Amnesty Hearings — Boksburg — 1999-02-22

CHAIRPERSON: No we understand this, we understand, but what is the situation?  We are a statutory body created by the Act, the promotion of natonal unit and Reconciliation Act No.  34 of 1995.  Our powers are derived from the Act.  We don't have any inherent jurisdiction as such.  Section 5(e) of the Act says, inter alia, that "...provided that" I'll read the last, the proviso, "...provided that no decision, or the process of arriving at such a decision, of the Committe on Amnesty regarding any application for amnesty shall be reviewed by the Commission."  And then there's nothing elsewhere in the Act which specifically gives us the power or the jurisdiction to review our own decisions, set them aside, or disregard them, etc.  What do you say about that?  Would we have any, no matter how compelling a case may be, would we have any power or authority to disregard a decision that, on the face of it, appears to be a final decision, although it hasn't taken into account all the facts, in that it would also appear that the persons who arrived at that decision didn't have reference to the second application?

MR CLAASSEN: That is, that is very true Mr Chair.  I had a look at Section L but I've got the Afrikaans Act in front of me, and it is true what Mr Chair said about the inherent jurisdiction and it is unfortunately that the Committee is compelled to stay within the powers specifically derived from the Act.  Mr Chair, all facts considered, it basically boils down to, and as you rightly said, even 'though a case may be compelling if a decision has been made it makes it very difficult ...(intervention)

CHAIRPERSON: The High Court could set it aside.  I'm not saying it would, but it could.  It would have the power to do that if it was satisfied that it is a matter in which the decision should be set aside.  It might not be satisfied, I mean that would be up to that other forum, but whether we can do that I don't know.

MR CLAASSEN: Mr Chair as you indeed correctly, I've also been informed that I believe it's Rule 58 of the High Court rules that specifically makes provision for, maybe that would be my ...(intervention)

MS LOCKHAT: Just a correction, it's Rule 53 in terms of the Supreme Court Rules, not 58.

CHAIRPERSON: The rule 53, yes, the review procedures.

MR CLAASSEN: Pardon me, thank you Ms Lockhat, Rule 53.  Mr Chair all said and done, that still remains my submission that I think the applicant is very, and as you rightly said all considerations of this nature taken into account a decision had been made, I feel that the only option left would indeed be to take this matter further with the Supreme Court and maybe if they are of the opinion that all relevant facts had not been taken into account there might be further recourse for the applicant.  Mr Chair, I thank the Committee for this opportunity and I would leave it at that.

CHAIRPERSON: Thank you Mr Claassen.  Ms Lockhat?

MS LOCKHAT: That's perfectly in order Mr Chairperson.  That's exactly the same feelings of the Commission, that we functus officio and that rule, section 5(e) applies in this instance.  There are remedies available to the applicant.

CHAIRPERSON: Mr Mbatha, we've been told by Mr Claassen whose representing you, that the reason why you submitted two applications to the Truth and Reconciliation Commission, it's clear from these two applications that what was said in each of them was, is different.  In the first application, you basically stated that you denied any guilt, any involvement, in the death of the deceased.  And in the second application, the one which you wrote yourself in Zulu, you readily admit participating in the incident which led to the death of the deceased.
	These two applications which were submitted by you to the Commission, were received and each was assigned a different number.  During March of last year, was it March, yes I think it's March, during March of last year, the Committee, none of us present here, two other Committee Members, arrived at a decision and it's quite clear from what is before us that they based their decision on the information contained in the first application submitted by yourself, that is application numbr 4175, the application which we have been told you say you were assisted by some other fellow prisoner in filling in, and which was filled in in English which you admit or say that you don't know too well.  The fact of the matter is that a decision has been made relating to the incident which is under consideration at this hearing now.  And once a decision has been made, whether that decision is correct or incorrect, if it's a final decision, and this is a final, was a final decision, the Committee itself cannot reverse that decision, because we do not have the power to do so, the authority to do so.  
	So that decision must stand until such time that it is set aside, and the setting aside of that decision can only take place in the High Court.  That Court would have the power and authority to do so, and it will of course only do so if it is satisfied that it warrants setting aside.  If we were to proceed with your application today on the second application that you submitted, namely the Zulu one, and arrived at a decision different to the decision already arrived at, we would be left with the absurd situation of having two decisions on the same matter.  One refusing amnesty and another one granting amnesty, and that just cannot happen.  
	So we are basically prohibited at this stage from proceeding with your matter for that reason.  Your only recourse if you were to take further steps would be to have the previous decision set aside.  
	In the circumstances the only course to be followed is to have your application at this stage struck off the roll, or removed from the roll, let's put it that way.  That means that your application, your second application, the one that you completed in Zulu, will still be with the Truth Commission, and if the standing decision is set aside, if it is, then we will set the matter down for hearing at a later stage.  So it's not the end of the matter, but it might be if the previous decision is not set aside.  So your matter is removed from the roll.				
MATTER OF NORMAN MBATHA: AM NO 4175/96 - REMOVED FROM ROLL

MS LOCKHAT: Thank your Mr Chairperson.

CHAIRPERSON: That then leaves us with only one applicant in this matter, namely Mr Draht's client, Mr Xaba.

MR DRAHT: That's correct Mr Chairperson, I call Mr Xaba in.

CHAIRPERSON: Mr Xaba, do you have any objection to taking the oath?

BEKI XABA: (sworn, states)

CHAIRPERSON: Mr Draht.

MR DRAHT: Thank you Mr Chairperson.  Mr Xaba, what is your age?

BEKI XABA: I am 32 years old.

MR DRAHT: And where are you residing at the moment?

BEKI XABA: I am in Boksburg prison at the moment.

MR DRAHT: When will you be released from prison?

BEKI XABA: I will be released on the 1st of the fourth month this very same year.

MR DRAHT: The incident in respect of which you are applying for amnesty now took place in January 1993.  Is that correct?

BEKI XABA: That is correct.

MR DRAHT: Were you part of any political party at that time?

BEKI XABA: Yes.

MR DRAHT: Which political party?

BEKI XABA: Inkatha Freedom Party.

MR DRAHT: What was your position in the party?

BEKI XABA: I was a follower.

MR DRAHT: In your first statement to the TRC you mention that firstly you were a victim of circumstances.  Can you please explain what you meant by that.

BEKI XABA: To briefly explain, the reason is that there was violence between the IFP and the ANC, and it was painful to me because black people were killing one another, so that I also became a pawn of this political conflict.  And I, therefore I became a victim of politics, this political game.

MR DRAHT: Your second statement to the TRC was made in full detail.  Why didn't you make your first statement with the same detail?