Amnesty Hearings — Bloemfontein — 1997-05-15

JUDGE WILSON: But you are accepting it already as forming part of the application. That is the point I am trying to make.  You accepted it at the time you got it, as forming part of the application, didn't you?

MS THABETHA: I wouldn't say I accepted it as forming part of the application, but to me it appeared as if it was a statement, you know, relating to Motsamai's application.  That's why I wanted a confirmation from Mr Mthembu.

JUDGE WILSON: Well, why didn't you ask him to amend his application, to extend it to this? You had an application in front of you, which I presume you looked at.  This is what worries me. We refuse applications because they are not shown to be politically inspired, don't we?

MS THABETHA: Yes, we do.

JUDGE WILSON: These applications, you wanted a lot more information if they were applications, but you rather wrote and said this is - I am supporting what my Brother here says - your letter indicated that you accepted this, that this could be part of his application, didn't it?

MS THABETHA: Yes, it did.

JUDGE WILSON: And when you got Exhibit B you accepted that as forming part of his application, and you didn't write back and say we cannot accept this, or will you file a proper application, or anything of that nature. Despite the request at the end of his letter where he says does it meet with the requirements, you accepted it.

MS THABETHA: As I have explained to Mr Chair, I did go and consult with my head about it.

JUDGE WILSON: Well, it doesn't matter, you ...

MS THABETHA: And yes, I accepted it.

JUDGE WILSON: The management of the Amnesty Committee accepted it and did not communicate with the applicant's attorney.

MS THABETHA: Yes, we did accept it.

ADV DE JAGER: I have finally got one further problem, that I haven't raised yet and which only occurred to me now. This application was signed under oath on the 23rd of March 1997, no, on the 11th of March 1997.  I don't know when it was received by the Amnesty Committee, but we have the position as far as I know, that the cut-off date and the date to file applications was not extended legally yet.

MS THABETHA: The application form was signed on the 8th of November 1996.

JUDGE WILSON: Contested, is what you were asked.

MS THABETHA: Okay.  Yes.

ADV DE JAGER: Do you know whether the Act has been amended in the recent week, yet to extend the cut-off date and to extend the date in which applications should be filed?

MS THABETHA: As far as I know it hasn't been amended.

MR MTHEMBU: But Mr Chairman, the date is the 11th of March not the 11th of May, if that is what you are thinking of.

ADV DE JAGER: Yes, the 11th of March. I am happy with the 11th of March. That is after the time that applications could have been filed, in terms of the existing Act, which hasn't been amended up to today as far as I know.

MS THABETHA: As far as I know, Member of the Committee, when we get an application form, that has not been attested, we usually send it back to the person to attest it - you can correct me.  We take it that the application form is just that not all the information is there, such that if it was ... (intervention).

JUDGE WILSON: The point is, what is the legal cut-off date at present.

MS THABETHA: The 10th of May.

JUDGE WILSON: May?

ADV DE JAGER: The Act was never amended.

JUDGE WILSON: The Act was never amended, was it? It was notified that it was going to be, but has it been amended?

MR WAGENAAR: If you are asking me, Mr Chairman, I was under the impression that it was done by proclamation.

ADV DE JAGER: You are under the wrong impression, because it is the Constitution, the old Constitution had had to be amended and I know they have been busy doing it, but I don't want to belabour it now, because if I am correct, we decided in another matter that we can't hear matters before the Act has in fact been amended.  So I am inclined to - seeing all the problems we have in this case that I shouldn't burden you with another problem, but at least I want to draw  your attention to it, because I think perhaps that's another problem, but let's leave it at the moment, because we could perhaps deal with it later.

MS THABETHA: Can I ask a question, Adv De Jager. Are you saying that if an application form was signed before December and it was not attested to, let's say it was attested to after December, in essence what it means is that the date of the application form is after December?

ADV DE JAGER: No, in essence it would mean that you should ask us to condone it, because it is a mistake, it is not a real application in terms of the prescribed Act.  It can't be amended without being condoned. It is a mistake, and it should be condoned because the prescribed form requires an attested form.  And if something is not - if it is not sworn to, it is not a good application, but it could be made good by signing it and if it is condoned this over - the fact that it wasn't signed before, could I think, be condoned by the Committee if the Committee is asked for, or if the Committee is prepared to condone it without being asked.  But it is not legally correct, and all you people should know that.

UNKNOWN: Isn't the legal position that where a party is required to comply with certain formalities, in making an application, if he makes the application before the prescribed date, but it is defective, there is an application but the application is defective, and if the defect is corrected before the actual hearing, there is - when the hearing takes places, a valid application before the tribunal.

ADV DE JAGER: But shouldn't you be asked to condone your own mistake? Can you correct your own mistake without being asked to condone it?  By the people sitting about it. But let's leave it. I don't want to burden you with further arguments, because I see you are not prepared on this, and you can't argue at the moment, so let's leave it there, and we will consider it and I think, at the moment, perhaps we should allow you to lead evidence and we should reserve judgement and see what we should do.  Whether we can solve the problem for you.

JUDGE WILSON: One of the problems for you, is the last question you put to Mr De Jager, is that the application may have been dated the 8th of November.  It was not handed in to be sent to the TRC, it was not lodged till after it had been signed on the 11th of March, when it was handed over to an officer of the TRC here in Bloemfontein.

UNKNOWN: M'Lord, I don't think that is the situation.  He applied for amnesty before it came to the TRC, and then what occurred in March is that there was a kind of complication, amplification of the ... (intervention).

JUDGE WILSON: That is a different transaction which took place on the 24th of March.

UNKNOWN: That is correct, M'Lord.

JUDGE WILSON: The application form was handed in after shortly after it was attested on the 11th of March.  It was not handed in with that other form and that ... (intervention).

UNKNOWN: There is some implication that the Truth and Reconciliation Commission received it on the 20th of December 1996.

JUDGE WILSON: There is a stamp there, but then it was returned to him apparently, but if you will look at the Act, the definition of the Act in the Act its cut-off date means the latest date allowed is the cut-off date in terms of the Constitution, and that is what has to be amended.  But I hardly support my colleague's suggestion that we should get on with the evidence.  Do you have anything to say in that regard?