Durban - A Durban High Court judge is expected to hear argument on why he should grant acting National Police Commissioner Lieutenant-General Khomotso Phahlane’s application for leave to appeal his judgment that set aside Provincial Police Commissioner Mmamonnye Ngobeni’s suspension.
In papers before the court, Phahlane has argued that another court would arrive at a different conclusion. He also disagreed with the option of the suspended lieutenant-general returning to work pending the outcome of the appeal.
He accused her of harassing, verbally attacking, being oppositional, disrespectful and sarcastic to Major-General Bheki Langa, acting KwaZulu-Natal police commissioner.
Ngobeni, in her replying court papers opposing Phahlane’s application, denied these allegations and argued that the acting national police commissioner’s actions involved “an enormous waste of taxpayers’ monies”. She is still receiving a salary pending the outcome of any appeal, and Langa is being paid an acting police commissioner’s salary.
Ngobeni was suspended in May because of her alleged corrupt relationship with uMhlanga businessman Thoshan Panday, who was once a suspect in connection with a SAPS tender fraud and who, it is alleged, paid for a surprise birthday party for Ngobeni’s husband, Lucas, a policeman.
Her suspension came after a decision in March to set up a board of inquiry to determine whether she was guilty of misconduct, and was fit to hold office.
Ngobeni launched the Durban High Court application challenging Phahlane and Police Minister Nathi Nhleko’s decisions, saying the allegations were old and untrue.
In August, Judge Nkosinathi Chilli ruled in her favour on a “technical point” relating to an interpretation of some of the provisions of the SA Police Act.
He ruled that these had not been complied with. In particular, he said, the acting national commissioner ought to have obtained a notice of “no confidence” from the provincial executive council before setting up the disciplinary board.
He also noted that the constitution did not give the national commissioner “untrammelled powers to investigate and discipline the provincial commissioner”, and set aside the decision to set up the board of inquiry and to suspend her.
He did not deal with the merits of the allegations against Ngobeni.
She had returned to work soon after this judgment, but after two days back, she was told she was still under suspension pending the leave to appeal application.
Ngobeni argued that she was perfectly capable of carrying out her duties efficiently and in the public interest, “notwithstanding the long-standing and groundless allegations against me”. She also denied Phahlane’s allegation that her returning to work would render the appeal moot.
“I’m exercising my rights in terms of the (SA Police) Act, and the order I seek is not to render any appeal moot, but leave to continue my employment and the duties I have been appointed to perform,” her affidavit read.
Phahlane had also claimed it was against the interests of justice to allow Ngobeni to return to work pending the court’s judgment. He was referring to her allegedly accepting a gift from Panday, a “criminal suspect”.
In response, Ngobeni said she had dealt at length in her original papers on her innocence, and accused Phahlane of being unreasonably fixated on presumption of her guilt.