Amnesty Hearings — Sebokeng — 1998-07-14

MR BERGER: Thank you.  One of the people who it was said that "we are not in a position to contact our clients personally" was Mr Victor Mthembu.  He's recorded there as number as number 13.  His very application was signed on that very day, the 9th May 1997.  So, as a matter of fact, we know that that is not correct in relation to Mr Victor Mthembu.
	The second point is that Mr Lukhozi, Thomas Lukhozi, had an application form submitted, he's number 14 on this list and we now have a statement from Mr Thomas Lukhozi saying that when he was approached to make an application for amnesty, he refused, he did not want to make an application for amnesty.
	For all seventeen people, the first and fourth pages were identical and I set out in heads of argument exactly what was there, there was just a name and address, an age, a case number, a charge and a statement that no civil proceedings were pending.
	The submission that we make is that it is clear that as at 30th September 1997 which was the cut off date, which was some four months after the applications were faxed through to the TRC offices, applicants 1 - 15 had failed to submit their applications in the prescribed form.
	In the case referred to at paragraph 12 of the heads of argument, Williamson versus Schoon, Judge Nafsa was dealing with the question of whether or not the court had jurisdiction to stay some civil proceedings pending the outcome of Craig Williamson's amnesty application.  19.6 is a sub-section of 19 and 19.6 says "If the act, omission or offence, which is the subject of an application under Section 18, constitutes the ground of any claim in civil proceedings instituted against the person who submitted that application.  The court
hearing" - and then I'll summarise the court hearing that claim - " may in it's discretion stay the civil proceedings pending the consideration and disposal of the application."
	The section specifically talks about someone having submitted an application in terms of Section 18 and Judge Nafsa found that the court had no jurisdiction to entertain a claim for stay of proceedings until such time as a proper application had been made in terms of Section 18 and at page 1071 b - c of the judgement, Judge Nafsa said "It is important to note that in terms of Section 19.6 and application for amnesty, with the required particularity is required to be lodged before a court is called upon to exercise it's statutory discretion.  No provision is made for a stay of proceedings before an application for amnesty has been made."
	If that is so, Chairperson and Members of the Committee, that the court has no jurisdiction to stay proceedings until an application for amnesty has been made or as Section 19.6 expressly says "the person who submitted that application or above that an application under Section 18 has been made".  In my submission, that judgement is authority for the proposition that an application is only properly made in terms of Section 18 when it is submitted within the prescribed time period in the prescribed form and contains the particularity required by the prescribed form.  
	Now obviously my learned friend pointed out in his heads of argument, the prescribed form says it must be in capital letters and therefore does it mean if it's not in capital letters that that's not proper compliance?
	There's a whole string of cases.  Sometimes the Appellate Division goes one way, sometimes the Appellate Division goes another way but the thrust of the cases is that if compliance is prescribed, if it's preemptory, that means substantial compliance.  Sometimes the cases put it differently, they say well, let's not talk about substantial compliance or exact compliance, let's look at what is requested and how far from what is requested has been furnished.  That's another way in my submission of saying look for the substance, has the substance been complied with.

CHAIRPERSON: Let me put this to you.  You see one of the problems that the nation faced at the time of the promulgation of the statute was that there had been massive gross violation of human rights.  Victims had no idea how and when it occurred, they didn't know the truth.  The primary purpose of the Act is to uncover the truth and in doing so it encourages the perpetrators to come forward so that the victims can learn if the truth is spoken - what happened to their loved ones, the circumstances under which they died.  Should we not find an interpretation that would be consistent with this policy of the Act?  An interpretation which would be consistent with the policy of the Act, ensuring that perpetrators come before the TRC rather than obstructing them from coming to the TRC.  Isn't that the policy which one should have in mind in trying to give meaning to these provisions?

MR BERGER: Chairperson, there are competing considerations as far as the victims and the perpetrators are concerned.  It is a major purpose of the Act to uncover the truth.

CHAIRPERSON: Well the victims' interest is to know the truth that's one of their interests and they are here today, I suppose, precisely because of that.

MR BERGER: Chairperson, if I can develop an argument, my point is this - that is a major purpose of the Act, but the Act sets certain parameters - for example, if a perpetrator were to come today to say "I would like to apply for amnesty and appear before the TRC and I can give vital information about some massacre that has not yet been - the truth about which is not yet known."  Would the TRC and would the Amnesty Committee entertain that application even though it is late and I submit not because the Act says "you shall submit your application within a certain time".  The offices of the TRC  were kept open, I recall until midnight on that day so that applications could be submitted timeously.
	Chairperson, I'll come back if I might to the question of competing interests but there's a judgement ...[intervention]

CHAIRPERSON: Perhaps you should just deal with that now so that we can get on with your argument - deal with the competing interests now, unless it will put you off the track?

MR BERGER: I'll come back to where I was and I'll proceed to competing interests, Chairperson.

CHAIRPERSON: Next, the competing interests?

MR BERGER: I was leaving that for the end of my argument but I can deal with it now, Chairperson.

CHAIRPERSON: Well with whatever suits you.