Advocate Thulani Makhubela has been recused as a commissioner of the judicial commission of inquiry into circumstances surrounding the deaths of 77 people at the Usindiso Building in Marshalltown, Johannesburg.
Judgement delivered
The chairperson of the inquiry, retired Constitutional Court judge Sisi Khampepe, delivered the judgement on Wednesday on the recusal application submitted two weeks ago.
Khampepe delivered the judgement flanked by Vuyelwa Mathida Mabena, who is one of the commissioners assisting her in the commission. judgement was delivered at the Sci-Bono Discovery Centre in Newtown, Johannesburg. Makhubela was not present. Mabena and Makhubela were assisting Khampepe in the commission.
The recusal application was brought by non-government organisation, the 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.
Applicants
Seri and the former residents argued that Makhubela should 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. The former residents of the building consists of South African citizens and foreign nationals. The building was gutted by the fire on August 31
While delivering the judgement, Khampepe said Makhubela will not be “impartial” in analysing evidence submitted to the commission. This was because he is a “supporter” of the Operation Dudula and Put South Africa First movements. Evidence submitted relates to foreign nationals who resided at the building.
Aligned to xenophobic groups
“There is no ambiguity in the language of the tweets and the fact that they are associated with Operation Dudula and its purpose,” said Khampepe.
“I am of the view that commissioner Makhubela will not be able to adjudicate the work of the commission fairly and impartially as he has openly disseminated anti-foreign rhetoric in support of Operation Dudula and Put South Africa First.
“As the residents of the Usindiso Building state, Operation Dudula is a focused niche group of persons sharing sincerely held strong views about the perceived suffering of South Africans at the hands of foreign nationals. The use of social media to rally and garner support is a tool that Operation Dudula is known by.
“Operation Dudula and Put South Africa First have meted out violence on the residents and foreign nationals of the Usindiso Building and have made threats of violence including sexual assault on Seri staff…
“The work of the commission includes collection of evidence from residents of the Usindiso Building, who are both South African citizens and foreign nationals, to determine who caused [the] fire and who must be responsible.
“It is noteworthy that commissioner Makhubela has for the past six years on social media expressed a firm view, conveying enmity and antipathy towards foreign nationals in general, their undesirability in the city [of Joburg] and the country.
“He also evinces Operation Dudula, since the latter espouses xenophobic rhetoric. It is indeed so that commissioner Makhubela holds a firm view that foreign nationals are responsible for social ills besetting the country, including rampant crime and unemployment.
“There is therefore a real apprehension that commissioner Makhubela will be unable to be impartial to issues where they pertain to foreign nationals due to his publicly expressed views about Operation Dudula and its xenophobic cause.
Commission seeks to identify causes and culprits
“On this score, I am satisfied that commissioner Makhubela will not be able to bring an impartial mind to bear on the work of the commission…
“I am satisfied that a case has been made out for the recusal of commissioner Makhubela. In the premises, I rule that commissioner Makhubela is recused as a commissioner of the commission,” said Khampepe.
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 the 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. A total of 88 other people were injured when the fire engulfed the Usindiso Building on August 31.
