Amnesty Hearings — Sebokeng — 1998-07-14

MR STRYDOM: It makes a difference because if there's an outright rejection and the applicant has run out of time that would mean that there would be no application but a return means that there has been an application but the fact of the matter is also in our instance, these applications weren't returned so the original applications were kept and what was asked is just further particulars and completion on that applications already in the possession of the TRC and in regard of which applications numbers were allocated already.  In fact, if I can refer to the letter next to my heads of argument, there was already - there must have been talk about a hearing already as early as the 15th July 1997 because there was already at that stage talk about that hearing should take place on the 11th August 1997 before the cut off date so the Committee at that stage would have accepted those applications albeit not complete applications, but those applications were in fact accepted at that stage and then subsequent to that there was some questions asked in terms of Section 19 (i).

CHAIRPERSON: Well, yes.

MR STRYDOM: My further submission is that even if Section 18 is left aside for the moment and one interprets ...

CHAIRPERSON: Yes, proceed?

MR STRYDOM: My further submission is that on Section 19 standing on it's own and then purely on interpretation issue, one must read any application for amnesty to also mean any - meaning also defective applications and there's no time period or limit to, connected to Section 19.  So the fact of the matter is that any application may be returned or further particulars can be asked or directions given in respect of completion etc and this is exactly what happened, that "any" cannot only refer to applications made on the prescribed form and as I've put in my heads, for that matter, applications assigned and attested to on the prescribed form.  Otherwise one would have expected the legislator to add here "upon receipt of any application in terms of Section 18" or "upon receipt of the application in the prescribed form for amnesty the Committee may return" but reference there is to any application.  If an Act is interpreted, each word must get..[intervention]

CHAIRPERSON: The word application is not defined in the Act, is it?

MR STRYDOM: No, the word application is not defined in the Act as far as I'm aware and the rule of interpretation is quit clear that each word must be given it's ordinary grammatical meaning and "any" as I stated in my heads is a wide term and means exactly what it says, it means any.
	There are certain circumstances under which the grammatical meaning cannot be given to a word and I can think of possibilities.  Say for instance you have ambiguity or some absurdity, then obviously that grammatical meaning cannot be given to that word but in this instance that cannot be argued, any application is not unclear, it's very precise and clear and therefore I would submit that Section 19 (i) as I can call it that, saves the day for the applicants.

CHAIRPERSON: Isn't the key question here, I mean we've been sitting here listening to both of you argue, but isn't the key question here this - when the TRC receives an application from an applicant which is defective in one way or another, does the TRC have the power under the Act to call upon the applicant and say "we've received your application, it is defective in these respects, would you please remedy these defects" isn't that what we're here about?

MR STRYDOM: Well, that's exactly what 19 (i) says.

CHAIRPERSON: So is your submission that the Section 19 was designed to do precisely just that?

MR STRYDOM: That is my argument.

CHAIRPERSON: Yes.

MR STRYDOM: One must also look at the background, we will have lots of people, lay people that want to apply for amnesty and certainly, I think that section was legislated exactly for that purpose, to assist people that put applications before the Amnesty Committee, that is defective, maybe they don't know exactly how to fill in that form, how to go about it and maybe they don't even know the meaning of deponent or know how to swear before a Commissioner of Oaths and they get other people to fill in their documents and these documents are sent.  So exactly for that purpose, that section was added, that's my submission.
	Mr Chairman, then I set out my argument in more detail in my heads of argument but I think I will have to say something about the prejudice I refer to on page 16.  I make the submission "there is no prejudice to anybody if the applications are accepted in an incomplete form"

CHAIRPERSON: When it comes to prejudice, here is the problem.  If the Committee rules that the applications comply with the Act, the prejudice to the victims is that, as I understood the submission, the applicants are at least one third down the road to being granted amnesty.  Still the question would still be decided whether they've made full disclosure and whether they had the necessary political motive, that's the prejudice on the one side.  Now on the other side, if the applications are refused at this stage, that's the end of the matter for the applicants, that's the prejudice.

MR STRYDOM: That's the prejudice for the applicants.

CHAIRPERSON: So is it your submission that if one weighs the prejudice here, the one that the applicants are likely to suffer ..[inaudible] those, the prejudice that the victims would suffer if the application is to be granted?

MR STRYDOM: So I would submit that the prejudices are in fact even with the balance so there cannot be a restrictive application from the viewpoint of the applicants but similarly, the same can be said from the victims, so one will have to interpret the Act as it stands and without giving it a strict interpretation or otherwise and my submission then is quite clear what the intention of the legislature was.
We don't even have to deal with the intention of legislature if do strict interpretation of the Act and the Act is clear.  Only thereafter, if it's unclear, then one will have to look at the intention of the legislature.  The intention of the legislature only comes into play when Section 18 is investigated to establish if the clauses there are preemptory or directory but if one looks at Section 19 is clear and then in terms of interpretation rules one does not even look at the intention of the legislature.  Only if it's unclear, one would look at the intention of the legislature.
	Mr Chairman, I should also deal with the application of Mr Khubeka.  Now Mr Khubeka is actually very much in the same situation as the other applicants because Mr Khubeka's application, original if I can call it defective application, was also filed initially.  The Committee did not ask further particulars and further information in regard to his application but his application was also made at that stage.  My submission is that even at this late hour, if the Committee asks further particulars, that still can be granted but the fact of the matter - he made an application just like the other people initially.  There's some unfortunate situation because what in fact happened was that there was an indication that he made and he still maintains, I had another discussion with him, that in fact filled in a proper form, he gives me the name of the person that works for the TRC we gave this form to but up to now this document cannot be located but the fact of the matter is and I want to argue that he can still rely upon the original application, albeit defective, but that still can be cured by providing further particulars if asked to give further particulars.