Marshalltown fire inquiry bogged down by setbacks including recusal hearing

Screenshots of Thulani Makubela's X, formely Twitter.

By Michelle Banda

29 Nov 2023

It’s been a month since the start of the Commission of Inquiry into the tragic events at the Usindiso building in Marshalltown, Johannesburg. However, delays and challenges persist. The upcoming recusal hearing for Advocate Thulani Makhubela — one of the presiding commissioners accused of xenophobic rhetoric on his X profile — set for 5 December, holds implications for the inquiry’s resumption.

The inquiry, initiated almost three months after the devastating fire that claimed 77 lives on 31 August 2023 has been confronted with setbacks, including non-compliance with fire services bylaws and the recusal application for one of the presiding commissioners, Advocate Thulani Makhubela.

Thembekile Graham, the secretariat of the Commission of Inquiry, confirmed to Daily Maverick the receipt of the recusal application, emphasising that its hearing precedes the resumption of normal commission activities.

Socio-Economic Rights Institute (Seri) officially requested Makhubela’s recusal, alleging anti-foreigner views on his X profile (formerly Twitter).

While Seri has refrained from commenting on the application, screenshots of Makhubela’s X profile engagements are attached for reference.

Thulani Makubela X account Screenshots of Thulani Makubela's X (formely Twitter) account.

The inquiry’s indefinite postponement on 30 October, following non-compliance notices to fire services bylaws, complicates an already complex situation.

Read more in Daily Maverick: Tragedy and miracles unfold: Remembering the many Albert Street fire victims

Survivors of the August 80 Albert Street fire face additional hardships, such as eviction from the Hofland Park Recreational Centre and relocation to the Lindela Repatriation Centre and being branded as undocumented migrants. Other survivors have been placed in the Denver temporary relocation area — one-roomed tin shacks with no bathrooms to bathe, no kitchens to cook, no personal security and little or no shelter from the weather.

Read more in Daily Maverick: Albert Street fire survivors evicted from shelter and taken to deportation centre

Last Friday, the Johannesburg high court ruled that the City of Johannesburg must enhance the living conditions of the Marshalltown fire victims within three months. Key improvements required include replacing four taps, installing prepaid electricity, finalising additional ablution facilities (including 20 sanitation units serviced weekly), and appointing a security company to prevent land invasions.

High court Judge J Dosio said improving the conditions of the victims recently relocated to temporary shelters in Denver will require collaboration between activists, lawyers, and the City.

Community activist Nigel Branken, who is closely involved with affected families, describes the recent evictions as ‘horrible.’

“Despite a court order preventing deportations until the Khampepe inquiry concludes, individuals have allegedly been released and deported,” Branken stressed.

Candice Pillay, Head of Social Impact Law at Norton Rose Fulbright South Africa Inc, and a legal representative of the fire victims, said of the bid to recuse Makhubela: “The recusal was brought by Seri and supported by the Johannesburg Fire Victims Support Group. During the course of the statement taken for the commission of enquiry, a number of individuals named Operation Dudula as being significant in their harassment at the Usindiso Building. They recounted stories of assault and harassment. When the application for recusal was launched, we provided the commission with signed affidavits from these residents on their personal experiences. The residents themselves did not feel that the commission would be allowed to objectively review evidence before it as Commissioner Makhubela was himself deliberating the issues, while at the same time supporting Operation Dudula. Legally speaking, the residents have a reasonable apprehension of bias in these deliberations.”

Pillay noted that the commission sat for only two days before the indefinite postponement, with evidence presented related to the acting director of the EMS and other city officials and their response to the fire itself having only been heard so far.

Pillay continued, “The commission has not yet had the opportunity to review the statements that we took, all 340 of them, as the commission was postponed and gave us, the lawyers, the much-needed time to get the statements we needed. Just when we were at the point of analysing, reviewing and providing the commission with possible witnesses, the actions of the City of Johannesburg and Department of Home Affairs interrupted that process and we have been kept busy with urgent matters at this stage. There is still a lot of evidence that needs to be heard regarding the cause of the fire and the condition of the building.”

These developments emphasise the need for swift resolution, combining legal, logistical, and humanitarian efforts to bring clarity, justice, and support to those affected. DM

Daily Maverick reached out to Advocate Makhubele for comment but he had not responded at the time of publication.

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