Amnesty Hearings — Sebokeng — 1998-07-14

CHAIRPERSON: It does not give the Minister the powers, for example to say "in your application" one, it must be in capital letters, if it is not in capital letters then you're out of the process.

MR STRYDOM: It doesn't, but it does give the Minister powers...[intervention]

CHAIRPERSON: If it is not deposed to before a Commissioner of Oaths then you're out of the process, requirements which are not contained in this section itself.

MR STRYDOM: No, it doesn't give any other powers but to prescribe to prescribed form.  Now obviously that would be open to argument, what the meaning of prescribed form is if the Minister will have the powers to then have certain things added in this form but my submission is that if these powers would have been so wide or the intention was to make it so wide then to add under oath and things like that in block letters, that would have been in the Act itself, so those powers are actually limited and the powers only to prescribe the form, the kind of form, that would be the submission.
	What I was saying is that the latter portion of the section is directory and the reason why I'm saying that is - or shall I just go one step back - now the test is to determine if a certain section is preemptory or directory, one would have to look at the intention of the legislature who will have to look at the Act as a whole and the purpose of the Act wants to serve and all other things like that and if one does that, one will have to have regard to Section 19 and Section 19 creates the procedure whereby any application, I place emphasis on "any" application may be returned to the applicant and give such direction in respect of the completion and submission of the application as may be necessary or request the applicant to provide such further particulars as it may deem necessary.  Now the purpose of that section is specifically to deal with applications that has not adhered strictly to the prescribed form, that is my submission and therefore, I say that that second part of Section 18 is only directory and is not preemptory.

CHAIRPERSON: Let us assume that we are with your proposition that is what the section stands for.  Now let's assume the Amnesty receives a letter, handwritten letter, you know by an applicant who is in prison who says, you know, I want to apply for amnesty in respect of a,b,c and d and signs the letter to the Committee.  Is it your submission that the Amnesty Committee will receive that - that will be an application within the meaning of the Act.

MR STRYDOM: I would say yes.

CHAIRPERSON: Okay, now - and then you're saying that then the Act says that you, in terms of Section 19 (i), the TRC would then give directions to this applicant and say here is the form, complete this form and then submit it again?

MR STRYDOM: Yes.

CHAIRPERSON: Now, what is to become of that application, the first letter?

MR STRYDOM: The first letter will obviously stand but eventually if, say for instance after the Committee asks for further particulars and asks for a proper form to be completed, nothing comes of that and then obviously the argument would be that requirements was not met because then no further steps were taken but in this instance, the fact of the matter in this case, applications were made and the form was used although not completed form and not properly signed and deposed to, but then subsequently and in terms of Section 19, further particulars and more details were asked and it was submitted and therefore I would say that there's been compliance with this section, Section 19 and therefore I would say there's compliance with Section 20 in that the application compliance with the requirements of this Act because Section 21 (a) would obviously also refer to Section 19 and if there's compliance to Section 19, which I submit in this case there has been, then there's been compliance with the Act.
	I also make the submissions in my heads ...[intervention]

CHAIRPERSON: Just before you go any further, when this section says the application - the Committee may return the application to the applicant, what is the effect of returning the application?  Is the effect of returning the application that there is no application before the Committee once it is returned?

MR STRYDOM: No, I won't go along with that - may return the application - does not mean that, obviously a copy would be kept by the Committee.

CHAIRPERSON: Well it doesn't say return the copy of the application it says return the application, I suppose what was submitted to the Committee is then returned to the applicant so once it is - the act of returning, what does that mean?  Does it mean there is no application now until the directions given by the TRC are in regard to the completion and submission has been complied with?

MR STRYDOM: I would go along with that because I will say what I said previously, if that application is returned and nothing is done thereafter, obviously that would mean that there is no application before the Committee.

CHAIRPERSON: Well isn't therefore the proposition then correct that until such time that once it is returned, there is no application before the Amnesty Committee?  There will only be an application once it's complied with the direction and if this direction, as in this case, were only complied in 1998, that's when the application was made which was hopelessly out of time?

MR STRYDOM: My submission is if there's an initial application even though it's defective, there's an application and then that application has been accepted by the Committee, but the Committee cannot follow up on that but to act in terms of Section 19 (i), so if there's an action in terms of 19 (i) that means that the application has provisionally prima facie been accepted and then there's certain acts that follow after that and this is what happened in this matter.

CHAIRPERSON: I was just concerned about what meaning one has to attach to the return.  If you return the application does it mean that there's no longer any application until the direction has been complied with?

MR STRYDOM: The fact of the matter - initially there was an application but a defective application but my submission is there is still a defective application, that doesn't fall away, the mere fact that that specific document is now being returned doesn't mean there's not a defective application - that remains in place - but after return and after the other steps have been taken, after the further particulars have been provided and at the form completed properly, then it becomes an application in terms of Section 21 (a) which meets the requirements of the Act and my submission is that is what happened here.

CHAIRPERSON: Because I heard you say that until the properly completed application comes to hand, there's no application and if that's the argument then there's no application.

MR STRYDOM: No, I still maintain that there's an application but a defective application.

CHAIRPERSON: I understand what you maintain but I want your submission.  Does it matter that the legislature here does not say the - does not talk of rejecting the application but rather it talks of retaining the application?