The Commission of Inquiry into the Marshalltown fire resumed this week amid an application for the recusal of one of the Commissioners, Advocate Thulani Makhubela.
Former residents of the Usindiso Building have accused Makhubela of supporting anti-migrant organisations and called for his recusal.
The former residents also said that Makhubela’s social media posts were xenophobic and against foreigners. Judgment on the matter was reserved.
The Commission was established by Gauteng Premier Panyaza Lesufi to look into the fire that killed 77 people and injured 88 others in August.
However, it was halted in October because the Parktown venue was too small and unsafe to accommodate everyone.
The residents’ legal representative, Candice Pillay, head of social impact law and director at Norton Rose Fulbright, said Makhubela should not hear any evidence until his recusal application was decided on.
“In normal recusal applications, the recusal is heard first and then decided upon before the hearing commences. If Commissioner Makhubela is recused, then the chairperson will decide if she is to replace him or continue without him.
“However, the principle in law is that he cannot hear any evidence led in the Commission until his recusal is decided upon first,” she said.
Attempts to get comment from Makhubela and the Commission secretariat, Thembekile Graham, were unsuccessful.
The chairperson of the inquiry, retired Constitutional Court judge Sisi Khampepe, along with Makhubela and Vuyelwa Mathida Mabena, heard arguments from the former residents and non-governmental organisation Socio-Economic Rights Institute (Seri), the first applicants in the matter.
Other organisations, such as Kopanang Africa Against Xenophobia, The Inner City Federation, Keep Left, Inner City Resource Centre and the General Industries Workers Union of South Africa (GIWUSA) picketed outside the Sci-Bono Discovery Centre where the Commission resumed its sitting on Tuesday, demanding justice for the fire survivors.
Seri argued that the presence of Makhubela may undermine the credibility of the Commission’s work, its findings and recommendations.
The organisation said this was because Makhubela is associated with, and an active supporter of anti-migrant groups such as Operation Dudula and Put South Africans First.
“These are anti-foreign groups. They publicly celebrated the fact that foreign nationals, who are residents, had been afflicted by the fire. His role as Commissioner, if allowed to continue, may also affect the much-needed cooperation of some residents, thereby crippling the Commission’s ability to get to the bottom of the issues,” read the papers.
In his supporting affidavit, Hassan Ramadan, who arrived in South Africa in 2015 from Kenya, said he believed Makhubela’s continuation as a Commissioner would not help him as a victim of the fire that broke at Usindiso Building.
“I believe that should he remain as a Commissioner, the findings of the Commission of Inquiry will not be to my benefit, nor will the process be fair and impartial, because Advocate Makhubela has expressed his hatred for foreigners.”
“I have first hand accounts of experiences I have had with Operation Dudula where they have expressed their hatred towards foreigners, and I believe that Advocate Makhubela should be recused as a Commissioner because he shares the same sentiments as Operation Dudula,” he said.
This was supported by Thembinkosi Sithole, a South African citizen who said Makhubela’s support for Operation Dudula as an entity was xenophobic.
“I believe that should Advocate Makhubela remain on the Commission, that the process of the Commission of Inquiry into Usindiso Building, would be compromised in that the process will no longer be fair and impartial.”
Another former resident, Tanzanian Ayubu Miuza, said: “It is my understanding that Commissioner Makhubela wants to assist victims of the fire who are South African citizens only. I do not understand why he would want to help South African citizens only when the residents of Usindiso were all victims of the fire.”
“I believe that Commissioner Makhubela will not be a fit Commissioner for this inquiry because he has a xenophobic mindset. Due to this, my family and many other foreign nationals will not get help following the inquiry.”
Pillay said for the reasons highlighted above, the application brought by the applicants for the recusal of Makhubela needed to be granted.