The labour court has ruled that the police service was wrong not to dismiss an officer who kidnapped, assaulted and shot a man in the leg who was suspected of stealing a car battery from a police station.
The court in the Western Cape last week overturned the January 2024 decision by Brig M Hartzenberg to hand Const K Tomboer of Atlantis police station a two-month suspension without pay for tarnishing the image of the police.
Tomboer and his two colleagues, Constables S van Heerden and H Filander, faced disciplinary action for kidnapping the man they suspected of having stolen a battery from Tomboer’s car at the station in November 2023.
According to the judgment, the alleged theft was caught on CCTV, which led the officers to the man’s house, where they picked him up along with his co-accused. They then drove with him to a secluded area where Tomboer and Van Heerden beat him while Filander allegedly looked on and did nothing to stop the assault.
“The complainant was placed back in the van, and ... he was taken to another secluded area where Tomboer and Van Heerden continued to assault [him], hitting him with the butt of a firearm and a hockey stick, and allegedly shooting the complainant in the leg,” the judgment read.
“The complainant was left in the bushes, and the employees returned to the police station. The complainant’s friends were told to clean up the complainant’s blood from the back of the van and go home. The complainant was found injured in the bushes the next day by his family and taken to hospital. A case of attempted murder, kidnapping and torture was registered.”
The court noted that none of the officers reported the incident on their return to the station, while Filander claimed to have not been aware that the complainant was left in the bush. She too failed to report the incident to her superiors.
The officers were internally charged with kidnapping, assault with the intent to do grievous bodily harm, unlawfully discharging a firearm, bringing the police service into disrepute and dishonesty.
Hartzenberg imposed a sanction of two months’ suspension without pay against Tomboer and Van Heerden, while Filander received one month’s suspension without pay.
Van Heerden has since resigned from the police, while Tomboer and Filander remain.
The police ministry [the applicant] approached the labour court to seek a review of the sanctions and have it replaced with a dismissal, arguing their officers had violated the relationship of trust with the employer. They also argued against Hartzenburg’s assertion of the possibility of rehabilitation.
“Applicants argued further that the employees’ acts of misconduct involved an element of dishonesty amounting to gross dishonesty, and that the light sanction imposed, if not reviewed, will impact negatively on the culture within the SAPS in relation to discipline and dishonesty,” the judgement read.
The acting station commander, Lt-Col Thyse, testified that he would not be able to trust the officers.
The court found that Hartzenburg had erred in his disciplinary sanctions.
“The sanction of suspension without pay imposed on [Tomboer and Van Heerden] is indeed one which shocks and alarms the court when the egregiousness of their conduct is taken into account.
“I accordingly find that [Hartzenburg] committed a gross irregularity in this regard ... I find that the sanctions were a decision which no reasonable decision-maker could have reached,” the judgment read.
Sowetan
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