Mayor slates DA after high court rules on Brink

Opposition party welcomes ruling on city manager

08 November 2023 - 07:35
By Mpho Sibanyoni
Johannesburg City Manager Floyd Brink's appointment has been ruled
unlawful.
Image: Freddy Mavunda Johannesburg City Manager Floyd Brink's appointment has been ruled unlawful.

Joburg mayor Kabelo Gwamanda says he disapproves of the high court ruling that says municipal manager Floyd Brink’s appointment is unlawful.

Johannesburg high court acting judge S Budlender ruled in favour of the DA, one of the political parties in the city council, after it challenged the validity of Brinks appointment following a forensic report that was found against him.

The high court’s order has, however, been suspended for 10 days to allow the city to appoint an acting municipal manager.

Budlender also ruled that the approval of the mayors decision to offer Brink a five-year fixed-term employment contract and authorise the mayor or his nominee to negotiate and finalise the “terms of conditions” of the fixed-term employment contract, remuneration, performance contract and security clearance of Brink, was also unconstitutional, unlawful and invalid.

He ordered that the municipality, the council, the office of the city manager and Gwamanda, and speaker, Colleen Makhubele, be liable for the DAs legal costs including the cost of two counsels.

Gwamanda said, though he was still studying the judgment, he disapproves of legal action against the city’s administrators.

“In our attempts to insulate administrative responsibility from political bigotry and in line with our priority of good governance and stabilising the City of Johannesburg, we continue to expect and view these litigious actions with a dim view,” he said.

Gwamanda said he would consult with Makhubele about the judgment.

DA councillor Belinda Kayser-Echeozonjoku said the party had been vindicated by the judgment.

“We welcome the judgment and call on the city to immediately implement the remedies ordered by the court. This follows the DA’s urgent application in May to have the appointment decision reviewed. The DA has always maintained that Brink’s deployment was unlawful.

“The judgment confirms the DA’s contention that the mayor and the speaker of council blatantly flouted processes to ensure Brink’s unlawful appointment. Johannesburg’s rot has now been laid bare, and it is a disgrace that a high court judgment was necessary to force the city to follow due process,” said Kayser-Echozonjoku.

Brinks woes started after the city in December 2021 appointed law-firm ENSafrica to investigate certain transactions and non-compliance with approval processes.

“Brink was potentially implicated in these investigations in his capacity as acting city manager,” read the judgment.

“On 13 January 2022, the council embarked on a recruitment process to appoint a new city manager.”

It resolved to approve the advertisement process of the vacant city manager position and to approve the composition of the interview panel. The city duly advertised the city manager vacancy.

The ENSafrica report released on January 22 last year made various findings of financial misconduct in relation to two transactions.

“Some of these implicated Mr Brink in his capacity as acting city manager. ENSafrica concluded that there ought to be a further investigation in terms of the regulations of financial misconduct procedures.

On 13 March 2022, the office of the executive mayor tabled a report notifying council of the allegations of gross misconduct and negligence against Mr Brink in the ENSafrica report, read the judgment.

The council authorised the mayor to appoint an investigator to investigate allegations against Brink in the ENSafica report.

Mothle Jooma Sabdia (MJS), a law firm was then appointed. 

“MJS submitted its first report on 29 July 2022. In the meantime, it had become clear that the recruitment process for the city manager position had not been successful.”

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On August 5 last year, the mayoral committee was notified that the first ranked candidate had become unavailable and that the second ranked candidate (Bink) had not passed the vetting requirements.

The council noted the outcome of the recruitment and selection process re-advertised the position of the city manager.

The judgment said on November 16 2022, Brink filed a formal complaint with the council arguing that his appointment had been unlawfully obstructed by various role players.

On 22 February 2023, the speaker tabled a report before council. In that report, the speaker advanced the proposition that Mr Brink had been exonerated by the MJS reports from the allegations contained in the ENSafrica report.

“The council [then] resolved to rescind August 2022 resolution to re-advertise the position of city manager; and authorise the executive mayor to apply corrective measures pertaining to Brink as a matter of urgency.

“Second, on the next day ... the council resolved to approve the appointment of Brink as the city manager and to authorise the executive mayor to offer Mr Brink a five-year employment contract,” read the judgment.

The DA, however, argued in court Brinks appointment were procedurally unlawful as the manner in which the speaker tabled the resolutions violated the council’s standing rules and orders and the principle of legality.