‘Xenophobic’ commissioner at Joburg fire inquiry must be recused, say applicants

Residents of the Usindiso building attend the commission of inquiry on 5 December 2023. (Photo: Felix Dlangamandla)

By Michelle Banda

5 Dec 2023

A commissioner appointed to assist Justice Sisi Khampepe’s inquiry into the Johannesburg blaze that killed 77 people has been accused of supporting the xenophobic organisation Operation Dudula.

Justice Sisi Khampepe, leading the inquiry into the Johannesburg inner-city blaze on 31 August that claimed 77 lives, has deferred judgment on an application seeking the recusal of advocate Thulani Makhubela, a commissioner in the Usindiso inquiry that is investigating the cause of the fire.

joburg fire inquiry khampepe commissioner Retired Justice Sisi Khampepe presides over the Usindiso inquiry that is investigating the cause of the Marshalltown, Johannesburg fire that claimed 77 lives. (Photo: Felix Dlangamandla)

Makhubela was accused of making xenophobic remarks on his X (formerly Twitter) profile and the recusal application was endorsed by parties at the inquiry including the Socio-Economic Rights Institute (Seri), survivors of the fire and the Inner City Federation (ICF).

Read more in Daily Maverick: Marshalltown fire inquiry bogged down by setbacks including recusal hearing

Presenting the heads of argument before the commission on Tuesday, Jason Brickhill, the director of litigation at Seri and the legal representative of Seri and the ICF, said Makhubela should be recused due to an apprehension of bias.

Brickhill said the apprehension was based on the evidence presented by Seri, the ICF and former residents of the building.

“To the effect that as appears from Commissioner Makhubela’s public statements on social media for over five years, he is closely associated with, and an active supporter of, the Operation Dudula and the Put South Africans First groups. In this regard, Commissioner Makhubela has repeatedly and frequently tweeted messages in support of Operation Dudula and Put South Africans First and almost all his tweets relate to foreign nationals.

“Commissioner Makhubela has, on his social media account, ‘liked’ tweets by other accounts, thereby showing his approval of the statements made by those ‘liked’ tweets. The tweets in question concern foreign nationals and are intertwined with the issues to be considered by the commission.

joburg fire inquiry People picket outside the commission of inquiry in Johannesburg on 5 December 2023. (Photo: Felix Dlangamandla)

“Operation Dudula and Put South Africans First have made threats of violence, including sexual assault and violence, towards Seri’s staff and meted out violence on Seri’s clients (who include informal traders living in the Johannesburg inner-city and beyond); and have meted out violence on the residents. The commission’s mandate relates to the rights of the residents of the Johannesburg inner-city (which includes foreign nationals).”

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

In support of Brickhill’s argument, Suvania Subroyen, the legal representative of the fire survivors in the matter, told the commission that residents of the Usindiso building had been on the receiving end of ill-treatment from Operation Dudula and Put South Africans First.

“The basis for the support for the application recusal of Commissioner Makhubela by residents and victims of the fire arises out of genuine concern and reasonable apprehension of bias by Commissioner Makhubela on the grounds of his tweets and statements relating to Operation Dudula and #Put South Africans first.

“The fire victims also feel Makhubela might be a member of Operation Dudula, with a suspicion that they might have even started the fire that gutted the Usindiso building, as the members were present post the fire on the scene chanting in excitement and also present at Hofland Shelter when the eviction of the victims happened about two weeks ago.

“If the recusal of Commissioner Makhubela is unsuccessful, there is a reasonable perception that may arise as to the neutrality, impartiality and integrity of the commission itself,” said Subroyen.

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

Makhubela, attending the hearing, didn’t counter the recusal arguments. Instead, he questioned the irregularity of informing the chairperson privately.

joburg fire inquiry Residents of the Usindiso building attend the commission of inquiry on 5 December 2023. (Photo: Felix Dlangamandla)

“If you were an applicant and you go to the judge and sit with her to the exclusion of everyone else, it’s gross irregularity,” Makhubela said.

Makhubela was appointed to assist Justice Khampepe and is part of the three-member legal team investigating the fire’s causes.

Read more in Daily Maverick: City of Johannesburg points finger at NGOs and foreign nationals after deadly fire

Commenting on the unopposed recusal, the evidence leader, advocate Ishmael Semenya, said, “This application provoked no legal controversy as it is unopposed. There is no suggestion by anybody that they are mistaken… The application is also predicated on a certain set of facts which have been deposed to under oath by various individuals.

“As per the papers before the commission, there is no controversy on the facts. On what basis in law can the relief that is called for be resisted, because Commissioner Makhubela has been alive to this application? He too has been alive to the facts underpinning the relief that is being sought but elected not to contest the correctness of that.

“In fact, in certain instances, you may advance the argument that the allegations are irrefutable. The tweets are his… There is no ambiguity in the association with Operation Dudula, whose views are clear.

“It is clear if we accept the facts, as we must, and accept the law as by the highest court of the land, the conclusion is that Makhubela must be recused.” DM

Categories:

Tags:

DM is much better if you are signed in...

South Africa