Amnesty Hearings — Sebokeng — 1998-07-14

CHAIRPERSON: On the 10th May 1997, the attorneys who were acting for the remaining fifteen applicants submitted applications on behalf of the remaining applicants.  These applications were neither signed by the applicants nor attested to by the Commissioner of Oaths.  Each application was accompanied by a covering letter in which it was stated inter alia that the applications are incomplete, that the applications relate to the charges in connection with the Boipatong Massacre and that the outstanding information would be furnished in due course.  The reason for the incomplete nature of the application and the fact that they were not signed by the applicants was given as being that the attorneys had been unable to get hold of the applicants prior to the deadline for the submission of the applications for amnesty which at that stage stood at the 10th May 1997.  The covering letter also referred to a conversation which the writer of that letter had with Advocate Mpshe in regard to what was to become of the applications.  Although initially the first and the last pages of the applications were submitted by telefax transmission, the entire applications were subsequently sent by registered post.  These applications were received by the TRC prior to the 30th September 1997.  These applications were duly registered by the Amnesty Committee and were allocated numbers in accordance with the internal procedures of the Amnesty Committee.  On about the 14th July 1997 a possible setting down of these cases was discussed and this was followed up by a letter of the 15th July 1997 by the Attorneys who were then acting for these applicants.  In a letter of the 10th November 1997, the Executive Secretary of the Amnesty Committee reminded the applicants of their earlier undertaking to furnish the outstanding information.  At the same time he advised the applicants that their applications had been identified as matters that were to be dealt with at a hearing and also pointed out that failure by the applicants to furnish the outstanding information was presenting difficulties to the Amnesty Committee in terms of processing these applications.  Eventually the present attorneys for the applicants submitted the outstanding information on or about the 13th February 1998.  This took the form of properly completed Form 1 duly attested before Commissioners of Oaths.  No such further applications though were submitted on behalf of Khubeka and Mbatha.  It is common cause that these further applications by the applicants were received well after the extended deadline of the 30th September 1997.
	 The question before this Committee is whether the applications by the fifteen applicants comply with the requirements of the Act.  The matter is governed by Section 18 (i) read with Section 19 (i) of the promotion of National Unity and Reconciliation Act No. 34 of 1995 as amended.  Now Section 18 (i) provides "any person who wishes to apply for amnesty in respect of any act or omission or offence on grounds that it is an act associated with a political objective shall within twelve months from the date of the proclamation referred to in Section 7 (iii) or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form."  The prescribed form referred to in Section 18, sub-section 1 was published in Government Gazette No. 16985 dated 9 February 1996 and it is referred to as Form 1.  Form 1 requires inter alia that it must be completed in block letters, sworn to solemnly, affirmed before a Commissioner of Oaths and thereafter returned to the Amnesty Committee.  It is common cause that at least by the 30th September 1997 applications on Form 1 had been submitted on behalf of the applicants.  These applications were incomplete and had not been signed by the applicants themselves and had not been attested to before the Commissioner of Oaths.  
	The issue of substance is whether the applications which are now before this Committee complies with the requirements of the Act and this in turn depends upon the proper construction of Section 19, sub-section 1 of the Act.  Now Section 19 (i) of the Act provides "upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary or request that the applicant to provide such further particulars as it may deem necessary.
	Section 19 (i) appears to contemplate that the Amnesty Committee would receive not only incomplete applications for amnesty or improperly completed applications but applications which are not made on the prescribed form 1 or for that matter applications which may not have been signed by the applicants themselves.
	The use of the word "any" and the provisions suggest that it refers to any application whatsoever.  What the Act did was to empower and authorise the Amnesty Committee to call upon the applicant who has furnished a defective application to rectify that defect.  We believe that the interpretation we are placing on Section 19 (i) is consistent with the policy of the Act.  It must be remembered that one of the objectives of the Act is to uncover the gross human rights violations of the past.  It seeks to help the survivors and the dependants of the tortured and the wounded, the maimed and the dead to discover what did in truth happen to their loved ones where and under what circumstances it happened and who was responsible.  That truth which the victims so desperately seek is more likely to be forthcoming if the perpetrators of these gross human rights violations are encouraged to come forward and tell and disclose the whole truth upon the promise that if they do so, they will not be prosecuted.  In dealing with these applications, that is what we have to bear in mind.  In our view the Amnesty Committee was entitled upon receiving the applications by the applicants to call upon the applicants to remedy the defects in their initial applications by submitting the outstanding information which the applicants subsequently did by filing further applications which were properly completed and duly attested.  The initial applications must be read together with the subsequent applications which the applicants submitted as supplemented by the further particulars and the further affidavits which the applicants submitted.
	In the result, the Committee is satisfied that the application by Qambelani Buthelezi, Bhekinkosi Mkhize, Tebogo Magubane, Vincent Khanyile, Timothy Stals Mazibuko, Jack Mbele, Sonny Michael Mkwanazi, Moses Mthembu, Mplupeki Tshabangu, Sipho Buthelezi, Petrus Mdiniso, Mxoliseni Sibongeleni Mkhize and Richard Dlamini comply with the requirements of the Act.
	In so far as the application by Mbatha is concerned, the applicant Mbatha is not before this Committee and therefore his application cannot be dealt with at these proceedings therefore his application is removed from the roll.
	In regard to the application which was not before us but which we are told was made by Mr Khubeka, that application - there appears to be further investigations which are to be conducted in regard to that application and therefore it cannot be dealt with presently.
	Mr Strydom, the application by Mr Khubeka was never enrolled was it?

MR STRYDOM: I didn't hear that, was never?

CHAIRPERSON: The application by Mr Khubeka, it was never enrolled was it?

MR STRYDOM: No, only the original document, the defective if I can so call application was sent through to the Amnesty Committee, Mpshe - I think a number has been allocated to that  application as well.

CHAIRPERSON: No, I understand but is it before us?

MR STRYDOM: Not at this stage.

MR LAX: Perhaps a better way of putting it would be to say has it been set down for hearing here and the answer is no.

MR STRYDOM: No.