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.