It happens all the time. People rush to the police station to open a case against whoever has wronged them, then a day or two late they withdraw the case.
But does that really mean legally?
Actress and DJ Thuli Phongolo opened an assault case against her alleged boyfriend, fellow artist DJ Maphorisa, real name Themba Sekowe.
The pair have been rumoured to be a couple for a while, but they have never confirmed the rumours. Not until the shocking news of a police assault statement, in which Thuli refers to DJ Maphorisa as her boyfriend, emerged.
“He became aggressive and started to punch me with his fist on my chest. He klapped me on my face. He held me and took me to the balcony and grabbed me aggressively by my neck. He kept on hitting me with his elbow while we were fighting for my phone which he took from me,” reads the statement.
The actress alleges she called her manager, who is the one who accompanied her to the Sandton Police Station, where she laid a charge of domestic violence. She had bruises on her chest, arm, and right cheek.
He was arrested and later released on R4000 bail and the matter will return to court on 14 June.
Thuli has, however, filed a withdrawal statement. The National Prosecuting Authority has confirmed her withdrawal.
Read more | PICS | Rapper Emtee's assault case postponed after wife files for a withdrawal
Last month, award-winning rapper Emtee, real name Mthembeni Ndevu, appeared at the Midrand Magistrate’s Court for allegedly assaulting his wife.
He once gave details on social media saying he had been abused by his wife and that it has been happening for a while.
In March, he handed himself in at Midrand Police station after an assault charge was laid against him.
He was facing charges of assault after a video of him and his wife Nicole Kendall Ndevu arguing circulated on social media. In the video, his wife, who is seven months pregnant alleged that the Roll Up hitmaker physically assaulted her.
Nicole also withdrew the assault charges against her husband and the matter was postponed.
Drum speaks to legal practitioners who explain the intricacies of the withdrawal of cases.
National Executive Committee of National Association of Democratic Lawyers’ (NADEL) Zincedile Tiya says when a complainant withdraws a case, they are doing so because they no longer want the accused to be prosecuted, not that they are saying that did not do it.
“It is common when people opens cases against people who support them financially, then they later reconsider having them prosecuted when they think about the effect it will have on their livelihood.”
He says when cases are withdrawn, the complainants are expected to file withdrawal statements.
“Then the senior public prosecutor in that district then has to decide if they want to proceed with the withdrawal as per request from the complainant.
“In some cases, especially rape cases or schedule six offenses, then the state may decide to proceed with the prosecution even though the complainant has asked to withdraw. The complainant is then called as a witness in the case, if they still insist on not going to court they can be arrested.”
Zincedile says when a complainant withdraws a case, they can still open another case against the accused if they commit another offense after the withdrawal.
“It is treated as a brand-new case. Just like if they do not withdraw and the matter goes to trial, and the accused is found not guilty, the complainant can still open another case against the accused if they commit another crime.”
He adds that members of the public need to understand the purpose of bail.
“Bail is meant to secure attendance for the trial. It has nothing to do with the strength of the state’s case. The court weighs up whether it would be in the interest of justice to release the person on bail or not. The amount also speaks to the accused person’s affordability, not necessarily to match the alleged offense. Three people can be charged for the same offense, but be given different bail amounts because of their affordability,” he says.
Read more | DJ Maphorisa ‘klapped me. . . took me to the balcony, grabbed me by my neck’ – Thuli Phongolo alleges
Lwazi Dekeda, another attorney says it very rare for withdrawal of cases to be done because the accused person had not committed the crime in the first place.
“It can happen that a complainant withdraws charges which were not true to begin with. This is rare however. What happens more regularly is that a complainant will withdraw the charges, either because they feal sorry for the accused or out of fear that they might lose the accused’s financial support.”
“The accused may, however, use the previous withdrawal to argue that the current charges are fabricated also.”
If the charges are withdrawn, then why return to court?
“There will be no need to go back to court, when a case is withdrawn, unless it was only provisionally withdrawn, and the state then re-instates it. This happens sometimes when further evidence, that strengthens the State’s case, is uncovered or comes to the attention of the state,” says Lwazi.
He says the state can proceed with the case even if the complainant withdraws.
“(If) a crime is seen as being committed against the state, it carries the obligation to enforce the laws of the country. You will often find the state insisting to proceed with a case when a serious offence has been committed.
“The idea behind setting a bail amount is that an accused is compelled to attend court, for the duration of the trial. The consequence of not attending court, without good reason, is that the bail amount paid will be forfeited.”
