Court finds Floyd Brink’s appointment as Joburg city manager ‘unconstitutional, unlawful and invalid’
City of Johannesburg municipal manager Floyd Brink’s appointment was controversial from the start and his term has been marked by successive crises. On Tuesday, the Gauteng Division of the High Court in Johannesburg said his appointment was unlawful.
The City of Johannesburg has 10 days to appoint an acting city manager following a Gauteng Division of the High Court in Johannesburg judgment which found the processes leading to the appointment of Floyd Brink as city manager nine months ago were invalid and unconstitutional.
This is a major blow for the ANC-EFF-led multiparty government, which spearheaded the appointment. ANC caucus leader Dada Morero said, “The ANC is still studying the judgment and will comment at a later stage.”
The EFF did not reply to a request for comment.
Brink ascended to the position during a chaotic council meeting in February, despite having been 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.
‘Unlawful and invalid’
In a 23-page ruling on Tuesday morning, acting Judge Steven Budlender ordered that the appointment be reversed.
“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.”
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 businesspeople.
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.
Read more in Daily Maverick: DA, EFF, ActionSA – Joburg council set for showdown over city manager appointment
Brink could not be reached for comment by the time of publishing, but a source close to him said he was due to meet with his legal team in the afternoon to chart a way forward.
With the city likely to appeal against the outcome, the judgment is in abeyance.
City ‘ignored concerns’
The DA, which took the appointment on review, said it had been vindicated by the judgment.
DA caucus leader Belinda Echeozonjoku said, “Our major bone of contention was around due processes being followed. There is a reason why we have a Constitution, we have the Systems Act, Structures Act and also the standing rules and orders of council, which we kept reminding the speaker of at the time. We cautioned them against rushing reports that were incomplete and did not follow due processes.
“They ignored completely that we had raised these concerns inside the council chambers, and it continues to happen, unfortunately.”
Executive Mayor Kabelo Gwamanda noted the judgment and assured Johannesburg’s 6 million residents that the city would act in their best interests.
“We wish to reiterate our commitment to acting in the best interests of the residents of the city and its administration at all times. We shall not be deterred nor distracted, even in this instance.
“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,” Gwamanda said.
ActionSA caucus leader Nobuhle Mthembu said the DA was conflicted in welcoming the judgment as it claimed to have fought tirelessly against the ANC-EFF-led coalition being allowed to govern in the first place.
“On three separate occasions, the DA had opportunities to rid Johannesburg residents of this nefarious ANC-EFF government in the city but failed to do so.
“Beleaguered service delivery will now suffer another setback and it will again be the people of Johannesburg who will shoulder the brunt of this mangled appointment process at the hands of the ANC-EFF coalition of doom, Mthembu said.
City in crisis
Brink has had his hands full 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 five-storey hijacked 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.
Although Judge Budlender ordered that Brink’s appointment be reversed, he said decisions made during his tenure would remain in place.
“Decisions taken and acts performed by Mr Brink in his official capacity will not be invalid,” the judgment noted.
The DA in Gauteng has put the blame for the debacle squarely on Gwamanda and Council Speaker Colleen Makhubele.
“Johannesburg’s rot has now been laid bare, and it is a disgrace that a high court judgment was necessary for the law to be followed,” it said.
Makhubele could not be reached for comment by the time of publishing.
The court has ordered that the city, council, city manager, mayor and speaker pay the DA’s costs jointly and severally, including the costs of two counsel. DM