THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 327/2017

In the matter between:
THE NATIONAL POLICE COMMISSIONER
FIRST APPELLANT
THE MINISTER OF POLICE

SECOND APPELLANT
and
BETTY MMAMONNYE NGOBENI
(PROVINCIAL POLICE COMMISSIONER: KWAZULU-NATAL)

RESPONDENT
Neutral citation: National Police Commissioner v Ngobeni (327/2017)
[2018] ZASCA 14 (15 March 2018)
Coram:
SHONGWE
ADP,
WALLIS,
SALDULKER
and
MATHOPO JJA and PLASKET AJA
Heard:
1 March 2018
Delivered: 15 March 2018
Summary: Institution of a board of inquiry into alleged misconduct,
unfitness for office or incapacity of a provincial commissioner of police –
powers of national commissioner of police in terms of ss 8 and 9 of South
African Police Service Act 68 of 1995 – s 207 of Constitution

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Durban
(Chili J sitting as court of first instance):
1 The application to strike the appeal from the roll is dismissed with
costs.
2 The appeal is upheld with costs.
3 The order of the High Court is altered to read:
‘The application is dismissed with costs.’

JUDGMENT

Wallis JA (Shongwe ADP, Saldulker and Mathopo JJA and Plasket
AJA concurring)

[1] In 2009 the respondent, Lieutenant General Ngobeni, was
appointed as the Provincial Commissioner for KwaZulu-Natal of the
South African Police Service. Her appointment was renewed in 2014 by
the then National Police Commissioner, General Phiyega. On 18 March
2016 the then acting National Commissioner, Lieutenant General J K
Phahlane, served her with notice of the establishment of a board of
inquiry into ‘alleged misconduct and/or fitness 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. This
prompted Lieutenant General Ngobeni, citing herself as the Provincial

Police Commissioner KwaZulu-Natal, to bring proceedings in the
KwaZulu-Natal, Durban, High Court to review and set aside both the
establishment of the board of inquiry and her suspension. The application
succeeded before Chili J. He refused leave to appeal, but leave was given
on petition to this Court.

Lapsing of the appeal
[2] I deal briefly at the outset with an application by Lieutenant
General Ngobeni, for an order declaring the appeal to have lapsed and
striking it from the roll. There is no merit in this application. It was based
upon two points. The one was that the record included a document in the
form of an affidavit that was not before the High Court. The simple
answer to that is that the members of this Court ignored the document as
they would any other irrelevant material placed before them. As Innes
ACJ once commented in argument about a similar submission, ‘this is a
perfectly ridiculous point’.1 The second was that in the High Court the
Provincial Executive Council, KwaZulu-Natal was cited as the Third
Respondent, but played no part in the proceedings. Nonetheless in the
preparation of the record it was reflected on the cover of the record as the
second respondent. It commonly occurs that parties who were cited but
did not participate in the proceedings in the High Court are nonetheless
shown on the cover of the record and other documents in this court as a
party in the appeal. If that occurs it is irrelevant and is ignored, as it was
in this case. The application will be dismissed and the respondent must
pay the costs in relation thereto.

1 Norwich Union Life Insurance Society v Dobbs 1912 AD 395 at 397.

[3] In the event of the respondent not securing an order declaring the
appeal to have lapsed, she sought condonation of the late filing of her
heads of argument. This was granted without opposition at the outset of
the appeal. I turn to the merits.

The issues
[4] The central issue in both the High Court and this Court was
whether Lieutenant General Phahlane was in law entitled to establish the
board of inquiry and, pursuant to its establishment, to suspend Lieutenant
General Ngobeni from her position as Provincial Commissioner for
KwaZulu-Natal. The answer to that question lies in a consideration of the
provisions of ss 205 to 207 of the Constitution and those of ss 8 and 9 of
the South African Police Service Act 68 of 1995 (the Act). If that
question is answered adversely to Lieutenant General Ngobeni, because
the National Commissioner did indeed have these powers, then in the
alternative, their exercise was challenged on conventional review
grounds.

[5] Section 207(1) of the Constitution provides for the President as
head of the national executive to appoint the National Commissioner of
the police service. This is reflected and confirmed in s 6(1) of the Act.
Section 207(3) of the Constitution provides that:
‘The National Commissioner, with the concurrence of the provincial executive, must
appoint a woman or a man as the provincial commissioner for that province . . .’
That constitutional provision is reflected and confirmed in s 6(2) of the
Act. It can be accepted that Lieutenant General Ngobeni was appointed as
the Provincial Commissioner for KwaZulu-Natal in accordance with
these provisions.

[6] This case concerns the circumstances in which alleged misconduct
or unfitness for service or incapacity to fill their post on the part of a
Provincial Commissioner of police may be investigated and resolved,
potentially resulting in him or her being dismissed or otherwise
disciplined. Three other provisions of the Constitution have a bearing on
this question. Under s 207(2) the National Commissioner:
‘. . . must exercise control over and manage the police service in accordance with the
National Policing Policy and the directions of the Cabinet member responsible for
policing.’
Under s 207(4) the Provincial Commissioners are responsible for policing
in their respective provinces as prescribed by national legislation, but:
‘subject to the power of the National Commissioner to exercise control over and
manage the police service in terms of subsection (2).’
Finally, in terms of 207(6):
‘If the provincial commissioner has lost the confidence of the provincial executive,
that executive may institute appropriate proceedings for the removal or transfer of, or
disciplinary action against, that commissioner, in accordance with national legislation.

[7] The national legislation referred to in these sections is the Act, the
key provisions of which are ss 8 and 9. In relevant part they read as
follows:
‘8
Loss of confidence in National or Provincial Commissioner
(1)
If the National Commissioner has lost the confidence of the Cabinet, the
President may establish a board of inquiry … to —
(a)
inquire into the circumstances that led to the loss of confidence;
(b)
compile a report; and
(c)
make recommendations.
(2)(a)  If a Provincial Commissioner has lost the confidence of the Executive
Council, the member of the Executive Council may notify the Minister of such
occurrence and the reasons therefor.

(b)
The Minister shall, if he or she deems it necessary and appropriate, refer the
notice contemplated in paragraph (a) to the National Commissioner.
(c)
The National Commissioner shall, upon receipt of the notice establish a board
of inquiry … to —
(i)
inquire into the circumstances that led to the loss of confidence;
(ii)
compile a report; and
(iii)
make recommendations.
(d)
…
(3)(a) The President or National Commissioner, as the case may be, may, after
hearing the Commissioner concerned, pending the outcome of the inquiry referred to
in subsection (1) or (2)(c); suspend him or her from office …
(4) to (7) …
(8)
If a Provincial Commissioner has lost the confidence of a National
Commissioner, the provisions of subsections (2)(c) and (d), (3), (4), (5), (6) and (7)
shall apply mutatis mutandis.
Misconduct by or incapacity of National or Provincial Commissioner
(1)
Subject to this section, subsections (1) to (8) of section 8 shall apply mutatis
mutandis to any inquiry into allegations of misconduct by the National or Provincial
Commissioner, or into his or her fitness for office or capacity for executing his or her
official duties efficiently.
(2)
The board of inquiry established by virtue of subsection (1) shall make a
finding in respect of the alleged misconduct or alleged unfitness for office or
incapacity of executing official duties efficiently, as the case may be, and make
recommendations as contemplated in section 8(6)(b).’

[8] Lieutenant General Ngobeni contended that if the National
Commissioner wished to institute an inquiry into allegations of
misconduct against her, or her fitness for office, or capacity for executing
her official duties efficiently, the route he had to follow was to refer the
matter to the Provincial Executive Council of KwaZulu-Natal. If the
Provincial Executive Council formed the view that the National
Commissioner’s concerns resulted in a loss of confidence in the

Provincial Commissioner, then it would have been obliged to notify the
Minister of that fact and of its reasons for reaching that conclusion.
Thereafter the Minister, if he or she deemed it necessary and appropriate,
could have referred the notice to the National Commissioner. Once that
happened the National Commissioner would have been obliged to
constitute a board of inquiry. The acting National Commissioner did not
follow that route.  It was alleged accordingly that he acted without lawful
authority in constituting the board of inquiry and suspending Lieutenant
General Ngobeni. This argument was upheld by the High Court.

The law
[9] Whether the National Commissioner had the powers he purported
to exercise is a matter of interpreting the provisions of s 9 of the Act,
which is the section dealing with alleged misconduct, unfitness for office
or incapacity, in the light of the relevant constitutional provisions. That
exercise is to be undertaken in the light of the summary of the proper
approach to interpretation in Endumeni,2 a judgment that has been
repeatedly cited and followed in this court and in the Constitutional
Court.3

[10] Sections 8 and 9 of the Act deal with two separate situations that
may lead to the termination of the appointment of the National
Commissioner or a Provincial Commissioner. The first, in s 8, is where
there is a loss of confidence in the incumbent. The second, in s 9, is
where there is misconduct by the incumbent, or circumstances arise

2 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) para 18.
3 Most recently in Municipal Employees Pension Fund v Natal Joint Municipal Pension Fund
(Superannuation) and Others [2017] ZACC 43; 2018 (2) BCLR 157 (CC) para 28 and Trinity Asset
Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited  [2017] ZACC 32; 2018 (1) SA
94 (CC); 2017 (12) BCLR 1562 (CC) para 52.

causing them to be unfit for office or to lack the capacity to execute their
official duties efficiently. It is first necessary to deal with s 8 and
situations of loss of confidence. The reason is that, because the provisions
of sub-sections (1) to (8) of s 8 are incorporated mutatis mutandis in
relation to investigations under s 9, the proper construction of those sub-
sections must be determined before one can assess what changes will be
necessary in applying s 9.

[11] Loss of confidence in a police commissioner may arise for many
reasons and is not necessarily linked to any misconduct, unfitness for
office or lack of capacity. It is far more likely to arise because of
dissatisfaction with the manner in which they are discharging the duties
and functions of their office and whether under their command the South
African Police Service, nationally or provincially, is fulfilling its
functions in a satisfactory manner.

[12] The Act does not deal with the situation where the President loses
confidence in the National Commissioner of Police, but it is a necessary
corollary of the President’s power to appoint the National Commissioner
that the President may also dismiss the incumbent.4 However, when
appointing the National Commissioner under s 206(1) of the Constitution,
the President is acting as head of the national executive and accordingly
exercises the executive authority to make that appointment together with
the other members of the Cabinet in terms of s 85(2)(e) of the
Constitution. For that reason, s 8(1) provides that if the Cabinet loses
confidence in the National Commissioner the President must appoint a

4 Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566
(CC) paras 66-72.

board of inquiry to inquire into the circumstances leading to that loss of
confidence, to report and to make recommendations.5

[13] The parallel provision in s 8(2) applies if the Executive Council of
a province loses confidence in its local Provincial Commissioner. The
reason is again apparent, namely, that the Executive Council played a role
in the appointment of the Provincial Commissioner and, if it has lost
confidence in the person it helped to appoint, it should be able to address
that situation. Section 207(6) of the Constitution contemplates this and
s 8(2)(a) is the required legislative response to it. When invoked the
Executive Council must notify the Minister of Police in the national
government of its loss of confidence in the Provincial Commissioner and
give its reasons for that occurring.6 No involvement on the part of the
National Commissioner is required. If the Minister of Police deems it
necessary and appropriate to do so the notice from the Executive Council
is referred to the National Commissioner, who is then obliged to
constitute a board of inquiry in terms of s 8(2)(c) of the Act to inquire
into the circumstances leading to the loss of confidence, report and make
recommendations.

[14] The third situation dealt with under s 8 is where the National
Commissioner, as the person constitutionally responsible for the
appointment of Provincial Commissioners, loses confidence in a
Provincial Commissioner. That is dealt with in s 8(8) and it is appropriate
to repeat the provisions of that section. It reads:

5 It is unnecessary for present purposes to decide whether the President’s power to dismiss the National
Commissioner is linked to a loss of confidence in the incumbent on the part of the Cabinet or whether
this is a separate and distinct power arising from the Constitution alone.
6 Section 8(2)(a) of the Act.

‘If a Provincial Commissioner has lost the confidence of a National Commissioner,
the provisions of subsections (2)(c) and (d), (3), (4), (5), (6) and (7) shall apply
mutatis mutandis.’

[15] It is notable that the earlier provisions of ss 8(2)(a) and (b), that
apply when an Executive Council’s loses confidence in the Provincial
Commissioner, are not made applicable when the National Commissioner
loses confidence in a Provincial Commissioner. Only s 8(2)(c), which is
the section dealing with the establishment of the board of inquiry, applies
and even then it is applicable mutatis mutandis, that is, ‘with necessary
changes in point of detail’.7 The word ‘necessary’ deserves emphasis. It is
not for the court to redraft the section, but merely to change those things
that are essential to it being of application in its new setting.

[16] What changes are necessary to make the provisions of s 8(2)(c)
applicable in the context of the National Commissioner’s loss of
confidence in a Provincial Commissioner, and the need consequent upon
that to establish a board of inquiry? One only has to read the section to
realise that the words ‘upon receipt of the notice’ are glaringly
inappropriate. Those words refer to a notice by the Minister of Police
under s 8(2)(b), arising from the Minister’s consideration of an Executive
Council’s report under s 8(2)(a) that it has lost confidence in its
Provincial Commissioner. Section 8(8) has no bearing on that situation.
Its concern is the National Commissioner’s loss of confidence in the
Provincial Commissioner, not that of the Executive Council.

7 Touriel v Minister of Internal Affairs 1946 AD 535 at 545; South African Fabrics Ltd v Millman NO
and Another 1972 (4) SA 592 (A) at 600C-E.

[17] The omission of the words ‘upon receipt of the notice’ in s 8(2)(c)
resolves the difficulty. That is also a sensible construction. If the National
Commissioner loses confidence in a Provincial Commissioner that ought
to be the subject of inquiry. The National Commissioner is responsible in
terms of s 207(2) of the Constitution for control over and management of
the police service. Under s 207(4) Provincial Commissioners perform
their functions subject to the power of the National Commissioner to
exercise control over and manage the police service. There is no
conceivable reason and none was suggested why the institution of a board
of inquiry into the National Commissioner’s loss of confidence in a
Provincial Commissioner should be constrained by the need to follow the
route under s 8(2)(a) and (b). Making the institution of such an inquiry
dependent on the support of the Executive Council and a possible veto by
either that body, or the Minister of Police, is not sensible and could
hamper the proper management of the police service.

[18] The argument on behalf of Lieutenant General Ngobeni does not
contemplate any amendment at all to s 8(2)(c). It was based on the
proposition that the words ‘upon receipt of the notice’ have the effect of
importing into s 8(8) the provisions of sub-sections  8(2)(a) and (b),
notwithstanding their deliberate omission from that section. That is an
impermissible approach involving a misconception of what is meant
when provisions in one section are incorporated mutatis mutandis into
another having a different subject. Such incorporation affects only the
provisions expressly incorporated and the necessary amendment of those
provisions in their new setting. It cannot incorporate matter that is
deliberately excluded.

[19] In summary therefore, s 8 deals separately with the Cabinet losing
confidence in the National Commissioner and either the Executive
Council of a province, or the National Commissioner, losing confidence
in a Provincial Commissioner. In the first case, the President, and in the
latter two cases, the National Commissioner, must establish a board of
inquiry. The composition of the board, the subject and manner of
conducting the inquiry and the possible outcomes are in each instance the
same. Under s 8(3)(a) the President, or the National Commissioner, as the
case may be, is entitled to suspend the National Commissioner or the
Provincial Commissioner once a board of inquiry has been established.
Lastly, if the National Commissioner is the person who has lost
confidence in a Provincial Commissioner the establishment of a board of
inquiry and, pursuant thereto, a suspension of the affected Provincial
Commissioner requires no input from the Executive Council of the
province concerned, even if it disagrees with the National Commissioner.

[20] Turning then to s 9(1), the provisions of sub-sections 8(1) to 8(8)
inclusive are made applicable mutatis mutandis to any inquiry into
allegations of misconduct, unfitness for office or incapacity on the part of
either the National Commissioner or a Provincial Commissioner.
Manifestly that cannot mean that all of those sub-sections are applicable
when the President is dealing with alleged misconduct on the part of the
National Commissioner. Nor can they all apply where the National
Commissioner is considering alleged misconduct on the part of a
Provincial Commissioner. By way of example, sub-section (1) can only
apply where the President institutes an inquiry into alleged misconduct by
the National Commissioner and sub-sections (2) and (8), which deal only
with alleged misconduct involving Provincial Commissioners, have
nothing to do with that situation. The converse is equally true, that sub-

section (1) has no application to an inquiry in respect of a Provincial
Commissioner.

[21] Section 9 makes s 8(8) applicable mutatis mutandis to inquiries
into alleged misconduct, unfitness for office or incapacity. As explained
in the analysis of s 8(8) in paragraphs 14 to 19 of this judgment, the
National Commissioner’s decision to establish a board of inquiry to
investigate a loss of confidence in a Provincial Commissioner does not
require a reference to the Provincial Executive. Similarly, when an
investigation into a Provincial Commissioner’s alleged misconduct,
unfitness for office or incapacity is called for, the National Commissioner
must establish a board of inquiry without reference to the Executive
Council of the province and whether or not the Executive Council has lost
confidence in the Provincial Commissioner.

[22] I am aware that s 9(1) appears to apply the whole of s 8(2) mutatis
mutandis, but that must be viewed alongside its similar incorporation of
s 8(8), which only incorporates s 8(2)(c). As the latter section deals with a
situation where the National Commissioner acts of his or her own
volition, while the former is concerned with the Executive Council, which
is not implicated in and cannot instigate an inquiry into alleged
misconduct, unfitness for office or incapacity,8 it is to the latter that we
must look. That being so the National Commissioner need not refer
alleged misconduct, unfitness for office or incapacity on the part of a
Provincial Commissioner to the Executive Council of the relevant
province before appointing a board of inquiry into those matters.

8 It could of course do so indirectly by referring such matters to the National Commissioner, but it has
no power to do so of its own volition.

[23] It follows that the approach of the High Court was incorrect. There
was no attempt in argument before us to pursue the other grounds of
review. That was wise as the acting National Commissioner was in
possession of prima facie evidence of misconduct when he took the
decision to establish a board of inquiry and suspend Lieutenant General
Ngobeni. The other review grounds were accordingly unfounded.  The
appeal must succeed and the following order is made:
1 The application to strike the appeal from the roll is dismissed with
costs.
2 The appeal is upheld with costs.
3 The order of the High Court is altered to read:
‘The application is dismissed with costs.’

_______________________
M J D WALLIS
JUDGE OF APPEAL

Appearances
For appellant:
T Ngcukatoibi (assisted in drafting heads of argument
by F Hobden and R Taki)
Instructed by:
The State Attorney, Durban and Bloemfontein

For respondent:
P Daniels SC (Heads of argument prepared by G
Harpur SC and K Thango)

Instructed by:
Ravindra Maniklall & Company, Umhlanga
Hill, McHardy and Herbst, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
15 March 2018
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
National Police Commissioner v Ngobeni

The SCA today upheld an appeal against the decision of the
KwaZulu-Natal Division of the High Court, Durban setting aside the
suspension of Lieutenant General Ngobeni, the provincial police
commissioner, KwaZulu-Natal.
The then National Police Commissioner had established a board of
inquiry into alleged misconduct or unfitness for office of Lieutenant
General Ngobeni arising out of a surprise birthday party arranged by a
Durban businessman, Mr Panday, for her husband, also a senior
policeman. This was challenged on the basis that the National Police
Commissioner lacked the powers under section 9, read with section 8, of
the Police Service Act 68 of 1995 (the Act) to establish a board of inquiry
unless he had first referred the matter to the Executive Council,
KwaZulu-Natal and it had in turn referred the matter to the national
Minister of Police, who had authorised the establishment of a board of
inquiry. The challenge was upheld in the High Court and both the
establishment of the board of inquiry and the suspension were set aside.

On appeal the SCA pointed out that s 9 of the Act deals with
possible misconduct or unfitness for office, while s 8 deals with a loss of
confidence in the national or a provincial police commissioner. The Act
provides in the latter situation that the parties involved in their
appointment, namely, the Cabinet in the case of the national
commissioner and the relevant provincial Executive Council or the
national commissioner in respect of a provincial police commissioner are
given powers to establish or have established a board of inquiry and in
the case of a provincial police commissioner the national commissioner is
given the power to suspend.

The provisions of s 8 are incorporated with the necessary changes
in s 9 dealing with misconduct or unfitness for office. As the national
commissioner is empowered under s 8 to establish a board of inquiry and
suspend a provincial commissioner when he or she has lost confidence in
the provincial commissioner, the same is true of a situation where the
national commissioner believes that there is misconduct or possible
unfitness for office to be investigated. This does not require any
involvement on the part of the provincial executive council. Accordingly
the appeal was upheld and the original application dismissed.