If Baby Siwaphiwe’s kidnapper is the "real" father what happens now?

By Drum Digital
14 March 2017

Phumlani Mbokazi says he cannot go to jail because he is the biological father. He has demanded DNA tests.

South Africans are awaiting the DNA results demanded by Phumlani Mbokazi, who is one of the accused of kidnapping baby Siwaphiwe Mbambo. He says he cannot go to jail because he is the biological father.

Baby Siwaphiwe’s mom, Sibongile, is married to someone else, and she too has been implicated in the kidnapping.

News that Mbokazi could be the biological father brought court proceedings to an end on Monday, after the court agreed to let Mbokazi take a DNA test.

His lawyer, Andile Dakela confidently told the media that Mbokazi cannot be charged with kidnapping if he is the biological father.

If that’s the case he can, however, be charged with defeating the ends of justice. Mbokazi and Sibongile appeared in the Durban Magistrates Court yesterday on charges of defeating the ends of justice.

Karabo Ozah, attorney at the Centre for Child Law, says this argument might not hold water in court.

“There is a common law presumption that when a baby is born and even conceived, the man who is married to the mom is the father of the child and he has parental responsibilities and right to the child,” she says.

Ozah points out that there was no proof that Mbokazi was the father at the time of the kidnapping.

“Kidnapping is a crime against the parent you are taking the child from. You are taking the child out of their lawful care,” she says. “The man that is married to Siwaphiwe’s mom is still regarded as the father and his rights were violated.”

Ozah also says Siwaphiwe’s birth certificate is important because the father is listed on the document and that person has legal paternity to the baby.

“This means Mbokazi could still be charged for kidnapping because his defence was only known to him,” she adds.

Siwaphiwe was kidnapped last week and the South African police launched a man hunt to find the kidnappers.

In a surprise turn of events it emerged that her mom, Sibongile, could have been part of the kidnapping. News that Mbokazi could be the father has put a new spin on the case.

The South African Police service is threatening legal action against the accused for wasting police resources.

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