The decision to prosecute retired KwaZulu-Natal police commissioner Mmamonnye Ngobeni for her alleged role in a 10-year-old fraud and corruption case involving connected Umhlanga businessman Thoshan Panday and two policemen was unconstitutional, the Durban Magistrates’ Court heard on Monday.  

Ngobeni was making her first appearance in the matter, as was Captain Aswin Narainpershad. Panday and Colonel Navin Madhoe appeared on Friday in the same court.  

Panday, Madhoe and Narainpershad face charges on 230 counts of fraud that allegedly took place between 2008 and 2010 in relation to temporary police accommodation and other services for the 2010 Fifa World Cup. The collective amount of the alleged fraud and corruption is R60-million. 

Madhoe further stands accused of trying to bribe former KZN Hawks head Johan Booysen in September 2011 – with cash allegedly supplied by Panday. Booysen was investigating the fraud and corruption allegations. Madhoe was bust in a sting – set up by Booysen – as he allegedly handed over about R1.4-million in the car park of police headquarters in Durban. 

Ngobeni stands accused of being an accessory after the fact. She is also accused of taking a bribe from Panday at the time in the form of a birthday party at an Umhlanga venue for her husband, a now-retired major general. 

Ngobeni – compared with the subdued Narainpershad – cut a relaxed figure in the dock, a black scarf wrapped around her head, black mask covering her mouth and nose, a faux fur bolero hugging her shoulders, hands moving to and fro and eyes rendered prominent via lash extensions. 

It could have been a day at the races for Ngobeni, accused number four, as she waved in the royal manner, greeting journalists with a “Hi, hi, hi”, and at one stage giggling, saying that every reporter should get the shot they wanted. Ngobeni was feeling “fabulous”, she said, when asked. 

Matters were over quickly for the slightly built Narainpershad, with the State and his attorney, Bilal Malani, having agreed to R10,000 bail. The Zondo Commission of Inquiry into Allegations of State Capture heard in January via forensic investigator Trevor White that Panday had paid R43,500 in college fees for Narainpershad’s son in 2010.

As for Ngobeni, prosecutor Talita Louw told magistrate Vanitha Armu that the State was seeking R40,000 in bail. 

“Accused number four is not any police officer, Your Worship, she was head of the KwaZulu-Natal police service, and thus there is a bigger duty upon her to serve the community and to see that justice is served. And that is why the State is asking for a higher amount.” 

Acting for Ngobeni, attorney Ravindra Maniklall addressed why his client had not been in court on Friday when Panday and Madhoe – who is also represented by Maniklall – appeared. 

The former top cop’s non-appearance led to the Investigating Directorate of the National Prosecuting Authority saying Ngobeni was considered “at large” and that she could not be contacted because her phone was off. 

It had been agreed that Ngobeni was supposed to hand herself over on October 22, said Maniklall. 

“That subsequently changed [on Friday evening] when she was phoned by one of the investigating officers and told she had to hand herself over on Monday, by which time the media had already reported that she was arrested and released.” 

He said that “implicit in the arrangement” was that his client had discussed an amount of R10,000 bail with one of the investigating officers.

“We must bear in mind that the former provincial officer is no longer in active service, since 2018. She is retired [and dependent on a pension].” 

Ngobeni had a fixed private address and was not living at the police residence she used to occupy, said Maniklall, “and that is where the State may have had some difficulty with trying to reach her”. 

He said that R10,000 would be “more than sufficient” for Ngobeni’s bail. 

Maniklall said that a decision not to prosecute her was made by the then KwaZulu-Natal Director of Public Prosecutions (DPP), Moipone Noko, in relation to the party for her husband, which was at the time a separate case to the current one, which dates back to 2010. 

Ngobeni told Daily Maverick over the weekend that she had paid Panday back for the party from her own funds. 

“There was a certificate of nolle prosequi [a decision not to prosecute] that was issued by the [provincial] director of prosecutions [Noko] in 2014. It has never been reviewed, to the knowledge of [Ngobeni], from the time it was issued in 2014, to present,” said Maniklall. 

Last month, Panday lost his bid, with costs, for a review application on that decision at the Pietermaritzburg High Court, but on September 29 applied for leave to appeal. The court was scathing in its judgment on Noko’s decision not to prosecute. She currently heads up prosecutions in North West, having been shifted to the post after leaving KZN. 

Thus, he said, in terms of section 179 (5) (d) of the Constitution, the decision to prosecute Ngobeni, given the decision taken by Noko and which had never been reviewed by any national director of public prosecutions (NDPP), was “irregular, may be irrational, and unconstitutional”. 

Maniklall also said that the decision to prosecute his client in the current case (as an accessory after the fact) was “prima facie, factually and legally unsound, irregular, irrational and unconstitutional”, because on March 25 2014, a State advocate for the Specialised Commercial Crimes Unit (SCCU) declined to prosecute. 

In her affidavit, Ngobeni said that the decision taken by the SCCU advocate was “confirmed and endorsed by the KZN DPP, advocate Noko” in a memorandum of October 2014. Noko’s decision to not prosecute her had also never undergone review by any of the country’s NDPPs, she said. 

Noko also declined to prosecute Panday and his co-accused for lack of evidence, despite reams of the stuff, including a 400-page forensic report.  It was eventually former NDPP Shaun Abrahams who said in 2017 that the matter should go ahead. 

Last month, Panday lost his bid, with costs, for a review application on that decision at the Pietermaritzburg High Court, but on September 29 applied for leave to appeal. The court was scathing in its judgment on Noko’s decision not to prosecute. She currently heads up prosecutions in North West, having been shifted to the post after leaving KZN. 

Nevertheless, further addressing the court on the alleged Fifa World Cup fraud and corruption allegations, Maniklall said that directives for the event were done at a national policing level. 

“It was done at the national office, there was a Bid Adjudication Committee that sat. She did not sign for the World Cup accommodation. She was not in charge of the contracts and the financial affairs relating to the soccer World Cup.” 

He also said it was untrue that Ngobeni had tried to stop the investigations into the alleged fraud and corruption, “because they didn’t stop [investigating] for 10 years”. 

Louw told the court she stood by her submission that the nolle prosequi certificate did not stand, and that there was “a case to answer”. 

But Maniklall pushed the issue, saying there was a strong possibility that the State may yet “concede that the nolle prosequi certificate was never ever set aside by the national director of public prosecutions – who is the only person in terms of the Constitution that can do so”, which would leave his client R40,000 out of pocket if the matter were struck from the roll. 

“The Constitution is very clear that once the director of public prosecutions [at that stage Noko] makes a decision not to prosecute – she was the highest authority in KZN at that stage – the only way it can be overturned is if the review process is undertaken by the NDPP. 

“Mr Abrahams took the review process in respect of Mr Panday, and Mr Madhoe and Mr Narainpershad, but he did not do so in respect of [Ngobeni]. This entire process is therefore completely and hopelessly unconstitutional.” 

Bail was eventually set at R20,000 for the former provincial commissioner. She and Narainpershad are set to appear again with Panday and Madhoe on November 11. DM