Gauteng premier Panyaza Lesufi is being dragged to court by advocate Thulani Makhubela, who wants the decision to recuse him as commissioner of the judicial inquiry into the fire that killed 77 people at the Usindiso Building in Marshalltown to be reviewed and set aside.
Makhubela, who was recused from the commission in December last year, has also asked the Johannesburg High Court to interdict the commission’s chairperson, retired Constitutional Court justice Sisi Khampepe from proceeding with the inquiry.
Lesufi established the commission in September last year to probe the deadly fire that occurred on August 31 last year.
Lesufi appointed Khampepe as the commission’s chairperson, to be assisted by Vuyelwa Mabena and Makhubela. The recusal application against Makhubela was brought by a non-government organisation, the Socio-Economic Rights Institute (Seri), and the Inner City Federation (ICF).
Seri and ICF argued that Makhubela should recuse himself based on his social media posts, which they deemed xenophobic. They argued that Makhubela would not be fair and just in a matter that involves foreign nationals. In her ruling delivered in December, Khampepe ordered that Makhubela be recused as a commissioner because he would not be “impartial” in analysing evidence submitted to the commission.
But in an application submitted in the Joburg High Court in February, Makhubela also wants the court to grant him an order interdicting Lesufi from appointing a replacement commissioner.
Makhubela has also applied for an order to review and set aside the appointment of the commission’s current evidence leader advocate Ishmael Semenya SC, whose appointment he believes was contrary to the terms of reference of the commission.
Speaking to Sunday World this week, Makhubela said the procedure followed for his recusal was legally flawed. “The entire process followed with regard to the recusal procedure is flawed. In law, how this was supposed to be done, I was the one who was supposed to hear the application and make a determination whether I should recuse myself based on the facts put on the table,” he said.
“That is how any recusal application works. This chap Semenya, together with Khampepe, came with their own procedure, which is unheard of in our law,” said Makhubela.
He said the court must say that the recusal process and ruling are irregular and set the decision aside. “Then it means the entire recusal application process must start all over again and follow proper processes. If the premier or the commission says this [starting recusal application afresh] is going to take too long, a compensatory type of settlement should follow,” said Makhubela.
On March 1, the commission’s secretary Thembekile Graham deposed to an affidavit on behalf of Khampepe and the commission, arguing that Makhubela’s application was not urgent. Graham told the court not to entertain Makhubela’s application until Semenya, Seri, and the ICF were cited as respondents in his application.
On March 27, the Joburg High Court held a hearing into whether Seri and ICF should be cited as parties to Makhubela’s application.
Acting judge Alex Pullinger made an order on April 10 that Seri and ICF be joined as the fourth and fifth respondents to Makhubela’s application.
The court has yet to set a date for a hearing on the merits of the case.
Contacted for comment, Graham said the commission would not comment on a pending court matter. Lesufi’s spokesperson, Sizwe Pamla, said “the review application did not negatively affect the efficacy of the commission nor cause a material delay in the first part of the work of the commission”.
This week, Khampepe submitted “part A” of the commissions’ report to Lesufi.
Parts of the report and its findings will be officially released today.
