Marshalltown fire: Judgment on recusal application reserved

Judgment in the recusal application brought against advocate Thulani Makhubela, one of the commissioners of the Marshalltown fire inquiry, has been reserved.

The judicial commission of inquiry into circumstances surrounding the deaths of 77 people at the Usindiso Building in Marshalltown, Johannesburg resumed on Tuesday after it was postponed more than a month ago.

The chairperson of the inquiry, retired Constitutional Court judge Sisi Khampepe, along with Makhubela and Vuyelwa Mathida Mabena, heard arguments from a non-government organisation, Socio-Economic Rights Institute (Seri), and former residents of the Usindiso Building.

Seri is the applicant in the matter and the former residents are the first respondents.

Seri and the former residents want Makhubela to recuse himself based on his social media posts that they deem xenophobic and against foreigners. 

Seri was represented by advocate Jason Brickhill while Suvania Subroyen represented the former residents of the building that was gutted by the fire on August 31.

Support for Operation Dudula

Subroyen said the former residents of the Usindiso Building who were affected by the fire hold an apprehension of bias against Makhubela based on the tweets he posted on his official X account in support of Operation Dudula.

“The presence of commissioner Makhubela undermines the work of the commission,” said Subroyen.

“Through his tweets, Makhubela shows that he is an active supporter of Operation Dudula and the Put South Africans First movements.

“These are anti-foreigner groups and they publicly celebrated the residents who were affected by the fire. Through his posts between 2017 and 2022, he [Makhubela] posted and reposted tweets criticising foreign nationals.

“The commission’s findings and recommendations on what caused the fire might have a negative impact on the foreign nationals and South Africans who were residents of the Usindiso Building.

“If commissioner Makhubela is allowed to continue in this commission, there may be an effect on the residents giving testimony and cripple the testimony’s work. The level of trust of the residents in this commission is central.”

Recusal application uncontested

Advocate Ishmael Semenya SC, the evidence leader of the inquiry, said the commission is not opposing the recusal application.

“The recusal is unopposed, it is uncontested. The relief sought is not ill-founded or unsupportable. There is no controversy in the facts. The allegations are irrefutable,” Semenya said.

“The tweets are his [Makhubela] and there is no ambiguity in the tweets, and it is known clearly what the purpose of Operation Dudula is.” 

Khampepe said the ruling on the recusal application is reserved. The date on when the ruling will be made will be announced in due course.

The inquiry, which was established by Gauteng premier Panyaza Lesufi, seeks to determine the cause of the fire and the prevalence of hijacked buildings in Johannesburg CBD.

It is expected to make a ruling and recommendations on who should shoulder the blame for the deaths, injuries and homelessness of those who survived the fire.

Seventy-seven people including 12 children were killed and 88 other people were injured when the fire engulfed the Usindiso Building on August 31.

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