CAPE TOWN – The Labour Court in Cape Town has ordered the immediate dismissal of a police constable, S.S. Van Heerden, after ruling that a disciplinary sanction of mere suspension without pay for charges including kidnapping and assault causing grievous bodily harm (GBH) was “egregious” and shocking to the court.
The judgment, delivered by Acting Judge Abrahams, follows an application by the Minister of Police and the National Commissioner of the South African Police Service (SAPS) to review and set aside the original, lenient penalties handed down to three officers implicated in a late-night vigilante-style attack on a civilian.
The court found that the nature of the misconduct, committed by police officers in full uniform, was grossly incompatible with the SAPS’s constitutional mandate to protect the public, rendering the continuation of the employment relationship “intolerable.”
The case centres on an incident that occurred on the night of 13 November 2023. Constables K. Tomboer, S.S. Van Heerden and D.H. Filander, all stationed at the Atlantis branch, were on duty when Constable Tomboer decided to pursue a personal matter.
Believing a Mr L.B. (the complainant) had been involved in stealing a battery from his personal vehicle, Tomboer, accompanied by Van Heerden and Filander, drove to the complainant’s home around 02:30. They coerced the complainant and two of his friends into the back of the police van.
The conduct of Van Heerden falls far below any such standard and cannot be seen as anything other than grossly inimical to the ability of the SAPS to fulfil its Constitutional mandate.
Instead of taking the group to the police station for processing, Tomboer and Van Heerden drove them to a secluded area where they brutally assaulted the complainant. The assault involved striking the victim with, among other objects, the butt of a firearm and a hockey stick. The complainant was then placed back in the van, driven to a second secluded location, and the assault continued, with allegations that the complainant was also shot in the leg before being abandoned in the bushes.
The injured complainant was later found by his family and taken to the hospital. A case of attempted murder, kidnapping and torture was registered. Crucially, none of the officers reported the incident upon returning to the police station.
The three constables were charged with multiple serious contraventions of the SAPS Discipline Regulations, including kidnapping, assault GBH, and conduct detrimentally affecting the image of the Service. Tomboer also faced a charge related to discharging a firearm.
Brig. M.A. Hartzenberg, the chairperson of the disciplinary enquiry, found Tomboer and Van Heerden guilty of all charges brought against them. However, the brigadier imposed a sanction of only a two-month suspension without pay for each charge against both officers. Filander was found guilty of tarnishing the SAPS image and given a one-month suspension without pay.
The minister of Police challenged these sanctions, arguing that dismissing the officers was the only appropriate outcome given the gravity of the offenses.
Judge Abrahams considered the review a “penalty review”, meaning the court was tasked with determining whether the sanction imposed by the brigadier was one that a reasonable decision-maker could have reached, given the evidence.
The court’s analysis focused heavily on the principle of trust in the employer-employee relationship, particularly in the context of a law enforcement agency. The judge noted that the breakdown of trust in a government employer like the police must be viewed not through perceptions of collegiality, but through “the broader image of the SAPS and the public expectations on how police members should conduct themselves”.
Judge Abrahams ruled that the brigadier had misdirected himself by relying on a superior’s testimony that Van Heerden’s later expression of guilt and remorse meant the employer could still trust him.
“The conduct of Van Heerden falls far below any such standard and cannot be seen as anything other than grossly inimical to the ability of the SAPS to fulfil its Constitutional mandate,” the judgment states.
The court ultimately found that the original sanctions of suspension for Tomboer and Van Heerden were “so egregious that it shocks and alarms the court,” constituting a gross irregularity.
ALSO READ: SAPS cracks down on corruption: Two officers face justice in separate bribery cases
The court issued the following orders: The sanction of suspension against Van Heerden is set aside, and replaced with the sanction of dismissal. No order was made against Tomboer, as he had resigned in 1 July 2024. The court declared the matter moot, but noted that had he still been employed, the court would have had “no hesitation in imposing the sanction of dismissal”.
For Filander the court declined to interfere with the one-month suspension without pay. Judge Abrahams noted that Filander’s conduct bore the hallmarks of a junior officer who failed to report a misconduct committed in her presence by fellow employees, but that the trust relationship had not irretrievably broken down in her case.
That night she was being given a lift home from the police station to fetch food, and was unaware of (and played no part in) the decision to proceed to the complainant’s house and place him in the back of the van. The evidence establishes that she was under the impression that the suspects at the back of the van were going to be taken to the police station to be processed, and it was only during the course of this first assault on the complainant that she became aware that something was amiss.
