Daily Maverick
Dailymaverick logo

South Africa

South Africa

City of Joburg’s reappointment of Floyd Brink ruled unlawful and he must vacate position within 10 days

City of Joburg’s reappointment of Floyd Brink ruled unlawful and he must vacate position within 10 days
Nonkululeko Njilo
By Nonkululeko Njilo
4 Dec 2024
Facebook
3
A City of Johannesburg council meeting in November 2023, which led to the re-appointment of city manager Floyd Brink, was not only unconstitutional, but its process was ‘sloppy and self-serving’, the Gauteng Division of the High Court in Johannesburg found on Wednesday. 

For more than two years, the City of Johannesburg has been embroiled in a multimillion-rand legal battle – funded by taxpayers – with the Democratic Alliance (DA) over the appointment of city manager Floyd Brink. On Wednesday, 4 December, the Gauteng Division of the High Court in Johannesburg ordered that Brink relinquish his position within 10 days.    

The court’s ruling stems from the DA’s December 2023 legal challenge, after Brink was re-appointed to his position just days after the same court had declared his initial appointment unconstitutional, citing significant flaws in the process that led to it.

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

In a bid to comply with acting Judge Steven Budlender’s 2023 court order, the City removed Brink for a few days and later re-appointed him into the same position during a council meeting, without following any other processes, including re-advertising the position.  

His reappointment was spearheaded by the ANC-EFF-led multiparty government. 

On Wednesday, Judge Stuart Wilson said the City ought to have gone back to the drawing board after Brink’s removal. It should have appointed an acting city manager to replace him while the council considered its next move.  

“It was, in other words, not open to the city council to readopt the 22 and 23 February 2023 resolutions with the same unseemly haste that undercut their validity in the first place,” Wilson said. 

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

The City’s legal counsel, Tembeka Ngcukaitobi, however argued that Budlender did not explicitly order the readvertisement of the city manager’s post. 

The court ruled on Wednesday: “It is true that Budlender AJ did not order that the post be readvertised, but the effect of the order is to revive the 10 August 2022 resolution, which does require readvertisement. Accordingly, the variance between the relief the DA sought in its notice of motion and the relief Budlender AJ actually granted does not materially change the meaning of Budlender AJ’s order.”

The court also found that if the council wanted to readopt the resolutions that Budlender had declared invalid, it would need to follow the standard council procedures, including adhering to Rule 94(1), which requires that a motion be signed and submitted to the Secretary of Council 14 days prior to the council meeting at which it is to be discussed. This was not the case with Brink’s reappointment. 

“Nevertheless, for the reasons I have given, the 29 November 2023 resolution cannot stand. It must be declared unconstitutional and invalid, because it was adopted in breach of Budlender AJ order, and in breach of the city council’s own standing rules. It was, accordingly, adopted in breach of section 1 (c) of the Constitution,” Wilson found.  

“As must be abundantly clear by now, the City adopted and then acted under an erroneous construction of Budlender AJ’s order…

“The process the City adopted was sloppy and self-serving. It did not bespeak a nuanced appreciation of Budlender AJ’s judgment and order. At times, the process may have involved a degree of deceit…”

DA ‘vindicated’


Johannesburg’s incumbent executive mayor, Dada Morero, said the City was studying the judgment and would in the next few days communicate its next move after getting legal advice from its legal team.   

Meanwhile, the DA’s caucus leader, Belinda Kayser-Echeozonjoku, welcomed the court’s decision, describing it as a victory not only for the city’s residents but also the rule of law.   

“We are vindicated, because we had warned the City inside the council chambers when this decision was being made, that it’s unlawful,” she said.  

“Obviously this is a lesson for the City. It’s unfortunate that it’s not money that is going out of the people in the council’s pockets, but it’s money for the residents of Joburg that should have been used for service delivery.

“We currently have a water crisis, and the City has spent a lot of money on defending an illegal, unconstitutional decision in court, which could have been avoided if they had listened to all the dissent and concerns that were raised by DA councillors inside the council chamber,” Kayser-Echeozonjoku  said. 

At the time of going to court, the DA also sought to have the then-mayor Kabelo Gwamanda and then-speaker of council Margaret Arnolds imprisoned for contempt in court and for deliberately defying Budlender’s court order. The court, however, ruled against the party. 

“I must, in other words, be satisfied that the only reasonable inference from the proven facts is that they wilfully and in bad faith sought to transgress what they knew to be the clear strictures of Budlender AJ’s order. The facts do not bear this out. 

“Accordingly, I must refuse the DA’s application to hold the City in contempt, and to commit Ms Arnolds and Mr Gwamanda to prison, on the basis that they did not wilfully and mala fide violate the terms of Budlender AJ’s order,” the court said.  

Although Brink has been directed to relinquish the permanent post within 10 days or as soon as an acting city manager is appointed, whichever occurs first, the decisions he would have taken during his tenure will remain in place, the court said. 

Claims of judge’s bias dismissed


At the time of the debacle in 2023, the City suggested that the judge had “failed to independently and without bias, consider the valid and substantial legal arguments presented before him on the process enlisted by council in approving the report to appoint the city manager in February 2023”.

The criticism of the judge was based on the fact that he had in the past represented both the DA and the city council in a number of other matters. The court again slammed the city for this. 

“The City did not ask for Budlender AJ’s recusal when given an opportunity to do so. It did not raise any complaint of bias during the proceedings. It did not criticise Budlender AJ’s conduct of the case in its application for leave to appeal. In those circumstances, the suggestion that bias tainted Budlender AJ’s decision was wholly unfounded. It was, in my view, a gratuitous attempt to pour scorn on a decision the City did not like, but which it could find no legitimate ground to challenge,” Wilson said.    

The City has been directed to pay the DA’s costs of the application, which Daily Maverick understands to be about R1-million, including the costs of two counsel.  

Brink has had his hands full dealing with crisis after crisis throughout his tenure. At the moment, the City is battling a widespread water crisis. In July 2023, one person was killed, and several others injured after a gas explosion ripped through parts of Lilian Ngoyi Street (formerly Bree Street).  

In August 2023, at least 77 people were killed and 50 injured in a raging fire at a five-storey hijacked building on the corner of Albert and Delvers streets in Marshalltown.

A month later, 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. DM

Categories:

Tags: