CONSULAR OFFICIAL USES PRIVILEGES; SOUTH AFRICAN IN DOMESTIC CASE NOT OFF THE HOOK YET, POLICE SAY.

Byline: Jesse Hiestand Daily News Staff Writer

A South African deputy consul got into a physical fight with his wife Thursday, but he was not arrested as is required by law because he claimed diplomatic immunity, police said.

The case will be referred to the Los Angeles County District Attorney's Office to decide whether Mpendulo Kumalo is charged with felony spousal abuse, police said.

The Los Angeles police policy toward consul officials is that they cannot be detained or arrested unless they pose an immediate threat to the public or are wanted on a felony arrest warrant, according to a newly issued training bulletin.

Ambassadors, ministers and their staff and families carry full immunity from prosecution.

Consular officials including Kumalo have limited, ``official acts immunity,'' and are thus protected only if they are accused of having committed a crime while engaged in official business, police said.

As a result, the 43-year-old Kumalo could have been arrested on suspicion of spousal abuse Thursday because he was not working when the incident occurred, said Los Angeles police Cmdr. Maurice Moore, the government liaison officer.

Kumalo himself reported the 2:30 a.m. fight to police. At the time, Kumalo had documents that showed he had diplomatic immunity, so officers chose to release him and verify the claims later with the U.S. State Department, Moore said.

``We have determined that we can arrest him because he was not in the course and scope of his job,'' Moore said of Kumalo, who is the No. 2 official at the embassy's office in Beverly Hills.

Without a claim of diplomatic immunity, Kumalo would have been automatically arrested because there was visible evidence of an assault, Broughton said.

Kumalo is accused of shoving and scratching his wife at their home in the 12500 block of Hesby Street, police said.

``He's not off the hook,'' said department spokesman Lt. Anthony Alba. ``We've been in touch with the State Department and the case will be presented to the District Attorney's Office for disposition. Should this activity occur again while we're waiting for a filing decision, he will be taken into physical custody.''

Kumalo did not return calls Thursday, and South African embassy spokesman Daniel Ngwepe in Washington, D.C., declined to comment.

Cases of diplomats claiming immunity in alleged crimes are very rare, Moore said.

Domestic-abuse activists said it was unfair that Kumalo avoided arrest when anyone else would have been led away in cuffs.

``It seems to me if they're not going to pursue prosecution here that he should be returned to South Africa to face prosecution under their laws,'' said Katherine Spillar of the Fund for the Feminist Majority. ``I don't think it should be dropped because he is a diplomat.''

Kumalo's 40-year-old wife did not request medical treatment, and officers asked her whether she wanted to be taken to a shelter, said Officer Charlotte Broughton, a department spokeswoman.

Kumalo was allowed to remain at home with his wife because officers concluded she was not in imminent danger, Moore said.