Legal questions follow calls to charge Mampintsha on Babes’ behalf

A video in which SA pop star Babes Wodumo appears to be assaulted by her boyfriend, producer and kwaito artist Mandla “Mampintsha” Maphulolo, caused widespread outrage and sparked numerous calls for Maphululo’s arrest.

It also started a debate on South African law, with questions being asked surrounding whether or not charges could be laid on someone’s behalf by someone who was not the victim of the alleged crime.

Babes, real name Bongekile Simelane, who is famous as the most prominent face of KwaZulu-Natal’s homegrown style of dance music – gqom – posted an Instagram live video which appeared to show Maphulolo assaulting her. The video was deleted but the moment of her alleged assault was copied and widely shared online.

READ MORE: Babes Wodumo presses assault charges against Mampintsha

Simelane has reportedly pressed charges against Maphulolo at a police station in Westville, Durban, accompanied by her sister and manager Nonduh Simelane, according to SABC News.

Before this, though, calls for justice were made regardless of whether or not Simelane herself had acted against her alleged abuser. It was reported that the EFF in KwaZulu-Natal would be laying charges against Maphulolo at the Umlazi Magistrate’s Court on Monday morning. The ANC Youth League, meanwhile, called on police to arrest Maphulolo in a statement.

This has led to questions regarding SA law from several social media users.

News anchor Thembekile Mrototo took to Twitter to ask: “Is it possible to lay a criminal complaint on someone’s behalf?” adding that he’d received conflicting answers to this question.

Is it possible to lay a criminal complaint on someone's behalf? I'm hearing different things on this.

— Thembekile (@ThembiMrototo) March 4, 2019

Journalist Matshido Madia responded, saying she was “also very confused”, adding that she had suggested a group of people get together to lay charges but was told by some people that she could not legally do this.

Also very confused, I was pretty sure we could and was suggesting a bunch of us just try that but spoke to others who said we cant do it https://t.co/izhkDFbdJg

— Matshidiso Madia (@tshidi_lee) March 4, 2019

The Citizen spoke to several lawyers. According to Leanne Van Wyk of Gerhold and Van Wyk Attorneys in Northriding, Gauteng: “Nothing prohibits the reporting of a crime by a person who is not the victim.”

This is echoed by Matthew van der Want of Van Der Want Attorneys, who told us: “As a matter of law I think a witness to any offence can be a complainant and the SAPS is required to investigate the offence reported to them.”

Willem De Klerk of Willem de Klerk Attorneys / Prokureurs also agreed, saying: “Anyone can report a crime. If I see a break-in happening at my neighbour, I can report it. The police must then investigate and interview the alleged victim.”

READ MORE: Police launch manhunt for missing Mampintsha

Likewise, legal expert and journalist Helene Eloff said: “The police may decide to prosecute a criminal even if his victim did not lay a charge. If justice requires, police can investigate a case without the victim’s official complaint.”

But most of the lawyers also seem to agree about something else – pursuing a case against someone is difficult without the cooperation of the victim. “If he/she fails to cooperate, the case is unlikely to go far,” said De Klerk.

“Practically, you might struggle to get the cops to act and they will want to speak to the assault victim,” said Van Der Want.

“The difficulty encountered in such instances is that a person who is reporting a crime may not have been a witness to the crime or be in a position to provide sufficient evidence,” said Van Wyk.

WATCH: Video of Babes Wodumo allegedly being attacked by Mampintsha

“Such a person is able to do little more than bring a crime to the attention of the state. The state must then attend to investigations and determine whether or not to prosecute,” she continued.

“The attitude of a victim towards prosecution is an important consideration. In such instances, public interest must be weighed against the interests of the victim when the state determines whether or not to prosecute.

“In certain instances, public interests will dictate that prosecution must proceed. A difficulty in such instances is that a charge may be difficult to prove without the full co-operation of the victim, as the victim will often be the most important witness,” she concluded.

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