JUDGEMENT

        The accused Mr. David Paolo is a 34 year old male according to the charge sheet. The accused is charged with three main counts, count 1 is one of attempted murder. The allegation is that on 29 January 2005 at Guguletu he attempted to kill Felix Furtak by hitting him with an iron bar.

        Count 2 is one of malicious injury to property with the allegation that also on 29 January 2005 at Guguletu he intentionally damaged Felix Furtak’s motor vehicle. Then main count on count is one of contravention of section 1 (1) A of act 72 of 1982 intimidation with the allegation that the accused threatened Felix Furtak on 24 July 2004 at Woodstock and intended or compelling him to abstain from doing something to wit release Miss Pat Mkona.

        Count 3 has an alternative to it being common assault with the allegation that he threatened to kill Felix Furtak on 24 July. The accused has been legally represented by Mr. Murray throughout the trial and pleaded not guilty to all three counts. The state led the evidence of Mr. Furtak and two other witnesses while the accused testified in his own defence.

        I am not going to summarise the evidence fully. To understand the proceedings better it is necessary to place on record that the accused was a boyfriend of a Miss Petronella Mkona. They were in a relationship at some stage. Mr. Felix Furtak our complainant then married Miss Petronella Mkona. They got divorced just over a year later. No children were born from that marriage. Miss Petronella Mkona had a child at that stage.

        After that stage Miss Petronella Mkona had a relationship with the accused again. It is the accused’s case or part of his case that a child was born out of that relationship. I will refer to that child as the younger child in this judgment. It is common cause that there had been ill feelings between the accused and Mr. Furtak for many months or years.

        With that as background Mr. Furtak testified that the accused called him at home on 24 July 2004. At that stage Mr. Furtak was already divorced from Miss Petronella Mkona. Furtak said that the accused told him that he must not mess


around with his girlfriend referring to Petronella or he that is the accused will come to his house with fire and a knife.

        Furtak explained that he knew that the accused meant that he will set his property alight or do bodily harm to him. Furtak said that he realised that he would need a witness after hearing this threat and he called Miss Molly Allison to the phone to listen to this conversation.

        Miss Allison was working for Mr. Furtak at that stage. When Miss Allison arrived at the phone Furtak put the phone on speaker phone and pretended not to have understood what the accused said and requested him to repeat what he said. He said the accused did repeat what he said. He and Allison then went to police station to report this.

        Regarding the other incident he testified that on 31 January 2005 he went to the Mkona’s house. A family member of the Mkona’s has died and it was supposed to be his funeral on that day. When he got to the Mkona’s home he heard that the funeral was cancelled or postponed should be a better term.

        He said that he decided to stay and talk with the people present. He said that the accused who was present in the house asked Miss Petronella Mkona to accompany him out. The two of them with the younger child then left. Furtak remained inside the house with Petronella’s sister Miss Lindiwe Mkona one of the state witnesses and other people.

        Some time later he heard somebody shouting Felix your car. He was later told or he was under the impression that it was Mr. Boetie Mkona who called him or drew his attention to what was going on outside. When he left the house he saw the accused running away from his car that is now from Furtak’s car.

        He said the accused was approximately two metres away from his car. He tried to chase the accused to press charges against him as all the windows of his car were smashed. While chasing the accused he felt a big blow to use the term use din court on his head and Furtak fell to the ground.

        He managed to get onto his feet again and get hold of the accused. Regarding this blow to his head he testified that he later saw that the accused had a steel iron bar in his hand. He cannot recall how many times he was hit on the head but he had a five centimetre laceration on his head. Furtak had no weapons on him he testified.

        He said the accused also had a bottle of acid or petrol and a knife with him. Furtak testified that his car was a 1969 imported Lancier the only one of its kind in South Africa. Furtak restores vintage vehicle. He says these parts are not readily available in South Africa and at the time when he testified he has only replaced the side windows the front and rear windows were not replaced yet. He estimated the damage to be between R12 000,00 and R13 000,00.

        He testifies that the accused was also attacked on the scene. Furtak went to the hospital after the incident and the injury or laceration on his head was stitched. He also had an injury to the nose and it was later found that his rib was broken.

        During cross-examination it became clear that the older child was living with Furtak at that stage. It is clear or it was testified that Furtak got custody of Petronella’s older child and that he wanted maintenance for this child from Petronella. It was put to him that he had Petronella incarcerated for not paying maintenance. He said that he knew that there was a warrant for her arrest authorised by a magistrate as she did not appear in court for the maintenance inquiry.

        It was put to him that the accused had no reason to contact him to which Furtak replied that if Petronella paid him maintenance the accused would have had less money in his pocket being her boyfriend at that stage. Regarding Miss Molly Allison she testified during cross-examination that she knew the accused for years as she has lived with Petronella’s family and has known the accused as Petronella’s boyfriend.

        It was put to Furtak during cross-examination that the accused did not make these threats on the phone. It was added that he might have spoken figuratively and that he did call Furtak on that day because Petronella had been locked up. Furtak denied that.

        Regarding the exact words that were uttered by the accused Furtak said that he cannot remember the detail as he did not make notes and did not refresh his memory from those notes. Regarding the vehicle incident Furtak testified that he was at that stage still the custodian of the older child (at the time when he gave evidence in court he did not have custody of this child anymore).

        It was put to him that the accused will deny entering the Mkona’s house at all that day. It was put that he only went to the house to collect Petronella and the younger child and that he did call them and that they all then left. It was also put to Furtak that Furtak wanted to take the accused’s child that is the younger child away from him. Furtak denied that.

        Regarding the broken windows Furtak testified during cross-examination that he did not see the accused breaking or smashing the car windows. He surmised that it had to be the accused as the accused had an iron bar in his hand and was running away from the car.

        According to him the police did confiscate this iron bar. He indicates in court that the iron bar was approximately a half a metre long. He only saw this iron bar when he caught the accused. Asked how he knew there was acid in the container the accused had with him he said that he has heard that.

        It became clear during cross-examination that there was a major problem with the police statements that was furnished to the defence. It seems as if somebody has forged Furtak’s signature on this statement and that Furtak has typed out his own statement and signed his own statement which was given to the police which was not the same statement that was provided to the defence from the docket.

        Asked how it was possible for the accused to have hit Furtak without Furtak seeing it. Furtak concedes that there is a problem. He says that it is possible that the accused could have turned around and hit him but he is only speculating he did not see that or cannot remember that.

        He cannot remember or he does not know when the accused hit him on his chest but his rib was in fact broken. It was put to Furtak that when the accused arrived at the Mkona’s home the younger child was sitting in Furtak’s car and that the accused was unhappy with that fact.

        Furtak says that that incident happened two weeks earlier and that the accused is confusing these two incidents. It is put to Furtak that Furtak approached the accused after the accused took the child from the car. Furtak then grabbed the accused by the throat and assaulted him and that the accused then in his own defence had to hit Furtak with a bottle to get away. Furtak denies all this.

        The second state witness was Miss Molly Allison. She confirms that she was working for Furtak at that stage and corroborates Furtak regarding this phone all and contents of the phone call. According to her the accused said I will get you I will come to your place with fire or I will kill you.

        She confirms that she and Furtak then went to the police. Regarding her relationship with the accused she said she never had problems with the accused. Regarding her relationship with Furtak she said that had a problem with Furtak as Furtak threw her out of his home after some incident. At her time of giving evidence she was not cross with Furtak anymore. Suring cross-examination she conceded being a friend of Furtak at the stage the call was made.

        The last state witness was a sister of Miss Petronella Mkona Miss Lindiwe Mkona. Miss Lindiwe Mkona testified that it was indeed supposed to be the funeral of their half brother on that day in January. According to her Furtak the accused her other sisters and other people were all present that morning at their home.

        The accused and Petronella left at some stage and approximately an hour later Miss Lindiwe Mkona heard a noise from outside. As she was sitting next to a big window she could see outside and saw that it was the accused with a piece of iron smashing Furtak’s car. According to her the accused also had a plastic bag with a bottle inside with him.

        According to her Furtak then went outside as he approached the accused the accused hit Furtak with this iron bar. Furtak then fell down. The accused wanted to hit him again and Furtak then got hold of this iron bar. Furtak then assaulted the accused. She later went with Furtak to the police station.

        She corroborates Furtak on the issue that all the windows of the car were smashed. Although Furtak had a head injury he was able to drive himself to the doctor. During cross-examination it became clear that this witness too made more than one police statement. It seems as if she has made a statement to the city police the day of the incident and that another statement was taken on 26 August 2005 by the SAP.

        She testified that Furtak did not attend the funeral which took place the next week as he was still in pain. It was put to her as well that the accused only came there to fetch the child which was there and that he then found the child in Furtak’s car. According to her the child was indeed in the room and not outside.

        It was put to her that Furtak testified that it was her brother Boetie Mkona who drew attention to the fact that something wrong was happening outside. She says that Furtak was making a mistake as she raised alarm. It was put to her that Furtak testified that the accused was running away from the vehicle when Furtak was chasing him.

        She says that after Furtak fell the accused did get a chance to run away and was then chased. It was put to her that the accused would deny having a container with him. The state indicated that they had a J88 form regarding the injuries of Furtak available but that the doctor who compiled this report was not working at that hospital anymore.

        Mr. Murray did not concede to the contents of this report and the report was then not handed up. That in a nutshell was the state’s case. The accused then testified. It is clear from his evidence that there were indeed problems between him and Furtak in the past.

        According to him Furtak laid a charge against him and Petronella at the social worker regarding the younger child. He testified that he did call Furtak but did not threaten him. He only told Furtak to leave and his family alone referring to Petronella and their child.

        Regarding the incident on 29 January he testified that he went to the Mkona’s home this morning. The reason was only to take Petronella and the younger child home to Philippi where he stays. He then indeed took Petronella home. He saw or when he arrived there he saw the daughter in the car of Furtak and he took the child out of the vehicle.

        Furtak must have seen that and called the accused and smacked the accused. He testifies that he ten took a piece of stone and threw it at the complainant. it seems as if the stone or a quarter of a brick did not hit Furtak but hit a window of the vehicle.

        He and Furtak then started fighting. He denies using an iron bar. He says he was then assaulted by people who came as well and lost his consciousness. He testified that he did have a container with him containing a toilet cleaner.

        During cross-examination he says that the Mkonas did not allow him or would not allow him inside their home at that stage as Petronella’s family did not like him. He picked up this stone or part of a brick after he was slapped. He was dizzy at that stage and just took the younger child out of the car.

        According to him only the one window of the vehicle was broken. The court received by agreement a medical certificate relating to the injuries of the accused on record as EXHIBIT A. the doctor examining the accused listed several injuries to the accused body and concluded by saying that this was consistent with an assault. That in a nutshell is the evidence before court.

        The prosecutor argues for a conviction on all three counts while Mr. Murray argues for an acquittal on all three counts pointing out that there are several issues that were not dealt with properly in this case. Mr. Murray concedes that the accused’s evidence was not satisfactory in all aspects.

        He draws the court’s attention to the fact that no medical evidence was led regarding Furtak’s injuries and describes the evidence as cloudy. Regarding the evidence from state side it is indeed true that the evidence is not crystal clear. Mr. Murray is correct in his submission that certain aspects could indeed be described as cloudy.

        Even from the relative short summary of the evidence it should be clear that there are indeed aspects which are not perfectly clear. It would indeed be a wonderful day in our criminal courts if witnesses were able to give crystal clear evidence in all aspects in all cases.

        But because they very often testify months or even years after events and because police statements are often of a very poor quality that very seldom happens in our courts. Regarding the evidence of Mr. Furtak I also agree with the submission by Mr. Murray that Mr. Furtak was indeed a man of many words.

        One has to understand the relationship between him and the accused and it is abundantly clear that there had been ill feelings between the two of them for a very long time. It is clear that Furtak would have taken any opportunity to paint a bleak a picture regarding the accused as possible as he clearly did not like the accused.

        I do however think that Furtak was an honest witness. The clearest example of this was his evidence that he actually did not see the attack on him this day. If Furtak was willing to lie under oath because he did not like the accused it would have been very simple and easy for him to have said that he actually saw the accused turning around and hitting him with this iron bar.

        Furtak did not do that and concedes that in his own evidence creates a problem if he did not see this attack by somebody who he was chasing. Some of the criticism that was levelled against the state case can easily be explained.

        For instance regarding the whole issue on whether it was Boetie Mkona or Miss Lindiwe Mkona who drew the attention of Furtak to the happenings outside. It is clear that more than one person could have shouted or made alarm. One also has to take into account that what happened the day of the car incident was clearly a traumatic incident for everybody involved.

        Not only was it supposed to be the funeral of a family member of the Mkonas but was there a fight outside their house of some incident. As to detail of who was where and at what time one should take into account that the attention of for instance Miss Lindiwe Mkona would certainly not have been on who was where at what time but take into account that her mind would probably have been somewhere else as it was supposed to be the funeral of her half brother that day.

        It is indeed of significance that Furtak was corroborated in most of the allegations that he made against the accused. Regarding the possible problem regarding the issue whether Furtak was chasing the accused before the assault if compared to Lindiwe’s evidence that the assault took place at the vehicle we have to take into account that even on Lindiwe’s evidence the attack took place very close to the motor vehicle.

        According to Furtak also close to the motor vehicle he was talking about approximately two metres or chasing the accused for approximately two metres only. In short I am of the opinion that none of the inconsistencies or problems referred to by Mr. Murray are indeed serious problems in the state case. They could hardly be described as material contradictions.

        This is the type of difference in evidence that one would expect when witnesses testify several months or even years after an incident. Especially when there was not a proper police statement taken immediately from which the witness could refresh his or her memory.

        Regarding the incidents in chronological order and not in order as put on the charge sheet, the court is of the opinion that Furtak is indeed corroborated materially by Miss Allison regarding the phone call on 24 July 2004. I agree that Miss Allison cannot be described as a completely objective or independent witness as she has worked for Furtak at that stage.

But it was significant to hear that she left the employment of Mr. Furtak under negative circumstances. I find it very hard to believe that after she was put out of Furtak’s house with her child that she would still come and lie under oath for Furtak or on Furtak’s behalf in this matter.

        She clearly had no problems with the accused before and there would be no reason for her to come and lie under oath. I have also find that the probabilities are in favour of the state case and against the accused in this regard.

        Given the fact that there were in fact problems between the accused and Furtak for some time and taking into account the fact that Furtak claimed maintenance for the elder child that was in his care at that stage I find it very probable that the accused was extremely annoyed with this set of affairs.

        I find it more than likely that he would have indeed called Furtak to stop interfering in his household. As the interference went even further than interfering and even possibly involved incarceration of Petronella I find it very likely that some form of intimidation from the accused’s side did in fact take place.

        Although there is some doubt as regarding the exact words that were uttered by the accused this specific day I am satisfied beyond reasonable doubt that the idea of the phone call was to threaten Furtak to stop interfering and stop claiming maintenance from Petronella. The threat being that if it was not stopped that the accused would indeed either set his home alight or physically assault him.

        I am satisfied that the accused’s denial in this regard is not reasonably possibly true. I am satisfied that this does in fact constitute intimidation as envisaged by section 1 (1) A of act 71 of 82.

        Regarding the second incident I am similarly of the opinion that Furtak is corroborated on material aspects by Miss Lindiwe Mkona. I find Miss Mkona’s evidence to be of a good nature. Certain aspects on which she might not have remembered detail should be judged against the fact that she was clearly having stress that day as it was supposed to be the funeral of her half brother that day.

        I similarly find the accused’s version of what happened this day to be not reasonably possibly true. I find it extremely strange that very important issues of the accused’s case were never put to Furtak or Miss Mkona. The probabilities again are in favour of the state case and against the accused’s case regarding this incident.

        I find it very probable that the accused being very annoyed at that stage that Furtak would still attend a family funeral was present that day. And find it extremely unlikely that somebody else would have smashed Furtak’s windows. On the accused’s version only one window could have been broken by a brick that was thrown by the accused.

        He did not attempt to explain how all the windows got smashed. I find that Miss Lindiwe’s explanation of how these windows got smashed was in fact the truth and that it was the accused who did that clearly out of spite and to get back at Furtak for not leaving the Mkona family alone.

By smashing the windows of a motor vehicle and a relatively expensive motor vehicle with an iron bar the accused clearly committed malicious injury to property as envisaged by count 2. Regarding count 1 the court finds that the accused did in fact hit Furtak once with an iron bar on the head.

On the evidence of Miss Lindiwe Mkona the court also finds that the accused attempted to hit Furtak a second time after Furtak fell. Mr. Murray is correct in his submission that we do not have medical evidence regarding the seriousness of the injuries Furtak sustained this day.

        I am however of the opinion that any person in his or her right mind if it is an adult person would indeed at least foresee the possibility that a person you hit with an iron bar on the head might sustain such serious injury that that person may die later.

        There is no suggestion from the defence side that the accused was not at his sober mind this specific day and the court finds that as an adult person he did in fact foresee the possibility that by hitting Furtak with this iron bar Furtak might sustain such serious injury that Furtak may die as a result thereof.

        We are of course not in a position to make a finding regarding the exact nature of the injuries sustained as we do not have medical evidence in this regard. I however want to emphasise that for a charge of attempted murder to be proven one does not necessarily needs medical evidence. Common sense would often dictate the simple example which we often


deal with in our regional courts is where a complainant is shot at and completely missed by an accused in which case attempted murder could easily be found without any injury at all.

        The court is satisfied that the state proved its case although with a few problems in it beyond a reasonable doubt and finds that the accused was in fact a lying witness regarding these events.

        The accused is accordingly CONVICTED on all three counts as put on count 3, specifically on the main count of intimidation as put.

ACCUSED HAS NO PREVIOUS CONVICTIONS

MR. MURRAY ADDRESSES COURT BEFORE SENTENCE

PROSECUTOR ADDRESSES COURT BEFORE SENTENCE

                                     SENTENCE

        In assisting the court to arrive at an appropriate sentence the defence placed the following personal circumstances of the accused on record: the accused is currently 36 years old. He is a national from Angola or a citizen from Angola but has been is permanent residence in South Africa after coming here as a refugee since 1993.

        He attained the equivalent of our metric n Angola. He still has family in Angola and sends money there on a regular basis when available. As heard during evidence he fathered a child

 


with Petronella. The accused has been incarcerated on another case and is currently awaiting trial on the other case.

        Before hew as incarcerated he earned approximately R500,00 per week net profit from buying and selling clothing. He has no previous convictions.  It is conceded by Mr. Murray that he accused was convicted of serious crimes. Mr. Murray however emphasises that the court should take into account the built up to especially count 1 and 2.

        He submits that there was in fact some provocation in the manner that Furtak dealt with Petronella and the child. Mr. Murray suggests that one should not accept that the attempted murder and malicious injury to property was a result of the 2004 intimidation. He suggests that that intimidation might well have been an empty threat.

        It is common cause that Petronella and the younger child have since passed away. Mr. Murray suggests that in light of this fact there is no real possibility that this type of behaviour could be repeated as the route course of the problem has disappeared.

        It is placed on record that the accused is HIV positive. He is not getting adequate medicine at Pollsmoor at the moment. Mr. Murray emphasises that Mr. Furtak clearly recovered from his injuries. He emphasises the fact that the accused has been in custody now for several months awaiting trial.

        He concedes that a suspended sentence might not be proper in this case especially in the light of the fact that the accused will probably still be in custody for some time awaiting trial on the other case. Urging the court to take into account the provocative circumstances of the events the defence requests that the court will basically sentence with mercy.

        No address is given regarding the fitness of the accused to possess a firearm in terms of section 103 (1) of act 60 of 2000. Mr. Breyl for the state emphasises the seriousness of the offences and indicates that the accused clearly has no remorse. He concedes that the accused as a first offender has favourable personal circumstances but suggests that direct imprisonment is the only suitable sentence.

        Mr. Paolo the court did not make the finding that the damage to the vehicle or the assault on Mr. Furtak was a result of the phone call in 2004. I fully agree with your attorney that one should avoid jumping to that conclusion hastily. I like him got the impression that the incident in January 2005 was not planned at all and will I not find as I did not find during judgment that this was as a result of the phone call in 2004.

        This is an important finding as it suggests that the threat in 2004 was just that a threat. And it further suggests that what happened in January 2005 could have happened on the spur of the moment without any planning. I further agree with your attorney that the background of this matter is of extreme importance.

        This type of jealousy because that is what it boils down to at the end is extremely common in our criminal courts. Very often we deal with extremely serious murder cases in our regional courts which resulted out of love triangles. This is clearly the background of our case too.

        You and Mr. Furtak both wanted Petronella and that was the route cause of what happened. Too often unfortunately very serious crime is then committed when people become jealous of other people. Although I will accept that the threat in 2004 was just that a threat one has to emphasise the fact that what you did in January 2005 was completely unacceptable.

        I will accept that there was a lot of frustration in your mind at that stage and I will accept that the fact that you were diagnosed to be HIV positive could have played a role too. But to smash somebody else’s car windows without any good reason is completely unacceptable.

        That is the type of behaviour we expect from school children not from adults like you. Had it stopped at damaging Furtak’s car I might have said that I could understand what you did. But it went much further you seriously assaulted Furtak as well.

        I say seriously knowing that we do not have any medical evidence on record but the probabilities are there that Furtak could have sustained serious injury if he was hit once or more than once with an iron bar on the head. Courts warn often against this type of senseless abuse of power.

        Regarding sentence the court takes into account that you are a first offender and that you do indeed have favourable personal circumstances. It seems to be common cause that you will still be in custody for some time to come awaiting trial on the other case.

        It is indeed relevant that you are HIV positive. I would not be surprised to learn that the fact that you are currently awaiting trial prisoner in Pollsmoor would be the reason for you not receiving proper medication at Pollsmoor. I would not find it strange if their policy would be to only subscribe this type of medicine to people who are sentenced prisoners and not only awaiting trial prisoners for obvious reasons.

        I am of the opinion that direct imprisonment is indeed called for today. I do not have lengthy imprisonment in mind and I think that direct imprisonment would benefit you in another way as well. Being that you will hopefully have easier access to HIV medication if you are sentenced and not only awaiting trial.

        For these reasons the court has decided to impose imprisonment in terms of section 276(1) (i) of the Criminal Procedure Act. Usually people sentenced under this section are released after serving only a very short portion of the imprisonment imposed.

        But should you still be in custody the benefit would still be there that you are sentenced and is it the intention of this court that you will still be illegible for medication in Pollsmoor while you are awaiting trial on the other case. I have also decided to take the three counts together for purposes of sentence.

        I know that this is not done often especially in light of the fact that we are dealing with two incidents and with a statutory offence on the one side and two common assault offences on the other side but am I of the opinion that the built up as explained by your attorney during address is clearly of relevance.

This is one case at the end we dealing with your frustration with Furtak and the manner he dealt with Petronella and the child. Therefore the court will indeed take the three counts together for purposes of sentence.

        All these aspects then taken into account and the three counts taken together for purpose of sentence you are in terms of section 276 (1) (i) of act 51 of 1977 sentenced to THREE YEARS’ IMPRISONMENT.

        The court makes no finding regarding the provisions of section 103 (1) of act 60 of 2000 which means that you are unfit to possess a firearm. Your attorney will explain to you that you do have the right to apply for leave to appeal against


this conviction and sentence. If you do not have funds for Mr. Murray anymore you may apply for Legal Aid should you want to apply for leave to appeal. But I want to emphasise that you only have 14 days from today to approach the court with such an application should you want to apply for leave to appeal. Do you understand the sentence and what I have explained.

ACCUSED: I do your worship.