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[2018] ZASCA 14
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National Police Commissioner and Another v Ngobeni (327/2017) [2018] ZASCA 14; 2018 (4) SA 99 (SCA); 2018 (2) SACR 142 (SCA) (15 March 2018)
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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.
[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
.
9
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 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 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:
‘
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.
[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.
[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.
[1]
Norwich Union Life Insurance Society v Dobbs
1912 AD 395
at 397.
[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.
[4]
Masetlha v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) paras 66-72.
[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.
[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.
[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.