6 March 2019

South Africa: #Mampintsha - 'If an Alleged Abuser Opens a False Counter Case, He Can Be Prosecuted for Defeating the Ends of Justice' - Lawyer

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

Experts say if an alleged abuser opens a false counter assault case against his victim, he or she may be prosecuted for defeating the ends of justice.

"If charges are laid that have no veracity or grounds, you can be prosecuted for malicious prosecution and defeating the ends of justice," managing partner at HJW Attorneys Megan Harrington-Johnson told News24 on Tuesday.

South Africa has seen a "trend" in cases of gender-based violence where an alleged perpetrator will open a counter assault case against their victim.

These include, for example, Power FM boss Given Mkhari opening a case against his wife Ipeleng Mkhari, Sandile Mantsoe opened one against his murder victim Karabo Mokoena and now musician Mandla "Mampintsha" Maphumulo claims to have opened one against gqom artist Bongekile "Babes Wodumo" Simelane.

"Yes, it does happen in a lot of cases of domestic violence due to the nature of the crime.

"When two people are involved in a passionate dispute, it is possible that there will be claims from both parties," Harrington-Johnson explained.

'She is the one who attacked me'

Maphumulo was arrested on Tuesday at Westville police station in Durban, KwaZulu-Natal, following an alleged assault on his partner, Simelane.

In a video broadcast live on Instagram in the early hours of Monday morning, Maphumulo is seen launching a physical attack on Simelane.

Following his brief appearance at the Pinetown Magistrate's Court on Tuesday, Maphumulo admitted he hit his partner and told the media that he was defending himself from a "drunk and violent" Simelane.

"I was sober and peacefully sleeping when she came in drunk and attacked me.

"I'm not dumb, I know I am not supposed to hit a woman.

"She is the one that attacked me, ask anyone - she becomes very violent when she is drunk," he said.

As a result, he claims to have opened a counter case of assault against Simelane - this is yet to be verified by the South African Police Service.

But what does this move by an alleged perpetrator mean for the victim?

Harrington-Johnson says that the police must determine whether there is a sufficient allegation to open a complaint or to file a charge.

"Police are then obligated to investigate each case, each matter must be investigated separately and on its merits.

"It will then be sent to the National Prosecuting Authority (NPA) for prosecution and the NPA must determine whether it has sufficient grounds to proceed with the prosecution with one or both of the offences," she explained.

Police officers who turn away individuals seeking to file an assault claim are in "breach of their obligation".

"In respect of domestic violence they (police) are supposed to treat it as a serious crime and investigate accordingly," she added.

While a party can claim that they acted in "self-defence", like Maphumulo has, this claim can be considered "narrow".

"You cannot act with disproportionate force when acting against your partner for instance, you cannot shoot somebody who punches you - that would be a disproportionate reaction," Harrington-Johnson concluded.

Maphumulo is due back in court on May 15.

Source: News24

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