‘You support Operation Dudula, you can’t sit on this inquiry’: recusal argued in Usindiso commission

An inference has been drawn between a commissioner’s support for the dissemination of anti-foreigner rhetoric by the movement, Operation Dudula, and his perceived inability to objectively discern matters involving foreign nationals.

The commission of inquiry into the Usindiso building fire, chaired by former justice Sisi Khampepe, heard on Tuesday that commissioner, advocate Thulani Makhubela, has over the past six years voiced on social media his discomfort with foreign nationals.

Suvania Subroyen, representing the fire victims, argued that a commissioner who holds aggressive views against foreign nationals cannot be trusted to be fair in a matter that involves that group, and called for his recusal.

“It is critical that this commission is cleared of any anti-foreign elements, particularly as its findings might impact foreign nationals or some South Africans in wrongdoing. The presence of Makhubela may undermine the credibility of this commission’s work which is owed to a reasonable apprehension of bias against him.

“Makhubela, for a significant period, was a supporter of the anti-foreign group,” said Subroyen.

On August 31 almost 80 people died when the hijacked Usindiso shelter for women and children building caught fire in the early hours. On that fateful day, members of Operation Dudula gathered outside the scene and expressed satisfaction at the ordeal.

“Members of Operation Dudula transported themselves to taunt and celebrate the tragedy.

“If this application is unsuccessful, the neutrality and impartiality of this commission might be questioned. Xenophobic and anti-immigrant sentiment that foreign nationals within a country, especially from developing countries or asylum seekers, are responsible for a variety of social ills are often used to radicalise individuals. They prey on anxiety experienced by the people of that country and relates to crime, unemployment, financial insecurities,” she said.

Subroyen further argued that it was not far-fetched that Makhubela affiliated with the group as it mainly uses social media to mobilise individuals, a platform he uses to express his apprehension of foreign nationals by tagging them on posts.

She submitted that in their preparation for the inquiry, they interviewed 340 people affected by the fire, 153 of whom were South Africans and 187 foreign nationals.

In one of the affidavits a victim recalled that after the fire had been extinguished members of Dudula arrived at Usindiso singing, “You kill our people, you hijack our buildings ... You foreigners go back to your country.” 

Furthering the allegations against Dudula, it was noted that some of the affidavits alluded to an allegation that people affiliated to them had started the fire.

Evidence leader, advocate Ishmael Semenya, made a stern statement that the call for the recusal is uncontested, unopposed.

“There is nobody who is advancing an argument or a contention that suggests a relief sought in the application is ill-founded, unsupportable. This application provokes no legal controversy. There is a legal precedence on how to deal with a recusal matter. The confluence of purpose is the same as that of commissioner Makhubela.

“The allegations are irrefutable. The tweets are his. There is no ambiguity in the language, and they are associated with Operation Dudula. It’s clear, if we accept the facts as we must, and accept the law, that commissioner Makhubela must be recused,” said Semenya.

Among those who died in the fire were 21 Malawians, 53 Tanzanians and one Zimbabwean. Based on this, Semenya said: “Then you tell their family that this issue is going to be decided by commissioner Makhubela, whose xenophobia is as pronounced and unrefuted.”

“Someone who supports the organisation should not be on the commission,” Semenya added.

Makhubela and Semenya had engaged in a spat over who must ultimately determine his recusal.

The drawn-out legal brawl sought to also clarify if the chairperson of the commission must be the main person to make the decision, and whether by taking his stance, Semenya was still operating within the ambit of his role in the commission.

Earlier, legal representative for SERI advocate Jason Brickhill argued that Makhubela’s sentiments on social media might affect the commission’s ability to reach an unbiased conclusion in the inquiry.

“In the first instance, it is the responsibility of the individual member to recuse himself. This relates to the statement on X/Twitter that caused discomfort on bias. The facts have been placed on record, there is nothing to impugn what took place. It’s not a matter of how you and I might feel but a matter of impartiality in the judiciary,” said Brickhill.

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