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[2025] ZALCCT 113
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Minister of Police N.O and Another v Hartzenberg N.O. and Others (C383/2024) [2025] ZALCCT 113 (13 November 2025)
FLYNOTES:
LABOUR – Suspension –
Police
officials
–
Charges
of kidnapping and assault – Conduct detrimental to image of
SAPS – Suspensions without pay imposed rather
than dismissal
– Actions involved gross dishonesty and undermined public
confidence – Rendered continued employment
intolerable –
Failed to give proper weight to evidence showing a breakdown of
trust – Conduct incompatible with
continued employment and
justified dismissal – Sanction was shockingly inappropriate
given gravity of offences –
Reviewed and set aside.
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
CASE NO. C383/2024
R
eportable
In the matter between:
MINISTER
OF POLICE N.O.
First Applicant
THE NATIONAL
COMMISIONER OF THE SOUTH
AFRICAN
POLICE SERVICE N.O.
Second Applicant
And
BRIGADIER
M A HARTZENBERG N.O.
First Respondent
CONSTABLE
K TOMBOER
Second Respondent
CONSTABLE
S S VAN HEERDEN
Third Respondent
CONSTABLE
D H FILANDER
Fourth Respondent
Heard
:
16 September 2025
Delivered
:
13 November 2025
Summary:
Second to Fourth
Respondents were employed as police officers by the Applicants, and
were found guilty of serious acts of misconduct,
inter alia
kidnapping, assault causing grievous bodily harm, and conduct
detrimentally affecting the image of the SAPS.
The First Respondent,
having conducted the disciplinary enquiry in terms of an expeditious
process as provided for in the Police
Service Discipline Regulations,
imposed sanctions of suspension without pay in respect of each
charge. Applicants sought the review
and setting aside of the
sanctions imposed, and the substitution of the sanction of dismissal
in respect of Second to Fourth Respondents.
The court considered the
two-stage test to be applied in review applications and the proper
approach to be taken in the case of
penalty reviews, i.e attacks on
the decision of the arbitrator to either uphold or not to uphold the
sanction of dismissal after
having found the employee guilty of
misconduct.
Having considered the
evidence available as well as the law relating to the breakdown of
trust or intolerability in a continued
employment relationship with a
government employer like the SAPS, the court found that the
arbitrator had misdirected himself in
finding that the employment
relationship between Applicants and Second and Third Respondents had
not irretrievably broken down.
Second Respondent having
in the interim resigned from the Applicants’ employ, no order
was made in this regard. As to Third
Respondent, the sanction of
suspension without pay was reviewed and set aside and substituted
with the sanction of dismissal. No
order was made in regard to Fourth
Respondent.
JUDGMENT
ABRAHAMS AJ
INTRODUCTION
1.
This matter comes before me as an unopposed review
application.
2.
First and Second Applicants are the officials
responsible for the oversight, control and management of the South
African Police
Service in terms of ss 205 – 207 of the
Constitution and the
South African Police Service Act, No. 68 of
1995
.
3.
First Respondent was appointed as the delegated
authority / chairperson of a disciplinary enquiry held as an
expeditious process
in terms of Regulation 9(2)(b) of the South
African Police Service Discipline Regulations, 2016 (“the
Regulations”),
to hear charges of serious misconduct brought
against the Second to Fourth Respondents.
4.
Second to Fourth Respondents were, at the material
time, police officers in the employ of Applicants.
5.
Second to Fourth Respondents were found guilty of
various charges by the First Respondent who imposed a sanction of
suspension without
pay on each charge.
6.
The Applicants now seek to review and set aside
the sanction imposed by the First Respondent, and the substitution
thereof with
the sanction of dismissal in regard to Second to Fourth
Respondents.
BACKGROUND
7.
The background facts are briefly as follows:
7.1.
Second to Fourth Respondents (“the
employees”) were at the relevant time employed by the
Applicants as police officers
stationed at the Atlantis branch of the
SAPS;
7.2.
On 13 November 2023 the employees were on duty and
in full uniform, on a shift from 18h00 to 06h00 on 14 November 2023;
7.3.
At around 02h30 the employees went looking for a
Mr L B[…] (“the complainant”) whom Second
Respondent (“Tomboer”)
had allegedly seen on SAPS CCTV
footage in the vicinity of his (Tomboer’s) personal vehicle
which was parked at the police
station, whose battery had been
stolen;
7.4.
The employees found Mr B[…] at home at
about 02h30 and informed him that he had to go with them. Mr B[…]
was placed
in the back of the van, in which he found two of his
friends who had already been picked up;
7.5.
The employees then drove with the complainant and
his friends to a secluded area where Tomboer and Third Respondent
(“Van
Heerden”) assaulted the complainant in front of his
friends while Fourth Respondent (“Filander”) allegedly
looked
on and did nothing to stop the assault;
7.6.
I
mention for the sake of clarity that the evidence establishes that
Fourth Respondent’s presence in the vehicle was unrelated
to
the above events: she was being given a lift home from the police
station in order 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.
[1]
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;
[2]
7.7.
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;
7.8.
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;
7.9.
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 under Atlantis CAS
315/11/2023;
7.10.
It
must be noted that none of the employees saw fit to mention what had
happened on their return to the police station. The Fourth
Respondent
testified that she was not aware that the complainant had been left
in the bushes; that she was in a state of shock
upon their return to
police station; and therefore requested, and was granted, permission
to go home.
[3]
She did not,
however, inform her superior of what had occurred.
THE DISCIPLINARY
ENQUIRY
8.
Flowing from the above events, the employees were
charged with contraventions of the South African Police Service
Discipline Regulations,
2016, as follows:
8.1.
Constable Tomboer:
8.1.1.
Charge 1: Regulation 5(4)(n) – Kidnapping;
8.1.2.
Charge 2: Regulation 5(4)(d) – Assault GBH;
8.1.3.
Charge 3: Regulation 5(4)(y) – Contravention
of the Firearms Control Act in discharging a firearm in a public
place without
good reason to do so;
8.1.4.
Charge 4: Regulation 5(4)(x) – Conduct
detrimentally affecting the image of the Service or bringing the
service into disrepute
or involving an element of dishonesty thereby
tarnishing the image of the SAPS.
8.2.
Constable Van Heerden:
8.2.1.
Charge 1: Regulation 5(4)(n) – Kidnapping;
8.2.2.
Charge 2: Regulation 5(4)(d) – Assault GBH;
8.2.3.
Charge 3: Regulation 5(4)(x) – Conduct
detrimentally affecting the image of the Service or bringing the
service into disrepute
or involving an element of dishonesty thereby
tarnishing the image of the SAPS.
8.3.
Constable Filander:
8.3.1.
Charge 1: Regulation 5(4)(n) – Kidnapping;
8.3.2.
Charge 2: Regulation 5(4)(x) – Conduct
detrimentally affecting the image of the Service or bringing the
service into disrepute
or involving an element of dishonesty thereby
tarnishing the image of the SAPS.
9.
The First Respondent conducted the disciplinary
enquiry in terms of an expeditious process in terms of the
Regulations and found
Constable Tomboer guilty of all four charges;
Constable Van Heerden guilty of all three charges; and Constable
Filander innocent
of the first charge (kidnapping), but guilty of the
second (tarnishing the image of the SAPS).
10.
In respect of Constables Tomboer and Van Heerden,
the First Respondent imposed a sanction of two months’
suspension without
pay in respect of each charge; whereas in respect
of Constable Filander he imposed a sanction of one month’s
suspension without
pay.
11.
Subsequent to the decision of the First
Respondent, issued on or about 22 January 2024, the Second Respondent
resigned with effect
from 1 July 2024. Third and Fourth Respondents
remain in the employ of the SAPS.
12.
In respect of Second and Third Respondents the
Applicants do not challenge the First Respondent’s findings but
seek the review
and setting aside of the sanctions imposed and the
substitution of the sanction of dismissal.
13.
In respect of Fourth Respondent, Applicants seek
to review and set aside the finding of innocence on the first charge
as well as
the sanction of one month’s suspension without pay
in respect of the second charge, and the substitution therefor of a
finding
of guilt on both charges coupled with the sanction of
dismissal.
CONDONATION
14.
As mentioned above, the decision of First
Respondent was handed down on or about 22 January 2024. The present
proceedings were instituted
on or about 18 September 2024 –
some 10 months later.
15.
While
it is indeed so that s 158(h) of the Labour Relations Act, No. 66 of
1995 (“the Act”), does not prescribe the
time period for
bringing a review application, it is an accepted principle that this
must be done within a reasonable time and
six weeks has been used as
a measure of such reasonableness.
[4]
16.
Applicants’ explanation for the delay
in instituting proceedings (set out in paragraphs 18 to 52 of the
founding affidavit)
evinced numerous instances where, due to
bureaucratic inertia, periods of between 2 and 5 weeks elapsed before
the next step of
the process was taken. Such delays are undesirable
and would ordinarily require better explanation. However, in the
final analysis
Applicants’ arguments regarding the absence of
prejudice to the Third and Fourth Respondents, and the potential of
harm to
the public if they are allowed to continue in the Applicants’
employ, weighed heavily with the Court.
17.
In the premises, I find that good cause was shown
and grant condonation, to the extent that it is necessary, for the
late institution
of the review application.
APPLICANT’S CASE
18.
Applicants take issue with the sanctions imposed
by First Respondent on the grounds that, despite finding the
employees guilty of
very serious acts of misconduct, he imposed
sanctions of suspension without pay (as opposed to dismissal) on the
basis that the
relationship of trust between the parties had not
irretrievably broken down, and that rehabilitation was possible.
19.
The argument seems to be that First Respondent’s
decision not to dismiss the employees, in the circumstances of the
case,
constituted an irregularity in and of itself given the
egregious nature of their conduct.
20.
Applicants’ main submission was that, taking
into account the evidence led at the hearing, the First Respondent’s
interpretation
and understanding of the guidelines in respect of the
South African Police Service Discipline Regulations was misguided in
that
there was no rational connection between the evidence led at the
hearing and the conclusions he arrived at.
21.
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.
22.
Furthermore, the nature of the misconduct
committed by the employees, it was argued, rendered the continuation
of the employment
relationship intolerable and unfeasible. In these
circumstances, the decision of the First Respondent to consider
himself obliged
to apply the principles of progressive discipline
constituted an irregularity.
ANALYSIS
23.
In the matter of
Association
of Mineworkers & Construction Union on Behalf of Motswadi v
Commission for Conciliation, Mediation & Arbitration
& Others
(2023) 44 ILJ 2699 (LC), Van Niekerk J stated as
follows:
[5]
The test to be applied in review applications is clear. This court
may intervene if and only
if the applicant establishes that the
decision to which the arbitrator came was so unreasonable that no
reasonable decision maker
could come to it. …
[6]
The threshold to be met by an applicant in a review application is
one of reasonableness.
The court is required to apply a two-stage
test. The first stage is to determine the existence or otherwise of
any error or irregularity
on the part of the arbitrator. If the
applicant is unable to establish any error or irregularity, that is
the end of the enquiry.
… When an error or irregularity is
established, the court must proceed to the second stage of a
determination of the reasonableness
of the result.
Put another
way, the award must be sustained if, by reference to the record and
regardless of any error or irregularity on the
part of the
arbitrator, the award is one which a reasonable decision maker could
reach.
[7]
In the case of what has been termed a penalty review
(ie an
attack on a decision by an arbitrator either to uphold or not to
uphold the sanction of dismissal after having found the
employee
guilty of misconduct),
the proper approach for the arbitrator is
to take into account the totality of circumstances, considering the
reason that the employer
imposed the sanction of dismissal and the
basis of the employee’s challenge to the dismissal.
Other
relevant factors include any harm caused by the employee’s
conduct, whether additional training and instruction would
result in
the employee not repeating the misconduct and the effect of dismissal
on the employee and his or her long service record.
Ultimately, it
is not for an arbitrator to consider afresh what he or she would do
in the same circumstances; the arbitrator is
required to decide,
without any deference to the decision of the employer, whether what
the employer did was fair
(see
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24
(CC);
(2007) 29 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC)).
[emphasis added]
24.
I consider the present matter to fall within the
category of a ‘penalty review’ as set out above. The
first stage is
therefore to determine the existence or otherwise of
any error or irregularity on the part of the arbitrator.
25.
The Applicants do not seek to review the findings
of the First Respondent in regard to the employees’ guilt, save
in regard
to the finding that Fourth Respondent was innocent of the
first charge of kidnapping. Having carefully considered the record of
proceedings, I am unable to find that the First Respondent committed
any irregularity in this regard in light of all the evidence
available to him at the time, and there is therefore no basis to
interfere with First Respondent’s findings in this regard.
26.
However, the First Respondent relied heavily on
the evidence of Lieutenant Colonel Thyse, Acting Station Commander of
Atlantis SAPS,
who testified in aggravation of sentence, as grounds
for finding that the employment relationship had not irretrievably
broken
down. I am, for the following reasons, unable to agree with
the chairperson’s reasoning in this regard.
27.
Lt Col Thyse testified that he would not be able
to trust the Second Respondent again, although he conceded that he
was otherwise
a reliable worker of great value to the organisation,
with previously outstanding work performance.
28.
The evidence of Lt Col Thyse was clear that the
relationship of trust with Second Respondent had broken down. The
fact that his
previous work record was satisfactory or better does
not disturb this conclusion, nor can Second Respondent’s
belated expression
of remorse alter that fact. In failing to take
account of this evidence, the First Respondent committed an
irregularity.
29.
As to Third Respondent, Lt Col Thyse testified
that, a few weeks after the incident, Third Respondent had, in the
course of a confidential
chat, admitted his guilt and expressed
remorse. For this honesty, he concluded that the employer could still
trust him.
30.
In my opinion, the First Respondent misdirected
himself in placing too much weight on this evidence, given the
totality of evidence
available to him as well as the applicable law.
31.
In
Notisi v SA Police
Service & Others
(2024) 45 ILJ 986
(LAC), Gqamana AJA stated as follows:
[31]
The breakdown of trust or intolerability in an employment
environment, especially in a government employer like the SAPS, must
not
be viewed from collegiality perceptions, but rather on the
broader image of the SAPS and, in this case, the public expectations
on how members of the SAPS should conduct themselves
. All members
of the SAPS must command respect and confidence from the members of
the public.
[32]
…
[33]
The police have a duty to investigate criminal conduct and to bring
perpetrators thereof to justice.
It is crystal clear that the
constitutional and statutory mandate of members of the police is an
important mandate which should
reasonably result in the trust of the
police by members of the public
. And where such trust is
established, it would be easy for the police to achieve its
tasks.
[emphasis
added]
32.
In terms of s 205(3) of the Constitution the SAPS
has an obligation to prevent and investigate crime and to protect
members of the
public. It executes such mandate through its police
officers who are required to be ethically beyond reproach.
33.
The conduct of Third Respondent
in
casu
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
question is therefore whether the nature and extent of the misconduct
was such as to render the
continued employment relationship
intolerable and / or incompatible with the operational requirements
of the employer.
34.
In
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO & Others
(2010) 31 ILJ 901 (LAC) the Labour Appeal Court
held as follows:
[25]
This court in
De Beers Consolidated Mines Ltd v Commission for
Conciliation, Mediation & Arbitration & others
(2000) 21
ILJ 1051 (LAC) stated the following at 1058E-G:
'Dismissal is not an
expression of moral outrage; much less is it an act of vengeance. It
is, or should be, a sensible operational
response to risk management
in the particular enterprise. That is why supermarket shelf packers
who steal small items are routinely
dismissed. Their dismissal has
little to do with society's moral opprobrium of a minor theft; it has
everything to do with the
operational requirements of the employer's
enterprise.'
35.
After dealing with the specific circumstances of
the case, the Court continued as follows:
[38]
I have found that, especially given the position of trust and
responsibility that he held at the appellant,
the third respondent,
on his own admission, committed misconduct which involved gross
dishonesty, which essentially amounted to
fraud. Hence,
in my
view, retaining the third respondent in the appellant's employ, in
these circumstances, would have been severely detrimental
to the
appellant's operational requirements and therefore inappropriate. Any
continued working relationship between the appellant
and the third
respondent was, as a result of the third respondent's conduct,
rendered intolerable.
[emphasis added]
36.
I accordingly find that the First Respondent, in
finding that the trust relationship had not irretrievably broken down
between the
employer and Third Respondent, failed to take account of
relevant legal aspects and misconstrued the evidence before him. In
doing
so, he committed an irregularity.
37.
As to Fourth Respondent, Lt Col Thyse could not
testify as to the reasons for her conduct, although he noted that she
was in a very
emotional state, traumatised, and vulnerable. He
testified that it would be difficult to trust her, but that, with the
right mentorship
and help, she could be reformed.
38.
Fourth Respondent’s conduct bears all the
hallmarks of a relatively junior police officer – and the sole
female officer
on duty at the time– who found herself in the
wrong place at the wrong time, in the dark hours of the night, in the
company
of two brother officers acting with a common purpose.
39.
At most, she was guilty of failing to report an
act of misconduct committed in her presence by a fellow employee –
an act
defined as misconduct in terms of Regulation 5(3)(jj) of the
Regulations, but not one that would necessarily warrant the
institution
of the expeditious procedure provided for in Regulation
9.
40.
The evidence available is ambiguous when it comes
to assessing the status of the trust relationship between the
employer and Fourth
Respondent. In my opinion, it cannot be
established on a balance of probabilities that the trust relationship
has irretrievably
broken down in her case.
41.
However, in regard to Second and Third
Respondents, I find that the first leg of the test propounded in AMCU
supra
is
satisfied: there has been an error or irregularity on the part of the
arbitrator. It therefore remains to be seen whether it
can be said
that the sanction imposed upon them by the First Respondent is a
decision that a reasonable decision maker could have
reached.
42.
To the extent that the conduct of the employees
involved elements of a lack of integrity and / or dishonesty, in
Toyota SA Motors (Pty) Ltd v Radebe &
Others
(2000) 21 ILJ 340 (LAC), the
Labour Appeal Court held:
[44]
It is not an invariable rule that offences involving dishonesty
necessarily incur the supreme penalty of
dismissal. The facts of
every case must be assessed and the mitigating features taken into
account. … However, where the
dishonesty complained of is
gross, dismissal would be an appropriate sanction.
43.
The Court continued as follows:
[53]
If there is a yawning chasm between the sanction which the court
would have imposed and that which the commissioner imposed then
it
would seem to me that a gross irregularity has been committed
.
The use of the word 'gross' indicates that the irregularity has to
be so egregious that a court can conclude that the function of
assessing a fair sanction has been misconceived.
It is always
difficult to define the extent to which the commissioner has to
deviate from the normal sanction for such to constitute
a 'gross
irregularity'. In criminal law, appeal courts interfere with the
sentence of a lower court where such induces a sense
of shock or
there is an alarming or disturbing disparity between the
sentence imposed by the trial court and the sentence
which the appeal
court is minded to impose. A commissioner imposing a sanction in an
arbitration in terms of the Act has a similar
but not identical role.
Variations within the continuum of a fair sanction are to be expected
and are acceptable.
Where, however, the imposition of a sanction
- or, indeed, the failure to impose a sanction - is so egregious
that it shocks
and alarms the court, then the commissioner has
misconceived his duties. One of his duties is to determine a fair
sanction and
there are parameters within which he can work. If he
strays outside those parameters to a significant degree he has failed
to afford
the aggrieved party a fair hearing.
The fact that
precise definition is not possible of the degree of error before a
gross irregularity is committed, does not mean
that the court should
not interfere where it is convinced such a gross irregularity has
taken place.
[emphasis added]
44.
In the present matter, the sanction of suspension
without pay imposed on Second and Third Respondents is indeed one
which shocks
and alarms the court, when the egregiousness of their
conduct is taken into account. I accordingly find that the First
Respondent
committed a gross irregularity in this regard.
45.
In the case of
South
African Police Service v POPCRU
2020
JDR 2353 (LAC), the matter involved a police officer who had been
found guilty of the shooting and killing of a civilian at
his (the
officer’s) home. Although the officer raised the defence of
justification, this could not be established on the
evidence. In
setting aside the findings of the Court
a
quo
, Kathree-Siloane AJA held as
follows:
[24] The shooting
and killing of a civilian without just cause constitutes misconduct
of a very serious nature. It is not
consistent with the obligations
of a police officer who is required, in terms of the SAPS Code of
Conduct to, amongst other things,
exercise the powers conferred upon
him or her in a responsible and controlled manner and uphold and
protect the fundamental rights
of every person. Such misconduct
detrimentally affects the image of the police and brings it into
disrepute, thus undermining public
confidence in the police service.
The SAPS was, therefore, justified in dismissing Const. Mmatli from
the service.
[25] That being the
case, the Labour Court should have found that the arbitrator's
decision was one which no reasonable arbitrator
could have arrived
at. The Labour Court, accordingly, erred in concluding that the
arbitration award fell within the bounds of
reasonableness and there
was "no legal basis to have it reviewed and set aside".
46.
In the present matter, I similarly find that the
sanction of suspension without pay imposed by the First Respondent in
respect of
Second and Third Respondents was a decision which no
reasonable decision-maker could have reached.
47.
In the circumstances, the First Respondent’s
decision in this regard is reviewed and set aside.
48.
As to Fourth Respondent, it cannot in her case be
said that the sanction imposed is one which was so inappropriate that
it would
shock and alarm the court. In the circumstances, I decline
to interfere with the First Respondent’s decision to impose a
sanction of one month’s suspension without pay on Fourth
Respondent.
49.
In light of the fact that Second Respondent has in
the interim resigned from the Applicants’ employ, the question
arose whether
there was any basis on which this Court could exercise
jurisdiction, the employment relationship having been brought to an
end.
Mr Allen, on behalf of Applicants, was unable to refer me to any
authority in this regard.
50.
I in any event consider myself bound by the
principle enunciated in
Solidariteit Helpende Hand NPC and
Others v Minister of Cooperative Governance and Traditional
Affairs
[2023] ZASCA 35
(31 March 2023)
at para 12:
The general principle is
that a matter is moot when a court’s judgment will have no
practical effect on the parties. This
usually occurs where there is
no longer an existing or live controversy between the parties. A
court should refrain from making
rulings on such matters, as the
court’s decision will merely amount to an advisory opinion on
the identified legal questions,
which are abstract, academic or
hypothetical and have no direct effect; one of the reasons for that
rule being that a court’s
purpose is to adjudicate existing
legal disputes and its scarce resources should not be wasted away on
abstract questions of law.
51.
The application is therefore moot insofar as the
Second Respondent is concerned. I mention for the sake of
completeness that, if
Second Respondent were still in Applicants’
employ, I would have had no hesitation in imposing the sanction of
dismissal.
52.
As to Third Respondent, I find that the
appropriate sanction is one of dismissal.
53.
Accordingly, the following order is made:
Order:
1.
No order is made with regard to Second Respondent;
2.
The First Respondent’s sanction imposed on
Third Respondent is reviewed and set aside, and replaced with the
sanction of dismissal;
3.
No order is made with regard to Fourth Respondent;
4.
There is no order as to costs.
ABRAHAMS
AJ
Acting
Judge of the Labour Court of South Africa
.
Appearances:
For
the Applicant: The State
Attorney
Kurt
Allen
For
the Respondent:
[1]
Record
p 179
[2]
Record
p 181 - 182
[3]
Record
p 183
[4]
Statistics
South Africa v Molebatsi and Another (2019) 40 ILJ 2603 (LC) para 2