Amnesty Hearings — Sebokeng — 1998-07-14

MR BERGER: Because, Chairperson, they had the right in terms of Section 18 of the Act to apply for amnesty in the prescribed form.  They had from - well from 1996 they had the right to apply for amnesty but even if one leaves that out of the picture and we know that they were intending to apply for amnesty because the judge says so in his judgement, he says "I'm told you're intending to apply for amnesty."  We don't know which of them were intending to apply, all of them or some of them but at least that was mentioned, so in 1994 the question of amnesty was considered.  The form was promulgated in 1996, people were in jail, people were in contact with their lawyers.  In 1997 in May applications were put in, the lawyers knew that there was a problem and the applicants dilly dallied from May until January and it was only after a letter from the TRC in November of that year saying we still don't have any information from you that the fresh applications were re-submitted.  So, yes, the applicants had the right to apply for amnesty but it's their own delay which has put them in the position which they are in today.  Mr Mthembu applied timeously, he exercised his right and by doing so he infringed upon the rights of the victims.  Well, he had that right and he did it and the law allows it but the law also says if are vested rights and just like the police acquired a vested right when the Section 32 letter was not served timeously, so the victims acquire a vested right - I now have the right to sue civilly because you, Mr Applicant, have not complied with the provisions of the Act, you are late and you are now not entitled to be immune from civil and criminal litigation.
	At page 98 of the Malutsi judgement, Chief Justice Corbett said at (h) "Having given the matter anxious consideration" in other words weighing up the respective rights, competing rights, "I have come to the conclusion that there is insufficient indication of a legislative intent to warrant interference with a vested right of the Defendant, Police Force, in his favour the expiry term provided by Section 32 has run it's course.  I therefore opt for the restricted interpretation of Section 12.2 (i) of the proclamation." 
	It follows that the appeal must succeed.  Our submission is that there is insufficient indication in the statute to  warrant an extensive interpretation and the reason that we say that is because we must go back to Section 18 which says that you shall submit an application in the prescribed form and it's coupled to a time period, that shall governs both and they are linked.  If one takes out - if one reads it - shall within twelve months, if one reads that as the prescribe period, submit such an application to the Commission in the prescribed form.  If one looks at the way that sentence has been constructed, the two commas are inserted to provide for an extended period and extended prescribed period but if that extended prescribed period was not there - let's say that the Act had from the beginning set the 30th September as the cut off point, the legislation would read that any person shall on or before 30 September 1997 submit such an application to the Commission in the prescribed form - it's an imperative and then there's Section 21 (a) as well as Section 3 (i) (b) which says that the requirements of the Act are a requirement for amnesty.  The question which is raised is then why, why is that there.  One then has to look at Section 19 and the purpose of having an application under oath in the prescribed form is to enable the Committee to then conduct it's investigations with evidence now before the Committee.  The Committee could even grant amnesty on the basis of certain applications without hearing oral evidence because there's written evidence and certain investigations can be undertaken.
	There's a case that, that I wish to refer to, which is not in my heads of argument.  It's the case of S. Bothma, B-o-t-h-m-a and Son Transport (Pty) Ltd. versus the President of the Industrial Court and others, 1988/3SA/319 Transvaal.  The judgement of Judge Myburgh, the Judge Myburgh who is the present President of the Labour Appeal Court.  It was a labour case, it dealt with an application for interim relief in terms of Section 43.4 of the old Labour Relations Act.  Section 43 (ii) of that Act said that any party to dispute who applies under Section 35 for the establishment of a conciliation board in respect of a dispute may, the use of the word there was "may", at the same time or within seven days apply, here it was to the Minister but it came to the Industrial Court for an order in terms of 43.4.  The regulations there for Conciliation Boards that there was a prescribed form and it had to be submitted and the dates had to be clear and that form had to be signed.  Reference was made in that case or by counsel for the applicant to the Maharaj decision, the precise passage that my learned friend relies upon in his heads of argument, but the facts of the case were very simply that the application for the Conciliation Board was made on the 3rd September - I beg your pardon - was made on the 4th September and the application for relief in terms of Section 43 was made on the 3rd September, in other words, one day before instead of at the same time or within seven days.  Counsel for the applicant argued that well within seven days could mean within seven days either way and the court said no, it can't, even though there's just one day difference, the legislator has said you do the one and then if you want to do the other, it comes afterwards.  That was how the "may" was interpreted and the application was struck out because it did not comply with the provisions of Section 43 and the reason for that was you have to apply for a Conciliation Board first, you have to get the conciliatory machinery in progress and once you do that you can then apply to the Industrial Court for relief and even though, in that particular case, there was only one days difference, the court said no, you've done it incorrectly and the legislature then implied the - the sanction of the legislature is if you don't do it properly, you forfeit your relief in terms of Section 43 (iv) of the Act.

MR LAX: I've heard you on that but just maybe you can help me then.  This is a real situation that faced the Commission -on the last day of the cut off date and several thousand applications come in, many of which are defective.  On the interpretation you're wanting us to apply they're all out because there is no other time for them to be rectified, the cut off date is passed.

MR BERGER: That's why I argued earlier that substantial compliance is for the purposes of this form and many other forms which have preceded it in the case law, substantial compliance is sufficient, but if one has look at paragraph 13 our heads of argument, we set out the major points which were not canvassed in the applications such as the Acts in respect of which amnesty was sought.

MR LAX: You see, my point is simply this, how could Section 19 (i) be of any use to anybody, okay, if we have to adopt the interpretation you have just asked me to adopt.  In other words, unless those forms were substantially completed, how could Section 19 (i) (b) be contemplated at all then because unless they were substantially completed and substantially complied with, why would there have been the need then for further completion, further directions, even further particulars?  This is before Section 23, okay?  Now this is before the subsequent, I mean, 23 okay?

MR BERGER: Yes.

MR LAX: It's before that other process of checking, as you put it, full disclosure.