Durban – KwaZulu-Natal provincial commissioner, Lieutenant-General Mmamonnye Ngobeni's joy at the Durban High Court dismissal of an application that sought to keep her suspended was short lived as the South African Police Service's legal team made it very clear that they would take the matter all the way to the Constitutional Court if necessary.
Durban High Court Judge Nokosinathi Chilli on Tuesday dismissed an application to appeal his earlier judgement overturning Acting National Police Commissioner Lieutenant General Khomotso Phalane's decision to suspend provincial commissioner Lieutenant-General Mmamonnye Betty Ngobeni.
He ruled that he needed the support of the police minister and the provincial executive council to do suspend Ngobeni.
He also dismissed an application appealing his earlier judgement that set aside Phalane's right to set up a board of inquiry to determine whether Ngobeni was fit to hold office.
"To conclude, I am not satisfied that the appeal would have reasonable prospects of success, on any of the grounds, and for that reason, I make the following order: The application for leave to appeal is dismissed with costs."
After Chilli dismissed both applications with costs, Advocate Tembeka Ngcukaitobi said his client would take the matter "all the way to the Supreme Court of Appeals and the Constitutional Court" if necessary.
The next step is for SAPS to petition the Supreme Court, but this announcement by Ngcukaitobi had the effect of re-suspending Ngobeni until the outcome of the SAPS petition.
Senior counsel for Ngobeni, Greg Harpur, said that in consideration of Chilli's dismissal, he wanted the judge to hear arguments on why Ngobeni should be immediately reinstated, which Chilli allowed.
Ngobeni was suspended in May over allegations that uMhlanga businessman Thoshan Panday paid for a lavish surprise birthday party for her husband, Brigadier Lucas Ngobeni.
She also faces allegations that she ordered the head of the Directorate for Priority Crime Investigation (Hawks) in KwaZulu-Natal to stop investigating Panday in connection with inflated prices for police accommodation during the 2010 soccer world cup.
Ngobeni has claimed that she paid back Panday and denies interfering with the investigation against the businessman, which was led by KwaZulu-Natal Hawks boss Major-General Johan Booysen.
Ngobeni was in court on Tuesday, but refused to speak to the media and instead directed all questions to her counsel. Harpur told the court that his client was languishing at home on full pay when she could be "serving the community".
Ngobeni would suffer irreparable harm should she not be reinstated, he said, as would SAPS.
"The specialised crime unit refused to prosecute, and the new proposed investigation occurred suddenly after the national acting police commissioner was instated," he said.
Phahlane wanted to investigate things that had already been investigated, said Harpur.
"He is on a frolick of his own."
"Two National Prosecuting Authority heads have said they won't prosecute, but the new acting commissioner wants it investigated."
Reading from Ngobeni's affidavit, Harbur said that her appointment came up for renewal in 2014 and her tenure was extended another five years. This was done precisely because the allegations against her had no substance, he said.
"Why force a suspension when she is willing and able to serve the public?" he questioned.
But Ngcukaitobi hit back, saying that reinstating a senior police officer that allegedly consorted with criminals would be damaging to the SAPS. He reminded the court that the Independent Police Investigative Directorate (IPID) had sent the acting national police commissioner a report that related to systematic corruption within the KZN police, in which Ngobeni and others were implicated.
The NPA had also decided in September to charge Panday, he said. (Those charges relate to Panday and another SAPS officer, Colonel Madhoe, allegedly trying to bribe Hawks boss Johan Booysen.)
Harpur had told Chilli that the case was drawn out to the detriment of his client, who had to fund her own counsel, while SAPS had all the resources of the state at its disposal.
But according to Ngcukaitobi, "between June and August, they took no steps. "In August, we filed leave to appeal and they took no steps. They sat on their laurels. Now counsel says they are concerned by the delay."
He said that both parties could come together and agree on dates for replying affidavits and such, but when this was put to Ngobeni's counsel, no response had been received. "The issue of delaying is being used to their advantage," he told the court.
"It is in the country's interest that this is done speedily. But the applicant is using the delays as an exploitative tool," said Ngcukaitobi.
Ngcukaitobi said the matter could be heard in June or August by the SCA if both parties were serious. He said that there would be no disciplinary action taken against Ngobeni until the Supreme Court of Appeal had made a ruling.
"SAPS wants to preserve the status quo until the SCA had ruled."
He said that if Ngobeni’s suspension was lifted, witnesses who said they were willing to give evidence might be intimidated.
"What impact will her returning to work have? She will have access to records that will be used against her."
But Harpur said there had been no allegations of interfering with witnesses in the six years of the investigation.
"My client has behaved perfectly properly. There is no suggestion that she has tried to influence witnesses or disrupt records," he said.
Chilli reserved judgment.