4 March 2019

South Africa: Here's What the Law Says About Members of the Public Opening a Criminal Case, If a Victim Does Not

Photo: SABC Digital News/YouTube screenshot
Mandla "Mampintsha" Maphumulo. and Bongekile 'Babes Wodumo' Simelane.

Following the surfacing of video footage showing "Gqom Queen" Babes Wodumo, real name Bongekile Simelane, allegedly being assaulted by her partner Mandla Maphumulo, popularly known as Mampintsha, questions have been raised about whether it is possible for members of the public to open a criminal case on behalf of the victim in such a matter.

According to one expert, it is possible for a private person or a group representing certain individuals, such as political parties or solidarity unions, to report a criminal case if it is believed it constituted criminal conduct worthy of an investigation.

Criminal law expert and associate partner at HJW Attorneys Jonathan Botha said the public interest defence could be used in such a case.

Worth investigating

Botha said once the case has been opened, it is up to the police to determine whether the reported incident is worth investigating.

"While SAPS (South African Police Service) may indeed decide to investigate the alleged incident, the laying of formal charges or opening of an actual case will depend largely on the victim of the alleged incident and whether or not he or she is willing to cooperate with the police in their investigation," Botha said.

A video went viral on Monday morning showing kwaito artist Maphumulo allegedly beating up Simelane on a live Instagram video.

Botha said that prosecutors would have to rely solely on external evidence of the alleged crime, for example, in Simelane's case, the live Instagram footage.

However, in a situation where the police declined to open a case, or if the State declined to prosecute, it is possible for a member of the public to institute a private prosecution in terms of section 7 and 8 of the Criminal Procedure Act.

But without the cooperation of the victim this was unlikely to be successful, said Botha.

Following widespread outrage and social media activity on the assault, the police have since opened an inquiry docket into the incident.

National police spokesperson Vishnu Naidoo said because of the public outrage and the evidence in the form of the video, the police had decided to investigate the case.

Source: News24

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