Amnesty Hearings — Johannesburg — 1999-02-08

MR SHANE: I submit Mr Chairman, from this he doesn't know, it got lost somewhere on the way.  Mr Chairman, if you look at your mandate, your function here I submit with respect, is clear, your function is the promotion of national unity and reconciliation, and Mr Chairman, I submit there is nothing to suggest that anything underhand has gone on here.
	The applicant as he says in his affidavit, became worried about this, when he didn't get a notice to attend the TRC hearings.  He never ever before, he never checked if he got an acknowledgement, he didn't know about the acknowledgements.  I submit that is not important Mr Chairman.
	The fact is this, as the affidavit of Sally Sealy suggests, this is not the only application form that has gone missing, it could be human error.  I submit it is no error on the part of the applicant, because he did make his application.  He cannot say what happened to his application form. 
	Then it is also backed up by the fact that under oath, you heard from his co-applicant, I think it was Mutshatsha, who testified under oath that the applicant, Mzwake Mbuli was also there that day with him, when they filled in their forms.
	Mr Chairman, I submit that your mandate says that you have to lean over backwards in favour of let's call him the applicant, although there are no papers before you, and I submit that on what you've got before you Mr Chairman, it is sufficient to allow the applicant to have an opportunity to satisfy you that he is entitled to apply for amnesty and get amnesty in terms of the Act.
	Mr Chairman, I submit there is nothing more that this applicant or the proposed applicant, because he is not really an applicant before you,  but I submit that it is quite clear from what you've got before you, that he was there.
	I also ask you Mr Commissioner, to take into account what probably on the 10th of May 1997, what was for all involved, a major chaotic day, stressful, hectic, it is a day when things could have gone wrong.  This could have possibly fallen in the car, anything could have happened to it, but this application form did not get to the TRC, that is what we know.

ADV GCABASHE: It did not get to the TRC?

MR SHANE: Sorry, it did not get to be processed by the TRC, I should rather put it.  It might have got to the TRC offices as I said, and something happened to it thereafter, or before it got to the TRC offices, something might have happened to it, but from the applicant's point of view,he went on the last day to make application for amnesty and something went wrong with his application form and it vanished.  That is all he can say Mr Chairman.
	I submit that before you, you can be satisfied that he was there and he did apply with all his comrades for amnesty.  That is clearly before you Mr Chairman, and I submit in the absence of anything to suggest otherwise, you must accept that with the greatest respect sir.

CHAIRPERSON: Are you done?  Mr Shane, there is a few things I need you to clear up in making this application.
	You are in fact making an application to get this on the role?

MR SHANE: Correct Mr Chairman.

CHAIRPERSON: It is common cause that it is not on the role?

MR SHANE: Correct Mr Chairman.

CHAIRPERSON: You have made certain submissions which include amongst others, that there is ample evidence to indicate that your client had in fact completed a form with the assistance of one Sally Sealy?

MR SHANE: Yes sir.

CHAIRPERSON: She says as I understand, that there were a number of applications that day that were put into a box and subsequently handed in to an employee of the TRC in Johannesburg?

MR SHANE: Correct sir.

CHAIRPERSON: You have gone further and says well, look, we accept that it is missing now, it could have got lost en route to the TRC offices, it could have got lost at the Johannesburg offices, it could have got lost en route from the TRC offices Johannesburg, to TRC offices in Cape Town, and that is why it wasn't processed?

MR SHANE: Correct Mr Chairman, I say that in so far as I was explained the procedure of these applications.

CHAIRPERSON: Yes.  What would be the case or the position, if it was lost assuming I accept that the application form was completed, and intended to land up in Cape Town for process, what would be the case if it did not land at the TRC offices, Johannesburg and got lost in the motor vehicle or somewhere before then?

MR SHANE: Mr Chairman, let us assume then that for example the box, a big box, the box with all the applications were being carried to a car, Mr Buthelezi's application was right on top and the wind blew it away and it went missing before it got in the car, that is a similar scenario to what you have suggested, in that case Mr Chairman, I would submit that if the applicant was present, and you are satisfied that he was present and he filled in his form, then I would submit that you would give the applicant the opportunity to bring his application in circumstances like that.

CHAIRPERSON: Now, that would be an exception to the rule.  Do you agree?

MR SHANE: To what rule Mr Chairman?

CHAIRPERSON: That by the 10th of May 1997 at, call it 12 o'clock in the morning, I think ...

MR SHANE: Yes, midnight?

CHAIRPERSON: Yes, such applications had to be submitted and not later.  Do we at least agree on that?

MR SHANE: Mr Chairman, yes, that is what the Act says must be submitted.

CHAIRPERSON: Am I empowered to go beyond that?

MR SHANE: I submit with the greatest respect sir, you are empowered to go beyond that.

CHAIRPERSON: Show me the empowering clause.

MR SHANE: Mr Chairman, I can't show you an empowering clause, but if the purpose of your function is the promotion of national unity and reconciliation, Mr Chairman, there are no rules, there is no precedence, there is no court rules to go on, this is not a court of law, I submit by the very nature of the legislation, promotion of national unity and reconciliation, it would mean that your application of the rules should not in any way be restricted and I would submit Mr Chairman, that only if there were for instance, if there was evidence before you that the applicant was not there, that he was lying or that he came the following day, too late, that is a different issue.
	I submit Mr Chairman, with the evidence of Sally Sealy, with the evidence of the previous applicant that Buthelezi was present, I submit that you cannot view it in a restrictive way with the greatest respect sir.

CHAIRPERSON: What is the test Mr Shane?  Isn't the test to check and to see whether the application form completed, had reached the offices, it doesn't matter whether it was Johannesburg or Durban or Cape Town or East London, wherever, as long as it was in the hands of the Commission by twelve o'clock that day, is that not the test?

MR SHANE: Mr Chairman, I would say not, because if I may ask you this question, Mr Chairman, what would have happened for example if after having loaded the box in his vehicle, the TRC official on his way back to Johannesburg, say at half past eleven in the evening, got hijacked, which was a common thing then, and the whole box ...

CHAIRPERSON: Well, it would have been in the hands of the TRC, not so?

MR SHANE: It would have been in the hands of the TRC and there would have been no applications brought to the TRC, with respect Mr Chairman.

CHAIRPERSON: Then we would have handled it on that basis as accepting that the time restraints on applications, had been complied with, by twelve o'clock that morning, those applications should have been where it was supposed to be.

MR SHANE: Well, I submit Mr Chairman, because this application was handed to Mr George Ndlozi, a TRC official ...

CHAIRPERSON: Who said so?

MR SHANE: Sally Sealy says so, sir.

CHAIRPERSON: What did she say?

MR SHANE: I refer you to paragraph 6.

CHAIRPERSON: Read it.

MR SHANE: I handed the box to Mr George Ndlozi.