Controversy surrounding the Khampepe Inquiry deepened after the Socio-Economic Rights Institute (SERI) asked for its commissioner, advocate Thulani Makhubela, to be recused because of his purported anti-foreigner views.

The inquest into the fire at 80 Albert Street in Marshalltown, Johannesburg, on 31 August that left 77 people dead was paused - and it was already three weeks late - because the building hosting the commission is non-compliant regarding fire safety standards.

Last week, SERI wrote to the commission after it saw a series of tweets on social media platform X, formerly Twitter.

The organisation is participating in the commission and will submit information on what it calls a "housing crisis" on behalf of residents of the inner city.

Makhubela’s X timeline has been peppered throughout the years with comments about illegal foreigners, but the tweet pinned to the top of his timeline speaks about all foreigners, not just illegal foreigners.

"Attacks on illegal foreigners won't stop until gvt stops the take over of towns & townships by foreigners! Gvt keeps wishing the prblem away," (sic) he wrote on 21 February 2017.

A more recent tweet, from 24 March, responds to African National Congress secretary-general Fikile Mbalula’s tweet, which shows a Zimbabwean man telling the president to leave office.

To this, Makhubela wrote: "Secretary general, it is your party that has allowed these foreigners to run amok in this country! Please be decisive on foreigners, especially illegal ones."

Makhubela, who is also the spokesperson for the inquiry, said he could not comment on the request by SERI because it was undergoing a legal process, and he would wait for the outcome to be concluded.

However, he confirmed that an application had been made for his recusal.

Meanwhile, the inquest has been placed on hold because, ironically, the building it was sitting in posed a fire risk.

It had only been running for three days.

Makhubla said the commission had been looking for a new venue, one of them being the Sci-Bono Discovery Centre in Newtown. 

He said the commission would need to "satisfy all the compliance issues. We don’t want to find ourselves in that position ever [again]".

Last week, Johannesburg MMC for Public Safety, Dr Mgcini Tshwaku, said the building had already been flagged as non-compliant regarding fire safety standards when it was intended for the Commission of Inquiry on Taxi Violence in 2019.

"Despite clear concerns voiced by the Emergency Medical Services during planning meetings, the provincial government, as hosts of the .... commission, did not adequately consult with the City of Johannesburg.

"Further to that, they also did not conduct mandatory planned meetings as stipulated by law before taking the decision to use the building for the commission.”

Tshwaku advised the provincial government, which established the commission, that when it finds an alternative building, it meets with the relevant teams to ensure the facility is up to code.

Responding to the statement, the Office of the Premier, Panyaza Lesufi, said the Sunnyside Office Park, where the commission is based in Parktown, was picked "explicitly because the owners had assured us that it complied with all health and safety regulations, and the municipality had never raised any concerns". 

It said the problem was restricting the number of people who could enter the venue because of its size.

"While the commission got under way, we noted a rising public and media interest, which made the acquired space inadequate for hosting the inquiry.

"The province made all submissions to the relevant Joint Operations Committee, which supported the work of the commission."

The Office of the Premier is looking for a bigger space.

Paul Kollenberg, head of asset management offices at Growthpoint Properties, the company that owns Sunnyside, said the building was compliant but had a limit of 25 people. 

"The property is fully compliant with all fire protection regulations. It is, however, noted that, due to the attendance requirements for hearings, the limit of 25 persons for the space will be exceeded, which would result in additional fire protection requirements. It is for this reason only that the head of EMS issued the notice of noncompliance," he said.

Meanwhile, Andy Chinnah, a human rights activist working with the residents of 80 Albert Street, said Makhubela’s tweets were concerning.

"Especially because a lot of politicians came out on the first day of the fire [31 August] saying that the majority of the residents were illegal foreigners. But we’ve shown that over 50% of the residents were South African."

Chinnah works with the Kopanang Africa Against Xenophobia organisation, which recorded the residents after the fire. They found that 264 of the 501 residents were South African.

"To have an advocate who supports Afrophobia is not in the best interest of justice, and I believe there are other people who could fill his shoes."

He maintains that the commission so far has been skewed to form a narrative of blame on the part of the victims.

And he said that the inquiry chair, Justice Sisi Khampepe, being a Constitutional Court judge, should be able to see this.

"When she’s sitting up front she can see it’s a small room. She must wonder, ‘Surely this cannot be all the victims. Where are the other people? Surely this is not fair,’" he said.  

Kopanang Africa Against Xenophobia's Nigel Branken said he had spoken with the victims of the fire staying at the shelters at Hofland Park Community Centre and Wembley, and others from the victims' WhatsApp group who had "expressed unanimous agreement that Makhubela should not preside over the commission". 

In a note to lawyers at Norton Rose Fulbright, who are representing the victims, he said the residents had "shared stories about Operation Dudula's activities, including intimidation, assault, and theft, particularly targeting foreign residents". 

"They expressed concerns about being blamed for the fire already by Operation Dudula in the protest that took place immediately after the fire.

"Victims do not believe, given [Makhubela's] tweets and support of these ... organisations and movements and their personal experiences of violence by Operation Dudula towards them, their families and friends, that he could act in an impartial manner," the note said.