Johannesburg city manager Floyd Brink has lodged an urgent court bid to stay a pending warrant of arrest against him which was not successfully executed last week.     

In court papers, Brink argues that his arrest would not be in the interest of justice and that the matter must be heard urgently to avoid the likelihood of an unlawful arrest based on an “impugned” order which he intends to challenge.

The order must be stayed not only because it is in the interest of justice, but to vindicate the rule of law, he argues.

Brink further says the warrant undermines a previous order by Judge Leonard Thwala on the matter, part of which ordered that he was not to be imprisoned, “instead, the sentence imposed therein is suspended and not operational”.

The matter is expected to be heard in the Gauteng Division of the High Court in Johannesburg on Tuesday, 30 April 2024.

Read more in Daily Maverick: Joburg city manager Floyd Brink dodges arrest warrant

The matter dates to August 2023 and pertains to a billing issue raised by a business known as MCE Electrical, which had taken the city to court after an “unwarranted” water supply disconnection, which posed immediate operational challenges as well as concerns about the health and safety standards for its workforce and clientele.

Subsequently, the high court ordered the city not to disconnect the water supply to the applicant’s property pending the outcome of the application.

MCE’s attorney, Stefan Erasmus of Gittins Attorneys, said the city, however, did not abide by the order as it forged ahead with the disconnection on two occasions. The city was served with papers after a disconnection in January 2024, but did not show up at court and as such was in contempt of court, according to Erasmus.  

Brink disputes this in the papers and argues he was never served.

“I submit that if the application was served on me personally, I would have placed a version before court. This failure to me violated my right to be heard.

“I reserve the right to supplement the founding affidavit for hearing of the application for a rescission of the order by [Judge] Thwala and the warrant of committal.” 

‘Blink’

On Wednesday, 24 April, the Sheriff of the Johannesburg High Court descended on Brink’s home in Roodepoort to effect a warrant of arrest, but it could not be effected because it contained defects, including misspelling his name as “Blink”.

Mayoral spokesperson Mlimandlela Ndamase lamented that the warrant was executed on Brink’s private home instead of the city’s address at which Brink is employed. He described this as part of ongoing attacks against Brink.

“The intention was never to effect an arrest,” Ndamase said.

He disputed some claims made by Erasmus, adding that when there was a disconnection drive, there was a schedule or a list of clients who would or had been disconnected.    

“This particular client was not on the schedule for disconnection… From our side, we have no record of that disconnection, no one from the city has been authorised to do that.”  

A team had been sent to check if the client had indeed been disconnected and if so, an investigation would be carried out. Asked what could have gone wrong and if the city suspected foul play, Ndamase said: “It is definitely foul play.”

City’s ‘malpractice’

Erasmus said they would oppose the bid to stay the warrant, to prevent the continued suffering of not only his client, but dozens of other residents. 

“Part of the reason is that there are various parties, attorneys and civilians in Johannesburg that are suffering under the malpractice of the city, and  nobody’s taking accountability. They are doing as they please.” 

Erasmus was clear that they were not willing to settle out of court as their client had suffered irreconcilable damage since buying the property in 2019.

“While one could contend that legal redress, if secured at a later stage, might compensate for losses, it’s crucial to discern that certain damages, particularly those linked to brand reputation, customer trust and employee morale, are intangible and can’t be simply equated in pecuniary terms. Further, this does not account for the possible safety hazards which are now prominent in the applicant’s business,” read the court papers.

MCE Electrical, located in Stafford and a subsidiary of Pibir Investments, employs a staff of 107; it was forced to outsource the services of professionals in a bid to restore water.  

“It is paramount to underscore that the disruption brought about by the respondent [City of Johannesburg] is not merely a transient issue that can be temporarily sidestepped or easily rectified in the aftermath… Each day of non-resolution amplifies the complications faced by MCE Electrical, making it increasingly difficult to revert to a pre-disruption status quo…” read the papers.

It is not the first time the city has found itself in this position. Last week, News24 reported that the city had been interdicted from disconnecting a resident’s water and electricity after the resident had been trying for eight years to resolve her unreasonably high utility bills.

The woman reportedly paid R844,717.52 for utilities between January 2019 and August 2022.

Mayor Kabelo Gwamanda said the city would endeavour to resolve any rates and utility account disputes in an amicable, transparent and cooperative manner with the affected clients to avoid protracted litigation.

“In this regard, we urge residents to always utilise the available dispute resolution mechanisms.” DM