Joburg city manager Floyd Brink's appointment unlawful, says high court

07 November 2023 - 14:38
By Sisanda Mbolekwa
Johannesburg city manager Floyd Brink.
Image: Freddy Mavunda Johannesburg city manager Floyd Brink.

Johannesburg city manager Floyd Brink's appointment has been declared unlawful by the Gauteng High Court.

Brink's appointment was contested by the DA earlier this year and the party filed an urgent application to have the decision reviewed.

The opposition party said it felt vindicated by the court's decision to declare his appointment unconstitutional and invalid and called on the city to immediately implement the remedies ordered by the court.

Caucus leader Belinda Echeozonjoku said the judgment confirmed the DA's long-standing view that the mayor and speaker of council flouted processes to ensure Brink's hiring.

Five months ago, TimesLIVE reported the DA had been up in arms over speaker Colleen Makhubele’s decision to table a report that allowed the reversal of the mayoral committee’s decision to advertise for a city manager in August 2022 and the subsequent recruitment process that followed.

The matter was heard in court in June.

At the time Echeozonjoku said she appreciated the opportunity to present their argument on the irregularities surrounding the tabling of the report which ultimately paved the way for Brink’s reinstatement.

The row involves an investigation into noncompliance after Brink allegedly approved two transactions of more than R300m and R20m respectively to buy CCTV equipment and hand-held devices.

Brink was later cleared by a forensic report.

The uproar and subsequent court action follow Makhubele’s tabled recommendations regarding how Brink was booted out of the job and put on special leave.

The DA previously alleged the council's decision to appoint Brink, the second preferred candidate, instead of Johan Mettler, the first preferred candidate, was “done to placate the EFF, who played a key role in the ANC staying in power in Joburg”.

Mettler later recused himself from the race. The DA insisted it then recommended Bryne Maduka for the post.

In the heads of argument, the party cited it did not recommend Brink because he did not meet the minimum requirements and qualifications for the post of city manager and did not pass the city’s group forensic investigation services (GFIS) screening check.

Critically, the DA said the speaker’s report failed to disclose to council that the selection panel had recommended Maduka for the post and falsely said an investigation, conducted by Mothle Jooma Sabdia Attorneys, had exonerated Brink from ENS Africa’s findings. The argument added Makhubele falsely said the selection panel had recommended Brink.

The DA, as applicants, contended that the decisions 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.

Second, the applicant contended the decisions are substantively unlawful in that Brink did not meet the statutorily prescribed mandatory requirements for the position of city manager. Thirdly, the applicant contended the decisions were substantively unlawful in that Brink had been implicated in serious and potentially criminal conduct.

Echeozonjoku said this judgment was a victory for her party, exposing “the rot” in the municipality.

“Johannesburg’s rot has been laid bare, and it is a disgrace that a high court judgment was necessary to force the city to follow due process.

“The DA upholds the rule of law in all circumstances. The city manager position is often coveted by the corrupt because of its central role in decision-making.

“Our victory safeguards the residents of Johannesburg against further decay and blatant disregard for the rule of law by the ANC/EFF doomsday coalition that continues to flout processes to purge hard-working officials to make way for cadres aligned to them.”

However, despite the appointment being declared unlawful, the judge denied the relief sought to include that every decision made by Brink be declared null, citing “it should not follow that every decision he made is likewise invalid, also having the potential to affect countless members of the public or companies who have relied on or been affected by the decisions concerned”.

The judge also did not consider that an order for personal or punitive costs should be made.