City of Joburg flouts high court ruling and reappoints city manager Floyd Brink

The City of Johannesburg’s city manager, Floyd Brink, has been reappointed three weeks after the Gauteng Division of the High Court in Johannesburg ruled that his appointment was unlawful and that he must be replaced within 10 days.

The reappointment was made possible by a “re-tabled and previously adopted” report by the ANC/EFF/PA alliance, which also enjoys the support of other smaller political parties including the AIC, during an ordinary council meeting on Wednesday.

The DA vehemently opposed and voted against the motion, but was defeated as it did not have the necessary majority. This comes after it challenged Brink’s appointment, which took place in February, in the high court.

On 7 November, acting Judge Steven Budlender ruled in favour of the DA and ordered that the appointment be reversed due to the unlawful processes leading up to Brink’s appointment.

“The decision of the second respondent, the Council of the City of Johannesburg Metropolitan Municipality, on 22 February 2023 to rescind the prior decision to re-advertise the position of the City Manager; and authorise the Executive Mayor to apply ‘corrective measures pertaining to the recruitment process of the City Manager, Mr Floyd Brink, as a matter of urgency’, is declared unconstitutional, unlawful and invalid,” Budlender found.

Read more in Daily Maverick: High court finds Floyd Brink’s appointment as Joburg city manager ‘unconstitutional, unlawful and invalid’ 

The city, however, filed an application for leave to appeal. On Monday, the application was dismissed with costs by the same judge on the basis that it bore no prospects of success and there had been “no other compelling reason for leave to appeal to be granted”.

Following Wednesday’s council meeting, city spokesperson Mlimandlela Ndamase said they were still of the view that the high court had “failed to independently and without bias, consider the valid and substantial legal arguments presented before it on the process enlisted by council in approving the report to appoint the city manager in February 2023”.

Ndamase said the re-tabling and subsequent appointment of Brink was to expedite service delivery and ratify the areas identified by the court as rendering the appointment unlawful, invalid and unconstitutional.

‘In contempt’

Speaking to Daily Maverick, DA chief whip Belinda Kayser-Echeozonjoku expressed an intention to further challenge the appointment, which it considered not only illegal, but also in contempt of the court ruling.

“This decision is clearly in contempt of court based on the judgment handed down and dismissal of leave to appeal handed down on Monday. The rules of council are also clear that matters that are before a court of law, or [section] 79 committee cannot be brought to council.  

“What was interesting is that the city did not attach the judgment of Monday with [the] appeal dismissed into the documents [in council], making the report incomplete as well… We are consulting with our attorneys at the moment in this regard,” Kayser-Echeozonjoku said.

Brink was appointed as city manager in February despite being censured in a forensic investigation commissioned by the city’s Group Forensics and Investigation Services (GFIS) into the Department of Public Safety’s procurement of handheld devices and CCTV equipment.  

The report, produced by the law firm ENS for the GFIS, noted that Brink had acted in a manner that “appears to constitute a dereliction of duty” and “gross misconduct”, and recommended that he be reported to the council for further investigation and disciplinary action.

City defends appointment

Johannesburg Executive Mayor Kabelo Gwamanda told Daily Maverick that it had become a norm for the opposition to take matters to court, which he would fight against.

“The city wants to protect the integrity of the processes of both the executive as well as the council, whereby a political party would not be able to overturn decisions.”

Gwamanda also took issue with the high court decisions, which he argued were malicious and not in the interest of residents.  

The city plans to appeal against the court’s decision. In taking further legal action, possibly at the Supreme Court of Appeal, Gwamanda said he was not casting doubt on the legal system but was “merely fighting for the independence of council”.

While congratulating Brink on Wednesday, Gwamanda said he looked forward to “continued administrative stability and uninterrupted delivery of services”.

In a statement on Monday, following the high court’s decision to dismiss the city’s application for leave to appeal, city spokesperson Ndamase suggested bias on the part of the court for repeatedly failing to “reasonably assess and pronounce” on the legal matters before it.

“It remains a strongly held view of the city that a higher court may come to a different and independent conclusion on the said matter and as such the city has decided to consider the judgment and to exercise its legal rights and to petition the Supreme Court of Appeal (SCA) to directly hear and adjudicate the matter,” Ndamase said.

On Wednesday, however, the city said, “It is the considered view of the city that today’s vote renders the intention to petition the Supreme Court of Appeal on the same matter moot.”

City on a Brink

Brink has had his hands full since the start of his tenure in February,  dealing with crisis after crisis in recent months. In July, one person was killed and several others injured after a gas explosion ripped through parts of Lilian Ngoyi Street (formerly Bree Street).

In August, at least 77 people were killed and 50 injured in a raging fire at a  hijacked five-storey building on the corner of Albert and Delvers streets in Marshalltown.

In September, a fire caused by faulty transformers at the Joburg Metro Centre shut down the building responsible for administering the city. Following this, a bid evaluation committee sought Brink’s approval for a R2-billion refurbishment of the building. 

Two senior council members said Brink was never dismissed after the judgment. He had been reporting for duty, but on Wednesday was not present. He was reportedly told to “lie low” until the report was passed on Wednesday. He could not be reached for comment at the time of publishing.

AmaBhungane has reported that Brink was a controversial figure in the metro because of his alleged historical links to Julius Malema and the EFF. In April 2013, while a manager at the Limpopo Department of Roads and Transport, Brink was arrested as part of a sweeping corruption investigation that implicated officials and business people.

Read more in Daily Maverick: DA, EFF, ActionSA – Joburg council set for showdown over city manager appointment

The same investigation netted Malema, in addition to several associates of the then ANC Youth League leader, including his cousin Tshepo Malema. Brink was tried and acquitted in 2013. The other cases went nowhere. DM