Babes outcry: yes, you can open a case on behalf of a victim of abuse
Police say third parties are entitled to open a case, but without the victim's co-operation conviction is unlikely
If a victim of physical abuse by a spouse or partner is too afraid or declines to open a case, despite there being evidence of the abuse, a third party is legally entitled to open a case on their behalf.
It’s the answer to a question that was asked repeatedly as a national outcry gathered steam on Monday over a video allegedly depicting musician Mandla Maphumulo, known as Mampintsha, assaulting his girlfriend Bongekile Simelane, known to fans as Babes Wodumo.
National police spokesperson Brigadier Vish Naidoo said the police did not need to wait – on Simelane, in this instance – to open a case before they could act.
The alleged assault was captured and broadcast live by Simelane on Instagram, but later deleted.
It showed part of what appeared to be an altercation where Simelane could be heard swearing. A man allegedly responds by slapping her, walking away but then returning seconds later and striking again as she weeps.
Naidoo said that an “inquiry docket” had been opened by the police, and was under investigation after the video emerged.
Speaking in general terms, he said: “If you believe someone has been assaulted, or if you witness an assault, you can go open a case on behalf of the victim. We will investigate.”
He said it was the “responsibility” of the police to take every piece of information received, break it down and gather as much information and evidence as possible. They would then go to a prosecutor with this information.
“Should we get the victim (to come forward) at a later stage, we can obtain that statement. If they don’t want to, we will be guided by the prosecutor,” said Naidoo.
But while a third party can set an investigation in motion, such cases can be difficult to prosecute successfully.
Legal expert James Grant told Times Select it was usually incredibly difficult to secure a conviction if a victim refused to co-operate with the prosecution.
“A victim could take the side of accused and this would assist in his defence. She could say she had provoked him, or that he was even acting in defence, and that would make the case difficult to pursue,” he added.
Grant said that in a case such as this, where there was video footage of an alleged assault, the state had a better chance of proving its case.
He said if there was evidence, independent of the victim’s participation, it could provide a better chance of securing a conviction, but it was not always advisable to “go against the will of the victim”.
This, he added, was equivalent to having a star witness being the one to undermine your case. He added that the Domestic Violence Act had been updated to read that the state could not automatically withdraw a domestic violence case just because a victim decided to withdraw.
“This is because of the neverending cycle of domestic abuse and the law has since taken a position to be more aware of this cycle,” he said.
National police commissioner General Khehla John Sitole said a senior member from the Family Violence, Child Protection and Sexual Offences Unit had been dedicated to investigate the incident in the video.
The case would be overseen by a major-general who was the national head of the same unit.
“Crimes against women, children and people with disabilities is one the of the priorities of the South African Police Service. Therefore, we will do everything to ensure that justice prevails when such incidents are reported to us,” he said on Monday.