National Police Commissioner v Betty Mmamonnye Ngobeni (Provincial Police Commissioner: KwaZulu-Natal)

In 2009, Lieutenant General Ngobeni (the respondent) was appointed as the Provincial Commissioner for KwaZulu-Natal of the South African Police Service. Her appointment was renewed in 2014 by General Phiyega. On 18 March 2016, the acting National Commissioner, Lieutenant General Phahlane, served her with notice of the establishment of a board of inquiry into alleged misconduct, unfitness for office, and/or capacity to execute duties efficiently. On the same day, he served her with a notice of intended suspension. After receiving her submissions, Lieutenant General Phahlane suspended her with effect from 20 May 2016. Lieutenant General Ngobeni brought proceedings in the KwaZulu-Natal High Court to review and set aside both the establishment of the board of inquiry and her suspension. She succeeded before Chili J in the High Court. Leave to appeal was granted on petition to the Supreme Court of Appeal.

• Whether the National Commissioner had the legal authority to establish a board of inquiry into alleged misconduct, unfitness for office or incapacity of a Provincial Commissioner without the involvement of the Provincial Executive Council
• The proper interpretation of sections 8 and 9 of the South African Police Service Act 68 of 1995 in light of sections 205-207 of the Constitution
• Whether the incorporation of section 8(8) mutatis mutandis into section 9 requires reference to the Provincial Executive Council before establishing a board of inquiry
• The extent of the National Commissioner's power to exercise control over and manage the police service in relation to Provincial Commissioners

The application to strike the appeal from the roll was dismissed with costs. The appeal was upheld with costs. The order of the High Court was altered to read: 'The application is dismissed with costs.'

The National Commissioner has the constitutional and statutory authority under sections 207(2) and (4) of the Constitution and sections 8(8) and 9 of the South African Police Service Act 68 of 1995 to establish a board of inquiry into alleged misconduct, unfitness for office or incapacity of a Provincial Commissioner without reference to or approval from the Provincial Executive Council. When section 8(2)(c) is incorporated mutatis mutandis into section 8(8) and then into section 9, the words 'upon receipt of the notice' must be omitted as they are inappropriate to the context where the National Commissioner acts on his/her own initiative. The deliberate exclusion of sections 8(2)(a) and (b) from section 8(8) means these provisions cannot be imported through the words 'upon receipt of the notice' – the incorporation mutatis mutandis affects only the provisions expressly incorporated with necessary amendments, not matter deliberately excluded. Provincial Commissioners perform their functions subject to the National Commissioner's power to exercise control over and manage the police service, and making the institution of an inquiry dependent on Provincial Executive Council support would hamper proper management of the police service.

The court noted, without needing to decide, that the President's power to dismiss the National Commissioner may arise from the Constitution alone and may not be linked solely to the Cabinet's loss of confidence. The court observed that loss of confidence in a police commissioner may arise for many reasons not necessarily linked to misconduct, unfitness for office or lack of capacity, and is far more likely to arise from dissatisfaction with the manner in which they discharge their duties and whether the police service is fulfilling its functions satisfactorily. The court commented briefly on the respondent's application to strike the appeal from the roll based on irrelevant documents in the record, describing one submission as 'a perfectly ridiculous point' quoting Innes ACJ. The court also noted there was no attempt to pursue other grounds of review in argument before the Supreme Court of Appeal, which was 'wise' as the acting National Commissioner was in possession of prima facie evidence of misconduct.

This case clarifies the power of the National Commissioner of Police to institute disciplinary proceedings against Provincial Commissioners without reference to Provincial Executive Councils. It establishes the proper interpretation of sections 8 and 9 of the South African Police Service Act 68 of 1995, particularly the meaning of applying provisions 'mutatis mutandis' in the context of police governance. The judgment affirms the National Commissioner's constitutional authority under section 207(2) and (4) of the Constitution to exercise control over and manage the police service, including Provincial Commissioners, without interference from provincial political structures when dealing with allegations of misconduct, unfitness for office, or incapacity. The case demonstrates the hierarchical command structure within the South African Police Service and the supremacy of the National Commissioner's management powers over provincial considerations in disciplinary matters.