Usindiso fire inquiry marred by allegations of xenophobia

The inquiry into the Usindiso building fire where 77 people died in October in Marshalltown has heard how lawyers representing the Socio-Economic Rights Institution of SA (Seri) and The Inner City Federation met privately with chair of the inquiry, retired Justice Sisi Khampepe, to discuss possible bias against one of the lawyers appointed to the probe.

This was after lawyers representing Seri discovered that advocate Thulani Makhubela, one of the commissioners of the inquiry, had a long-standing view on illegal immigrants through a series of tweets dating back six years. Makhubela appeared to have supported Operation Dudula and #PutSouthAfricansFirst.

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He was alleged to have tweeted South Africans were unemployed because of illegal foreigners. In some tweets, he allegedly either liked or retweeted that crime in the country was because of foreign nationals and that the government was not doing anything to deport all of them.

Operation Dudula members was also, after the fire, seen dancing and celebrating the death of the foreign nationals. Advocate Jason Brickhill, representing Seri and The Inner City Federation, argued Makhubela’s views of the rampant crime in the country was because of foreign nationals.

“The second view is that there should be no state housing provision for foreign nationals. The third view is that there is support for Operation Dudula and the loose grouping of #PutSouth= AfricansFirst.

“Yet another view is that he is critical of human rights lawyers who represent inner city residents and foreign nationals,” he said.

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It was the responsibility of Makhubela to recuse himself and, if he failed to do so, it was for Khampepe to decide to recuse Makhubela, Brickhill said.

He said the reason to meet Khampepe was because they had noted statements by Makhubela on social media’s X, which concerned them. In the meeting with Khampepe, he said there was nothing to impugn the facts of what took place in the discussion.

“In law, it is not about how you and I might feel. The approach is very clear that there is a strong presumption of impartiality in respect of judicial officers,” Brickhill said.

Makhubela said his problem was the lawyers met with Khampepe and there was a request that she must come alone. He also had a problem with the fact the NGOs were requesting Khampepe be the one to decide his recusal alone.

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“The problem that I have is that, apart from the parties that were part of that meeting, nobody knows what else was discussed,” Makhubela said.

“There is [an] apprehension on my part that the discussion could have gone anywhere and unfortunately that is the position that I have.

“You first had a meeting alone, and then you say she might decide this alone.” Evidence leader of the commission Advocate Ishmael Semenya said Makhubela’s utterances could make survivors of the fire feel uncomfortable around him.

“Among the deaths were 21 Malawians. Operations Dudula and #PutSouthAfricansFirst talk about 53 Tanzanian and one Zimbabwean.

Painfully for all of those were 23 children of foreign nationals that Operation Dudula does like,” Semenya said.

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“Then you tell them that this issue is going to be decided by Makhubela whose xenophobia is as pronounced and unrefuted.

I would submit that by any logic, the conclusion is clear: they cannot harbour sufficient comfort that commissioner Makhubela will bring his unbiased mind to the subject.

“To re-read what the victims of the fire were saying about it – that Operation Dudula was dancing and somebody sympathetic to their cause publicly expresses himself about joining the cause with their purpose – surely must trigger a reasonable fear and bias towards how the matter will be approached.”

Semenya said there was no basis that the conduct of the commission would go unhampered with the participation of somebody who held such violent views about foreign nationals. Khampepe reserved judgment for the recusal application to a later date that has yet to be announced.