Phahlane loses bid to keep KZN provincial commissioner suspended

Acting national police commissioner Khomotso Phalane. Photo: SAPS

Acting national police commissioner Khomotso Phalane. Photo: SAPS

The judge had previously found that Phahlane did not have the authority to suspend Ngobeni in May.

KwaZulu-Natal’s provincial commissioner will be returning to work after acting national police commissioner Lieutenant-General Khomotso Phahlane failed in his bid to keep her out of office.

Durban High Court judge Nkosinathi Chilli dismissed an application to appeal his earlier judgment overturning Phahlane’s decision to suspend provincial commissioner Lieutenant-General Mmamonnye Betty Ngobeni.

The application was dismissed with costs on Tuesday.

Chilli had previously found that Phahlane did not have the authority to suspend Ngobeni in May, as he needed the support of the police minister and the provincial executive council.

Phahlane had also given Ngobeni notice that he intended establishing a board of inquiry to investigate allegations of misconduct and her fitness to hold office.

In his ruling on Tuesday, Chilli said that Phahlane’ s application for leave to appeal was founded on three grounds. “That this court was firstly wrong in its interpretation of the provisions of Section 8 and 9 of the South African Police Services Act 68 of 1995.

“Secondly, in finding that it was ceased with determining part B of the relief sought by the respondent and thirdly, in setting aside the decisions made by the applicant (the acting national police commissioner) on 18 March and 17 May respectively.”

Chilli said that in support of the first ground of appeal, [advocate Reghana Tulk] submitted that the question decided by the court, namely the interpretation of Sections eight and nine of the SAPS act, was novel and therefore deserved attention of a superior court. “The mere fact that the question decided by a court is novel is no justification for allowing leave to appeal,” said Chilli.

“The second ground of appeal was, in my view, adequately dealt with by this court. Before concluding that it was seized with part B of the relief, this court satisfied itself that sufficient material was placed before it to deal with and also pronounce on that part of the respondent’s relief,” he said.

Chilli said that the court had allowed counsel sufficient opportunity to argue and make submissions on part B, and they did.

“I am therefore satisfied that there are no prospects that another court might find that this court was not ceased with part B of relief sought by the respondent,” he said.

“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.”

Ngobeni has been in the spotlight over allegations that businessman Thoshan Panday paid for her husband’s lavish birthday party. 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 a R60 million police accommodation tender.

Ngobeni has claimed that she paid Panday back and denies interfering with the investigation against the businessman, which was led by KwaZulu-Natal Hawks boss Major-General Johan Booysen.

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