Anyone who has ever had to visit a police station, either to formally report a traumatic criminal incident, or to simply certify a document or two, may have had an experience where service delivery is non-existent, or knowing that their complaint will fall on deaf ears is an all-too-common experience that resonates with most members of the public. Whilst most people will simply shake their heads in dissatisfaction without complaining for fear of being victimized or completely ignored. By doing so, we implicitly condone that experience. The reward for standing up to a system where the power imbalance between the SAPS, who have extraordinary powers compared to an ordinary person, is stark. But sometimes, 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 (“SAPS”) officials regarding the rights and dignity of complainants and victims of crimes.
Read the case here,
https://www.saflii.org/za/cases/ZALCJHB/2025/48.html
In April of 2017, while at an Engen garage, Ntsie Esael Sefuthi (“Sefuthi”) was one such victim of police brutality. Sefuthi was assaulted, viciously dragged from the garage store, and driven towards a police station by SAPS officials in Fochville, Gauteng. While en route to the police station, the SAPS officials realised that Sefuthi was not the person they had been looking for and consequently drove back to the Engen to drop him off, battered and bruised. Sefuthi demanded compensation in the sum of R350 000 for his unlawful arrest and detention, assault, as well as his pain and suffering.
Case of assault
The next day, when opening his case of assault at the Westonaria police station (where the case docket would shortly be transferred to Fochville police station), Sefuthi deposed that he would be able to identify about four of the SAPS members that assaulted him in addition to having retrieved the CCTV footage of the horrific incident. However, for a year, Sefuthi remained in the dark, with no word on the progress of his case docket.
This case involves two applicants from Fochville police station. The first applicant, Cecilia Astle (“Astle”) was the investigator assigned to Sefuthi’s assault case. Astle, rather than investigating Sefuthi’s case and upholding his rights as enshrined in our Constitution merely deposed to an affidavit motivating for Sefuthi’s case to be closed. Yet, things took an even darker turn as Astle claimed that the case’s closure was because the suspects could not be identified when it was apparent that Sefuthi could, in fact, identify most of the SAPS members that had assaulted him, and had video evidence to qualify this. As it were, Astle deposed to the affidavit before the second applicant, Abraham Carel Greyling (“Greyling”), who was the captain and branch commander. With that, Sefuthi’s case was closed with no investigation, or even an attempt thereof.
Closure of the case
Despite Astle’s closure of the case, it was not swept under the rug and forgotten. This can be attributed to Sefuthi’s relentless enquiries about the progress of his case, to the extent of addressing a letter to the Minister of Safety and Security and the National Commissioner of the SAPS. Sefuthi’s unwavering defence of his rights serves as a reminder to us all that such behaviour must never be tolerated or accepted as the norm. Thus, in February 2018, almost a year after Sefuthi was assaulted and dragged out of an Engen garage, Astle and Greyling received a notice of alleged misconduct, based on failing to investigate Sefuthi’s matter properly and the closure of the docket. Further, this notice informed them of a pending investigation against them. Shortly after Astle and Greyling received a notice of alleged misconduct, a Lieutenant Colonel belonging to the Westrand Cluster Office, Victress Mkwebula (“Mkwebula”), was appointed to conduct an internal investigation against them. A month later, Mkwebula signed the outcome of her investigation, specifying Astle and Greyling’s alleged misconduct as a contravention of a multitude of regulations enshrined in the SAPS Discipline Regulations. Mkwebula therefore recommended that the matter be referred to departmental hearing, where it is important to note that Greyling had applied for a promotion during this period, despite Mkwebula’s “investigation” against him and Astle.
Disciplinary hearing
However, this is where the plot thickens.
Despite Mkwebula’s recommendation that Astle and Greyling’s alleged misconduct be escalated to departmental level, Mkwebula claims that due to constantly feeling “sleepy” and “dizzy”, that she “forgot” to forward her investigation report to departmental level. One can only speculate that the timing and convenience of Mkwebula’s “sleepiness” and “dizziness” played a pivotal role in facilitating the promotion of Greyling from captain and branch commander to Lieutenant Colonel. Given that Astle and Greyling were charged in December 2018 and called to attend a disciplinary hearing in March of 2019, a series of WhatsApp messages were exchanged between Greyling and Mkwebula between 12 December 2018 and early January 2019. In the messages, Greyling expressed that he was in “big trouble” or in “hot water” because he failed to disclose the pending departmental investigation against him prior to applying for the promotional post. Greyling was undoubtedly concerned about the impact of the investigation on his promotion, where it is evident from these WhatsApp messages that both Greyling and Mkwebula knew that there was trouble on the horizon.
A few weeks later, in January of 2019, in a lousy 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 and consequently, in this second report, Mkwebula confirms that Greyling and Astle’s misconduct warranted a sanction of a written warning – a direct contradiction of her first report, where Mkwebula had initially recommended that the matter be referred to a departmental hearing. To lend coherence to her second report, Mkwebula, indeed, fabricated and backdated two written warnings to Greyling and Astle. However, these manufactured written warnings were, puzzlingly, dated 25 February 2018, which was more than two weeks before the first investigation report, which was dated 14 March 2018, and eleven months before the second investigation report, which was dated 2 January 2019. Drawing from these events, the extent of the deception, irregularity and dishonesty on the part of Astle, Greyling and Mkwebula is truly perplexing.
Fake written warnings
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. According to section 35(3)(m) of the Constitution and as confirmed in Le Grange and others v S, an accused person has the right not to be tried for an offence for which that person has previously been acquitted or convicted. With this argument put forth, the chairperson of the disciplinary hearing withdrew the matter, suggesting further negligence on the part of the SAPS, as a closer examination of the written warnings would have revealed that the dates of the written warnings were chronologically inconsistent with the Mkwebula’s first report and did not contain the nature of the misconduct Astle and Greyling were disciplined for.
However, once again, and fortunately, Sefuthi’s ordeal, checkered by injustice and sheer mishandling, did not end here. In May of 2019, the Deputy Provincial Commissioner (“the DPC”) addressed a letter to the District Commissioner regarding the irregularities in the disciplinary hearing that was held against the employees. Accordingly, in the letter, the DPC states the office cannot condone a situation in which written warnings were issued before the outcome of the first investigation. The DPC emphasises that the matter of Astle and Greyling was not handled progressively. The DPC continued to observe that Mkwebula backdated the written warnings to facilitate Greyling’s promotion.
Provincial Commissioner enquiry – second disciplinary hearing
Thus, in November 2019, based on the DPC’s enquiry into the matter, 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 as undetected. The applicants were, in turn, dismissed on 21 February 2020 – almost three years after Sefuthi’s complaint at the police station. Astle was charged, first, for prejudicing the administration of the department by failing to investigate the case against the officials who assaulted Sefuthi when their identities were well known. She was charged, secondly, for conducting herself in an “improper” and “disgraceful” manner, and thirdly, for giving false evidence in the execution of her duties by stating that the suspects were unknown to Sefuthi while knowing this to be untrue. Greyling, similarly, was charged for prejudicing the administration of the department, conducting himself in an “improper” and “unacceptable” manner for allowing the investigating officer to close the docket despite overwhelming evidence in favour of Sefuthi, as well as failing to report Astle’s misconduct which was committed in his presence.
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.
Labour court review
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 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 the SAPS’ lack of timeliness in carrying out their disciplinary hearing, Judge Makhura firmly states that Mkwebula’s “reprehensible” and “rogue” conduct was the root cause of the delay. Judge Makhura also rejected the review grounds on the merits of the charges because first, Astle did not carry out Sefuthi’s investigation as her duty bound her to do. She instead, deposed to an affidavit falsely declaring that the suspects were unknown. Secondly, Greyling, as captain and branch commander at the time, failed to ensure that his subordinate carried out her duties of investigating the crime. Greyling, without applying his mind to the docket, merely approved its closure without interrogating the matter further. With this in hindsight, Judge Makhura held that the dismissal of both employees was both procedurally and substantively fair, where the applicants’ clean disciplinary records and combined service of 57 years to the SAPS held no bearing due to the gross negligence, blatant misconduct and dishonesty in the handling of Sefuthi’s case and the consequences thereof.
Blatant misconduct
Thus, as Judge Tlaletsi stated in AK v Minister of Police, our law does not require perfection – but conduct that is in line with a diligent and reasonable person. One can only imagine how many ordeals like Sefuthi’s slip between the cracks and fade into obscurity, never to be uncovered again.
From blatant misconduct and negligence to fictitious written warnings, this case cuts to the heart of our humanness and serves as a reminder to all civil servants to uphold the principles enshrined in our 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.
To ordinary citizens, it is a clarion call to demand that justice not only be seen to be done but actually is done. Sefuthi was the victim. The SAPS officials who harmed him had no right to do so under any circumstances. By standing up for himself and by persisting, the right result followed. We can all take a leaf out of Sefuthi’s book when standing up to obviously corrupt and devious officials.
Most of our public servants are focused on serving the public with honesty and integrity. However, there are bad apples (or a few bad apples in Sefuthi’s case). By addressing blatant misconduct such as Sefuthi did, we all benefit when these rotten servants are removed from public service.
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B Soc Sc LLB
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B Com LLB
B Soc Sc Hons (Psych) LLB
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