Amnesty Hearings — Boksburg — 1999-02-22

MR CLAASSEN: Mr Chair it is my instruction that this particular application was done in the handwriting of my client, was done by my client himself.

CHAIRPERSON: The Zulu one?

MR CLAASSEN: The Zulu one, that is correct.  Mr Chair the first application which it is also my instruction the one that preceded the latter one by two months, was, when I asked my client about this, the applicant, he said that they became aware of the amnesty procedure, he was at this stage already  serving a prison sentence, he was sentenced, and apparently someone offered to assist him.  He said there was a white male in gaol with him who offered him, who offered his assistance in completing this application form.

CHAIRPERSON: A fellow detainee, a convict?

MR CLAASSEN: That is correct Mr Chairman.  A fellow convict who offered his services in assisting people and apparently filling out these application forms.  Mr Chair if I might just, on page 24 of the bundle, I'd say about half of the last paragraph, B, this is a translation that I believe was done by the TRC of the Zulu application submitted by the applicant.  It is, he says
		"...I do not know English or Afrikaans that is why I 		am writing in Zulu."
Explaining the reason for the second one in Zulu.  Mr Chairman I took this matter up with the applicant and it is quite obvious that the contents of these two applications are vastly different, in that the first one is, to a great extent, a denial of any involvement, whereas in the second application he clearly states his, his involvement.  Mr Chair if I may offer an explanation for this, it's also instructions from my client that it came to his attention in the time after the first appliation he was assisted by this man, this fellow inmate of his, he said that he was initially of the impression because he was communicating in Zulu and he said that the man that he was talking with in Zulu and English, was alternating between English and Afrikaans, he said there was, appeared to be a gross miscommunication between them.  He indicated to him that he did in fact sign it.  It is his signature, it is a sworn affidavit, but he said it was, it became apparent to him that there had been a problem with the communication between them and Mr Chair if I understand my client correctly he indicated that I believe someone within the prison authorities alerted, brought it to his attention that there might be a problem with his application relating to the first affidavit submitted, and on the basis of that he decided himself then to write a second application.
	Mr Chair if I might just get back to the fact that I believe at this stage it appears quite clearly that the two of these applications were received together by the Amnesty Committee, or by the TRC. ...(intervention)

CHAIRPERSON: On that one, Mr Claassen, it would on the face  of it appear that they were received on the same day in that each has got a stamp indicating that it was received on the 20th of December, but it might be so, and I'm not giving evidence here, but it might be so that there were a couple of baskets of outstanding applications that had come in in the past few months that received this stamp dated the 20th of December.  So they might not have actually come in, and the fact that the numbers are quite far apart, the one, there's about 200 numbers between the application, the reference numbers, indicates that they probably were not in the same envelope, opened at the same time, received together.

MR CLAASSEN: That is indeed true Mr Chair.  The question which I would like to address, which I think arises from this, is the question that I, that should be asked, is where they, for reasons of purely administrative reasons, dealt with on the same, or at the same time, or had the initial application been dealt with at a time different to that of the second one.  It is true as the Committee remarked, and I believe it was also indicated to me by Ms Lockhat, the problem that arose was that it was registered under different names, or different numbers, and the impression was also created that it was two different persons.
	Mr Chair what I would like to get at is, I think you also said so yourself, the decision of the Committee I think is purely based on the first one.  Obviously if the second one had been considered it would have been different.  It is, it is clear from the second one that the appliant does not deny his guilt but indeed admits it.

CHAIRPERSON: There is, look we don't know exactly what happened but the probabilities are exactly, I agree with you exactly what you say.  If one takes a look at Mr Xaba's application, this is a similar sort of thing, where he's filled in an application form, and then he's put in a little affidavit explaining why he's put in a second one.  But if you look at Mr Xaba's first application form, it's not a sort of complete denial as the other, which probably is reason for the fact that there wasn't a decision made there, because there's no ways that a proper decision can be made in chambers, which involved a gross human rights violation, such as the killing of a person.  So one would imagine that the second one where Mr Mbatha says, "...I shot the man", would have been dealt with in chambers.

MR CLAASSEN: Thank you Mr Chair.  No, I absolutely agree with you it appears to be the situation.  Mr Chair what I'd like to get at is, if I might just, this, the Committee is a quasi judicial body, Mr Chair, and I think as far as the fact per se should we discuss, should we get to the point of the functus officio had the application been dealt with, I think it stands to reason that if a decision is reached based on all the relevant and available facts, and a decision is reached based on that, surely there is very little recourse in later coming, or later bringing the argument that the decision should be looked at again, if all the, all the factors had been considered.
	Mr Chair and especially, and referring to specifically that, it is my submission that I think, and as you rightly say, it stands to reason, whether the second one had been considered, and, or had it been considered after the decision had been made, which obviously would have complicated things a bit, if I may, it appears from the application, the way it has been put together, and as you say purely on the face of it, true that it might have been administrative of nature the fact that it was stamped on the same date.  Mr Chair I think my line of reasoning would be that the applicant  could consider himself extremely unlucky in the sense that he did indeed submit two applications before, if, as I say it stands to reason, the decision was made, and a conclusion was reached based on only one of those applications, the one which does not favour him, or puts him in a position where, ...(intervention)

CHAIRPERSON: The one which basically excludes the granting of amnesty, because it is essentially a denial of guilt, and you don't grant amnesty to somebody who denies that he's done something.  I mean you don't grant amnesty to somebody for not  doing anything.

MR CLAASSEN: That is true Mr Chairman.  As I said, I took this up with the applicant and he said that because of the previous miscommunication between himself and this man that assisted him, he then out of his own decided to bring a further application.