Labour Court dismisses police officer for shocking misconduct

An Atlantis police officer who appeared to have received a slap on the wrist for gross misconduct has been dismissed from the SAPS following a Labour Court review.

The Police Ministry and the national police commissioner took an arbitrator's sanction on appeal to the Labour Court in Cape Town after the police officer, through disciplinary proceedings, was suspended without pay.

The police officer and two colleagues were convicted of serious misconduct, including kidnapping, assault causing grievous bodily harm, and behaviour damaging to the image of the South African Police Service (SAPS).

The applicants argued that although the employees were found guilty of serious misconduct, the sanctions of suspension without pay (instead of dismissal) were inappropriate. They further submitted that the light sanction imposed, if not reviewed, will impact negatively on the culture within the SAPS in relation to discipline and dishonesty.

Labour Court Acting Judge Abrahams found that the arbitrator had misdirected himself and committed an irregularity in finding that the employment relationship between the first (Minister of Police and national police commissioner) and second (Constable Tomboer) and third respondents (Constable Van Heerden) had not irretrievably broken down.

With regard to the fourth respondent (Constable Filander), she is a junior female officer who had found herself “in the wrong place at the wrong time”.

According to the judgment, Filander was 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. Only after an assault had taken place, she realised that something was amiss, but had not reported the incident. 

Since the sanction, Tomboer resigned from the police service, and no order was made in that regard, but the judge emphasised that if the officer was still in the SAPS employ, the court would have had no hesitation in imposing the same sanction of dismissal.

It left the court to review Van Heerden’s sanction, which the court said was a decision that no reasonable decision-maker could have reached and “is indeed one which shocks and alarms the court, when the egregiousness of their conduct is taken into account”.

Circumstances relating to the misconduct occurred when the police officers were on night shift duty on November 13, 2023, from 6pm to 6am on November 14, 2023. 

During the night, at around 2.30am, the employees went looking for a suspect who was allegedly seen on SAPS CCTV footage in the vicinity of Tomboer’s personal vehicle, which was parked at the police station, and whose car battery had been stolen.

The employees found the complainant at home and informed him that he had to go with them.

The complainant was placed in the back of the van, in which he found two of his friends who had already been picked up.

“The employees then drove with the complainant and his friends to a secluded area, where Tomboer and Van Heerden assaulted the complainant in front of his friends while Filander allegedly looked on and did nothing to stop the assault. 

“The complainant was placed back in the van, and after some further driving, he was taken to another secluded area where Tomboer and Van Heerden continued to assault the complainant by hitting him with, inter alia, the butt of a firearm and a hockey stick, and allegedly shooting the complainant in the leg.

“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 judgment read. 

chevon.booysen@inl.co.za