Ever had a bad experience at a police station? Rest assured – there are consequences

You may have visited a police station to report a traumatic crime or to simply certify a document but your complaint fell on deaf ears or the service expected was non-existent. Most people will simply shake their heads but not complain for fear of being victimised or ignored. By doing so, we implicitly condone that behaviour. But that is exactly what is needed.

A recent case heard by the labour court yields important findings about the conduct of civil servants; more specifically, the conduct of South African Police Service officials, regarding the rights and dignity of complainants and victims of crimes.

In April 2017, while at an Engen garage, Ntsie Esael Sefuthi was one such victim of police brutality. He was assaulted, dragged from the garage store and driven towards a police station by police officials in Fochville, Gauteng. En route, the officials realised that Sefuthi was not the person they had been looking for and drove back to the Engen to drop him off, battered and bruised. Sefuthi demanded compensation for the sum of R350 000 for his unlawful arrest and detention, assault, as well as his pain and suffering.

The next day, when opening his case of assault at the Westonaria police station, Sefuthi deposed that he could identify about four of the police officers who assaulted him in addition to having retrieved the CCTV footage of the horrific incident. But, for a year, there was no word on the progress of his case.

This case involves two applicants from Fochville police station. The first, Cecilia Astle, was the investigator assigned to Sefuthi’s assault case. Astle, rather than investigating Sefuthi’s case and upholding his rights as enshrined in the Constitution, deposed an affidavit motivating for Sefuthi’s case to be closed on the grounds that he could not identify the suspects. Astle deposed the affidavit before the second applicant, Abraham Carel Greyling, the captain and branch commander. With that, Sefuthi’s case was closed with no investigation, or even an attempt thereof.

Despite this, the case was not swept under the rug and forgotten because of Sefuthi’s relentless inquiries about the progress of his case, to the extent of writing to the Minister of Safety and Security and the national police commissioner.

In February 2018, almost a year after Sefuthi was assaulted, Astle and Greyling received a notice of alleged misconduct based on failing to investigate Sefuthi’s matter properly and the closure of the docket. Victress Mkwebula, a lieutenant colonel at the Westrand Cluster Office, was appointed to conduct the internal investigation. A month later, Mkwebula signed the outcome of her investigation, specifying Astle and Greyling’s misconduct as a contravention of a multitude of regulations enshrined in the SAPS Discipline Regulations and recommended that the matter be referred to departmental hearing.

Greyling had applied for a promotion during this period, despite Mkwebula’s “investigation” into his and Astle’s conduct.

This is where the plot thickens.

Despite Mkwebula’s recommendation that Astle and Greyling’s alleged misconduct be escalated to departmental level, she claimed that because she constantly felt “sleepy” and “dizzy”, she “forgot” to forward her report to departmental level. One can only speculate that Mkwebula’s “sleepiness” and “dizziness” played a pivotal role in facilitating the promotion of Greyling to lieutenant colonel.

Given that Astle and Greyling were charged in December 2018 and called to attend a disciplinary hearing in March 2019, a series of WhatsApp messages were exchanged between Greyling and Mkwebula during this period. In the messages, Greyling expressed that he was in “big trouble” and in “hot water” because he failed to disclose the pending departmental investigation against him prior to applying for the promotional post.

A few weeks later, in January of 2019, in an attempt to clean up the mess for Greyling, Mkwebula signed another outcome of the investigation. This second report failed to set out the nature of Greyling and Astle’s misconduct. In this second report, Mkwebula said Greyling and Astle’s misconduct warranted the sanction of a written warning.

To lend coherence to her second report, Mkwebula fabricated and backdated two written warnings to Greyling and Astle. But these manufactured written warnings were dated 25 February 2018, which was more than two weeks before the first investigation report, which was dated 14 March 2018, and 11 months before the second investigation report, which was dated 2 January 2019.

On 12 March 2019, at their disciplinary hearing, armed with the manufactured written warnings, Astle and Greyling’s legal representative raised the defence of double jeopardy, contending that the applicants were already disciplined and sanctioned for the same misconduct. With this argument put forth, the chairperson of the disciplinary hearing withdrew the matter. This suggests further negligence on the part of the police, because a closer examination of the written warnings would have revealed that they were chronologically inconsistent and did not contain the nature of the misconduct Astle and Greyling were disciplined for.

Fortunately Sefuthi’s ordeal, checkered by injustice and sheer mishandling, did not end here. In May 2019, the deputy provincial commissioner (DPC) addressed a letter to the district commissioner regarding all the irregularities. The DPC also observed that Mkwebula backdated the written warnings to facilitate Greyling’s promotion.

Thus, in November 2019, the applicants received notices to attend another disciplinary hearing, facing multiple allegations of misconduct emanating from their failure to investigate Sefuthi’s case and the closure of his docket. The applicants were dismissed on 21 February 2020, almost three years after Sefuthi’s complaint at the police station.

Astle and Greyling then referred their dismissals to arbitration on the grounds of an unfair dismissal, where the Security Sector Bargaining Council had jurisdiction. Despite the applicants’ invocation of the double jeopardy defence once again, the commissioner found them guilty of the charges against them.

The applicants then approached the labour court to review and set aside the arbitration award in terms of section 145 of the Labour Relations Act. Judge M Makhura rejected the applicants’ double jeopardy argument on the basis of it being unsound, given that there was no double jeopardy to begin with. In terms of the applicants’ argument of inordinate delay regarding lack of timeliness in carrying out their disciplinary hearing, Makhura stated that Mkwebula’s “reprehensible” and “rogue” conduct was the root cause of the delay. The judge also rejected the review grounds on the merits of the charges because Astle did not carry out Sefuthi’s investigation and falsely declared that the suspects were unknown. Greyling failed to ensure that his subordinate carried out her duties of investigating the crime. Makhura held that the dismissal of both employees was procedurally and substantively fair.

As Judge AJ Tlaletsi stated in AK v Minister of Police, our law does not require perfection; it requires conduct that is in line with a diligent and reasonable person. One can only imagine how many people undergo ordeals such as that of Sefuthi’s but slip between the cracks.

This case cuts to the heart of our humanness and serves as a reminder to all civil servants to uphold the principles enshrined in the Constitution, and to perform their duties with integrity. This judgment makes it clear that the disrespect and disregard for the dignity of complainants and victims of crime will not be tolerated.

For civilians, it is a clarion call for them to demand that justice is done. By Sefuthi standing up for himself and by persisting, the right result followed. His unwavering defence of his rights serves as a reminder to us all that such behaviour must never be tolerated or accepted as the norm.

Anelisa Zungu is a candidate attorney and Richard Brown is a director at Herold Gie Attorneys.