fact go to where she was or did she come to you? --- No she came to me.

Did you call her across? --- I did call her across.

What did you say to her? --- I said Molly come.

Did she ask you why or what the reason was? --- No I put her immediately next to me switched on the speaker phone I might have said to her listen or something to that effect ja.

Now you said that you sustained damages to your vehicle you mentioned it was a Lancier Fuvia in the region of what was it? --- I estimated it for R13 000,00 but it is a rather arbitrary because the car cannot just be repaired.

What sort of damages were sustained? --- All the glass was broken the dashboard was broken and two chrome beadings were broken. All the glasses overall six it is eight, eight pieces of glass.

What other damages were sustained you are saying the glass the dashboard? --- The glass the dashboard and two of the chrome beadings around the glass.

Have you repaired the vehicle? --- Partially I have got all the side glasses are repaired I am now waiting for the rear and the front screen.

Did you repair it yourself? --- Yes.

Did you personally do any panel beating work? --- Yes sir.

Now you mentioned in court that the parts that you got to make the necessary repairs you obtained them from your own sources? --- From my (indistinct) me as the driver of the car are the only person in South Africa who can repair it but it is just a coincidence.

My question to you, you were the person who repaired the car? --- Yes that is correct.

Now I would assume that you are a businessman? --- I am trying to.

Yes and this you are running it as a business? --- That is correct.

Are you registered with the South African Revenue Services? --- Most certainly.

As a business? --- That is correct.

And you are obviously aware of your responsibilities as far as your responsibilities towards the South African Revenue Services are concerned? --- Most certainly.

Now you repaired these from your own sources the vehicle? --- That is correct.

Did you make an inventory of your repairs? --- Yes most certainly.

Did you provide that to the state? --- We have the, the state has got a copy of the estimate of the repair I detailed all the parts in detail that I needed fort the repair of the vehicle and the prosecution should have a copy of that. I can provide you with a copy if want to.

I have got a copy at this late stage you appear to have a copy now in your own possession. Sir do you make the necessary inventory of your repairs? --- Yes.

And to this stage it appears that the state was not provided with that? --- You mean the inventory of my stock inventory?

Yes your stock inventory. --- My stock inventory is masses I hold the biggest sort of spare parts for Lanciers in the southern hemisphere.

But you are aware of the fact that you are required to keep an inventory? --- Yes I know I do, we do have you can go to lunch at (indistinct) there is a complete inventory available for your perusing.

Now this matter has been a long time coming to court am I correct? --- That is correct.

Have you attempted to have any contact with the accused since that time? --- No. the accused actually phoned me about two weeks ago but I never contacted him. Actually now I am lying sorry I am under correction while the accused was actually in Pollsmoor I wrote him two or three letters with cigarettes vitamin tablets and some positive words. But the accused never responded to these letters. Okay to be correct I have however had served an interdict against the accused about a year ago.

Yes it would appear that the accused who has recently he was released from imprisonment has been keeping to the interdict. You say that you tried to contact the accused in Pollsmoor? --- No it was long, it was the first time he was in prison twice and I had in fact the first time sent him two letters with some goodies for himself and asked him to get in touch with me but on the second imprisonment term I did only I think he got the interdict served which was not personally by me but obviously by the clerk of the curt. Two weeks ago the accused phoned me again.

Now on that aspect my instructions are that you have in fact been sending SMS messages to the accused as well? --- That is correct. I omitted that my apology that is in fact correct.

Am I correct in saying that in these SMS’s you have said that you are going to sort out the accused’s problems with this current case before court if he assists you? --- No I have never said that. The accused had asked for that. The accused has in fact offered to return the wife and the baby if he gets acquitted in that case. But as it is obviously in the court of law it is hilarious I did never entertain that offer.

My instructions are that you have been SMS-ing the accused offering to withdraw this case if he can sort out the problems between you and your ex-wife his companion at the moment the mother of his child? --- I do in fact have copies of these SMS’s so I do not recall them but this can be verified. I would have to get the copies of the SMS’s.

My instructions sir are that at no stage did he ever offer and he puts it most vehemently that he would never offer to give his biological child to you at any stage that in fact this whole problem started with you attempting to take the child from him and that was how he tried to retrieve the child from your car? --- Sir I never had any intention of taking any biological child from him so I do not know.

Thank you your worship no further questions.

NO FURTHER QUESTIONS BY MR. MURRAY

RE-EXAMINATION BY PROSECUTOR:

On this specific day when the incident of the car happened was the baby in your vehicle? --- No as I stated earlier my ex-wife and the baby was going away with the accused to the shack of the accused in Philippi. According to a statement that I have from another witness they were both locked up in the shack while the accused then came back to the scene. The baby was in fact two weeks earlier on a prior visit with a different car has indeed played inside the car and that in fact is true.

And have you at any stage ever attempted to take the