Joburg mayor Kabelo Gwamanda wants to petition the second highest court in the land after his application for leave to appeal an earlier judgment against the appointment of municipal manager Floyd Brink was dismissed.
The city had submitted a request for permission to appeal following the Johannesburg high court’s previous ruling that reversed Brink’s appointment.
High court judge Steven Budlender ruled on November 7 that the council of the City of Johannesburg’s February 22 decision to appoint Brink as city manager was unconstitutional, unlawful and invalid.
On Monday Budlender affirmed his original judgment, rejecting city’s leave to appeal.
“Having considered the three grounds of appeal raised during oral argument and the remaining grounds raised in the application for leave to appeal and heads of argument, I am of the view that the proposed appeal bears no prospects of success; and there is no other compelling reason for leave to appeal to be granted.
Supreme Court of Appeal petition
This resulted in Gwamanda announcing in a media statement issued on Monday evening that he was planning to petition the Supreme Court of Appeal.
“The City of Johannesburg has noted without surprise the judgement delivered by acting-judge Budlender in the matter between the Democratic Alliance (DA) and the City of Johannesburg concerning the appointment of the city manager.
“With reservation and established suspicion of bias in the matter, it was the considered view of the City that the independence of the judiciary to act with discernment and fairness must be given due opportunity and respect,” said Gwamanda.
He said the city was, however, now more convinced than before that such optimisim was misplaced given the repeated failure of the High Court to reasonably assess and pronounce on the legal matters before it.
Grave error in judgement
He viewed Bundlender’s ruling as a grave error in judging the legal arguments and facts before the court and inconsistent with the letter and spirit of the legal arguments before court in both the initial matter and subsequently in the application for leave to appeal.
“It remains a strongly held view of the city that a higher court may come to a different and independent conclusion on the said matter and as such the city has decided to consider the judgement and to exercise its legal rights and to petition the Supreme Court of Appeal to directly hear and adjudicate the matter.
“From the onset, it has been a concern that the Acting-Judge enjoys a close relationship with the DA, having acted for the party on numerous occasions including on matters relating to the City of Johannesburg. However, it has also been our duty to test the independence and impartiality of our courts even under such conditions of suspected bias.
“Our resolve is in the interests of defending the stability of the City’s administrative structures and not a defence of any single individual. We are committed to ensuring that the City functions optimally and delivers on its mandate to deliver services to the 6 million residents of Johannesburg” said Gwamanda.
