Amnesty Hearings — Sebokeng — 1998-07-14

MR BERGER: It is correct, if I could address this problem of the Committee, it is correct that the use of the word "any" could mean, could be restricted to mean any valid application or it could mean any application however defective.  Because of the argument which I make later, the submission is that it means a valid application because of vested rights which are at play but even if I am wrong on that, even if "any" means literally anything, even a scrap piece of paper with a name saying "I'm applying for Amnesty." - even if it includes that and I'm quite happy to argue it on that basis, our submission is that the requirements of Section 18 have not been satisfied.  If "any" means "any" in it's widest possible sense then an application comes into the Committee, as these applications did, then the Committee can return the application and say "your application is defective, re-submit" if the word and submission of the application means re-submission, I'm happy to argue it on that basis as well - re-submit you application.  The Committee did not do that.  The reason why I would venture why the Committee did not do that is because an undertaking was given in the covering letter attached to my learned friends' heads of argument which said that we will provide further details at a later stage and indeed the further details which were provided were in the form of fresh applications which came in February 1998.  So "any" application can mean a defective application but then the question remains is - has Section 18 been satisfied?
	Now Section 18, Members of the Committee, says "Any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within a certain time period submit such an application to the Commission in the prescribed form."  My learned friend argues at page 12 of his heads of argument that the word "shall" in Section 18 refers to the time period and not to the prescribed form.  I submit that that is clearly wrong if one de-constructs the wording of Section 18 it is quite clear that the word "shall" governs both the time period and the submission of the application because if the word "shall" doesn't govern the submission of the application, the section would read "any person who wishes to apply for amnesty - something - submit an application to the Committee in the prescribed form."  That "shall" as a matter of English grammar can only be read as governing both the time period as well as the submission of an application, it cannot be read in grammar any other way other than that.
	Now, the prescribed form was promulgated, some forms seem to have six pages and some forms seem to have four pages but I would suggest that just depends on the printer that was available at the time, but the contents is identical.  The regulation promulgated in terms of the section makes it clear again in Section 2.1 that it - well it says "an application for amnesty in terms of Section 18 of the Act "shall" be made in the form of form 1 of the annexure.  
	Our submission is that the purpose of the form is to solicit information to determine whether prima facie an applicant is entitled for amnesty and there are certain requirements set out in the form.  One is that is must be sworn to or solemnly affirmed before a Commissioner of Oaths, that's at the top of the form and at the bottom of the form there's place for a deponent to sign and a Commissioner of Oaths.  It's suggested by my learned friend in his heads of argument that deponent doesn't mean deponent, anybody can sign on behalf of a deponent but, with respect, that cannot be right when the legislature requires a document to be submitted under oath such as an affidavit.  If there's an affidavit that has to be submitted in certain proceedings, the deponent to the affidavit must be the deponent who has the knowledge contained in that affidavit.  If I want to buy a house and I have to depose to an affidavit, I personally must depose to that affidavit to state that certain facts are true and correct.

CHAIRPERSON: What happens to a perpetrator who since the killing that he's been involved in has since turned blind and lost both his hands?

MR BERGER: Then he goes with an assistant to a Commissioner of Oaths, he is asked do you swear that the contents...[intervention]

CHAIRPERSON: Will he sign?

MR BERGER: Will he sign?

CHAIRPERSON: That's what I'm asking you.

MR BERGER: If he is totally unable to make any mark with his feet or with his mouth or anything?

CHAIRPERSON: He's lost both hands and he is blind.

MR BERGER: Either he will make a mark some other way or the person mandated by him will make a mark in front of a Commissioner of Oaths and it will be recorded that this mark or this signature was made in my presence before a Commissioner of Oaths, the deponent acknowledging that the person who makes the sign is mandated to do so.  In other words the deponent to the affidavit, the person whose affidavit it really is, will have to indicate in some way to the Commissioner of Oaths, that this is really his affidavit but he is unable to sign and therefore someone is signing on his behalf.

CHAIRPERSON: I want to illustrate to you that then there were the circumstances under which a person, although he may well the perpetrator, for whatever reason he may not be able to sign but detract from the fact that that application is made by that person.

MR BERGER: But Chairperson, that is a far cry from what has happened in this case.

CHAIRPERSON: Well it's to illustrate the proposition, what happened in this is a different matter.

MR BERGER: But Chairperson, the point is that it has to be affirmed to before a Commissioner of Oaths and so therefore even the blind person with no hands has to appear before the Commissioner of Oaths, that's the point that I'm making.
	Now, the letter that came ...[intervention]

MR LAX: Sorry, Mr Berger, I was just confirming - this is totally beside the point but the normal procedure in this situation put to you would be that the Commissioner of Oaths themselves would actually record a special attestation clause saying they have spoken to the person, they confirm that although there's no mark, he confirms the contents of the affidavit.

MR BERGER: Yes, he would have to be present?

MR LAX: Yes, no obviously.

MR BERGER: The covering letter which enclosed the applications in May 1997 is purportedly an application on behalf of seventeen people.  It says there that you will notice that only the first and last pages of the application form have been completed meaningfully and the answers to the rest - paragraphs 8 - 12, all read "will be submitted at a later stage.  The reason for this is that we are not in a position to contact our clients personally before the cut off date.  That is also the reason why the forms have not been attested to, we hope however to provide the outstanding information to you "deesdags"  Within a couple of days, I assume that means.

MR LAX: It just means in due course.