“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 SouthAfricansFirst groups…In the premises, I rule that Commissioner Makhubela is recused as  the commissioner of the commission of Inquiry into the matter relating to Usindiso building.”

This was the ruling by Justice Sisi Khampepe, leading the inquiry into the Johannesburg Usindiso building inner-city blaze on 31 August that claimed 77 lives, on the recusal application of advocate Thulani Makhubela, a commissioner in the Usindiso inquiry accused of xenophobic rhetorics in his X profile (formerly Twitter).

Read more in Daily Maverick: ‘Xenophobic’ commissioner at Joburg fire inquiry must be recused, say applicants

The unchallenged application for recusal was brought by the Socio-Economic Rights Institute (Seri) and endorsed by parties at the inquiry including, survivors of the fire and the Inner City Federation (ICF).

According to Khampepe, the judgment highlights the fact that motives for bringing a recusal application are not to be taken lightly, while the presiding officer to whom it is brought should not consider it as a personal affront. Impartiality is the cornerstone of fair and just proceedings both judicial and administrative, she said. 

“An appearance of bias impairs confidence in unfair and just administrative proceedings. It is important to note that the facts relied upon in this application are undisputed and therefore accepted as correct. Commissioner Makhubela’s support for and association with Dudula creates a reasonable apprehension that he might be biased,” Khampepe said.

Notably, Makhubela was not in attendance when the ruling of the recusal was handed down on Wednesday 20 December, 2023.

However, Makhubela, who attended the hearing held on 5 December 2023, didn’t previously counter the recusal arguments. Instead, he questioned the irregularity of informing the chairperson privately.   

In response to the allegation of the application being brought irregularly, Justice Khampepe said nothing was irregular about the application nor the lawyers telling her about their intent to file such an application as a courtesy.

“Nothing was irregular about the application; it was properly issued,” she said. 

Seri executive director Nomzamo Zondo said: “We welcome the ruling of the commission as we believe commissioner Makhubela’s recusal will ensure the commission operates fairly, impartially, and in accordance with its terms of reference and the rule of law.”

Commenting on the recusal, activist Andrew ‘Andy’ Chinnah who has closely been working with the victims  of the fire in the Usindiso building, told Daily Maverick:

“Today’s ruling reaffirms that there is justice as long as we fight for it. It is very heartwarming and makes me feel very positive about the process now. When the commission started the venue could only accommodate about 25 people including the press and the legal team. When there were over 500 people affected at that stage we were like is this a commission of inquiry or a tick box exercise? The general feeling now for the victims of the fire is that there seems to be some form of justice playing out. The fact that those 32 people at Lindela weren’t deported and the court said they must remain until the end of the inquiry  proves that there is justice in South Africa.”

Chinnah added, “We are waiting now to see how much more delay it’s going to be to appoint a new commissioner. Right now we are dealing with 42 people who are still lying in the morgue to be buried due to many factors including backlog in getting DNA samples for those who have been identified, bodies that have not been released and other remains that have not been claimed. We would like the commission to start moving.”

The inquiry, initiated almost three months after the devastating fire that claimed 77 lives on 31 August 2023 has been confronted with setbacks, including non-compliance with fire services bylaws and the recusal application for presiding commissioner, Advocate Thulani Makhubela.

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Now that all the matters have been dealt the commission hopes it can resume its duties. DM