Inquiry: Chair recuses Makhubela as commissioner for ‘bias toward foreigners’

Retired Justice Sisi Khampepe has removed advocate Thulani Makhubela from the Usindiso building fire commission of inquiry proceedings for his “bias towards foreign nationals”.

The Marshalltown fire claimed 77 lives on 31 August. Khampepe, chair of the commission of inquiry into the blaze, recused Makhubela as one of the commissioners tasked with probing the circumstances that led to the fire, citing “overwhelming evidence of bias, which he deemed unnecessary to rebut”.

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Earlier this month, lawyers representing the Socio-Economic Rights Institution and The Inner City Federation claimed Makhubela had a long-standing view on illegal immigrants through a series of tweets and his public support for Operation Dudula and #PutSouthAfricansFirst – groups known to be against foreign nationals.

He also allegedly either liked or retweeted that crime in the country was because of foreigners and that the government was not doing anything to deport illegal foreigners.

Khampepe said the fact that Operation Dudula has been accused of starting the fire, meant that Makhubela would be “unable to be impartial on issues when they pertain to foreign nationals” and the anti-immigrant group.

A social worker working with the fire victims, Nigel Branken, said it was concerning that premier Panyaza Lesufi appointed Makhubela, as he allegedly supported Operation Dudula.

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“If we want to get to the bottom of what happened in the fire and we need to get to the bottom of it, we need a partial commission of inquiry,” Bracken said.

Branken said he was still concerned about the ongoing rhetoric around foreign nationals in the country. “We have created this crisis ourselves and home affairs has not done its job. We see that with the high court finding against the City of Joburg,” he said.

“The city, the provincial government and the government are advancing a narrative that foreign nationals are to blame, instead of taking responsibility.

“We still have 42 bodies in the Diepkloof mortuary of the 77 people who were killed. How can we nearly five months on still have unidentified bodies? “The state has prevented people and siblings from giving their DNA, insisting mothers must give DNA.

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“The mothers are in foreign countries or in other provinces. As a result, we have a crisis where people aren’t able to help their loved ones,” Branken said.

Candice Pillay, a lawyer whose law firm assisted the Johannesburg Fire Victims Support group on pro bono basis, said they welcome Khampepe’s ruling as the application brought by the Socio-Economic Rights Institute of South Africa (Seri) raised very important issues as it related to the commission being objective and impartial.

Pillay said a number of the victims were foreign nationals. The recommendations the commission was likely to make were going to affect the foreigners on who caused the fire and compensation for what they have lost.

“They have an interest in getting a fair hearing.

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“In our law, justice must seen to be done, we represent the residents and they didn’t believe they were going to get a fair hearing as long as Makhubela sat on the commission,” Pillay said.

She said looking at the tweets by Operation Dudula and #PutSouthAfricansFirst, they were more a call to action, rather than expressing an opinion.

“It says we must get rid of foreign nationals; foreign nationals are causing harm and at the end of the day if you had that belief, how can you make a fair decision when aforeign national is pleading for justice because you are already against them,” Pillay said.

“This was the narrative that the judge was alluding to: if your mindset has already been settled that you are against foreign nationals, how can you distance yourself from that very firm belief and allow yourself to be persuaded to have empathy, compassion or to be fair and compatible when deciding issues relating to foreign nationals?”