Amnesty Hearings — Sebokeng — 1998-07-14

CHAIRPERSON: Very well, yes, finish off your argument.  Do you have any further submission to make?

MR STRYDOM: No further submission.

CHAIRPERSON: Yes, alright.  It doesn't effect you does it?

MS PRETORIUS: It doesn't effect me, Chairperson.

CHAIRPERSON: It doesn't effect you.  Mr Malindi?

MR MALINDI: Chairperson I shall save myself with the argument presented by Mr Berger and I have nothing to add.

CHAIRPERSON: Mr Brink?

MR BRINK: I have no submissions to make.

CHAIRPERSON: Do you have any reply?

MR BERGER: Chairperson, the first point that was raised that I want to deal with is that Section 18 doesn't give the Minister the power to set conditions.  With respect, that is not correct, if one has a look at the definition of prescribed in the Act it says prescribed means prescribed by regulation under Section 40 and if one then turns to Section 40, it's the President, the President may make regulations prescribing anything required to be prescribed for the proper application of this Act.  The power is given to the President to prescribe the form and whatever form the President prescribes is given the power of statute and that is the form that has to be completed, that Section 18 says "you shall submit an application in the prescribed form and whatever conditions are contained in that prescribed form, you shall comply with."  That's what the regulations are there for, gives the President the power to legislate.  Delegated legislation I might add.
	My learned friend said that if there was - if there's no substantial compliance for the cut off date then the applications are not good enough and I agree with my learned friend on that, that is quite correct.  If there is no substantial compliance before the cut off date then the applications are defective and therefore invalid, that is quite correct.

CHAIRPERSON: And he went further and said the TRC has the power under Section 19 to call upon the applicant to rectify the difference.

MR BERGER: And we know that the TRC did not call upon the applicants to remedy the defects until after they had submitted fresh applications - in fact we know that the TRC never called upon the applicants to remedy the defect.  So as at 30 September 1997, the defects had not been remedied, that much is common cause, so therefore it must follow, on my learned friends argument, that as at 30 September 1997 those applications were invalid.
	My learned friend says that a letter from prison is an application within the meaning of the Act.  That, with respect, cannot possibly be correct because if that is so then one must ignore the provisions of Section 18 with regard to the prescribed form.
	My learned friend said that Section 19 (i) saves the day for the applicant.  I am prepared to accept for the purposes of this argument that any application includes the applications that were defective.  Section 19 (i) says that the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application.  Clearly, the clear meaning of those words is - you haven't completed your application properly, we are returning your application to you so that you can complete it properly and then submit it in terms of Section 19 (i) and submission of the application.  That submission and the submission in Section 18 must be in the prescribed form or request the applicant to provide such further particulars.  So Section 19 (i) also makes provision for further particulars but that is something after a valid application has been submitted.  If a valid application is not submitted, it gets returned to the applicant so that he can resubmit it.  It was pointed out to the applicants that their applications were defective - in fact it didn't even have to be pointed out to the applicants that their applications were defective, they knew it and that's why they said details to follow at a later stage and when they submitted the further details, it was done in the form of a fresh application.  Section 19 (i) in fact is totally against the applicants, on a proper reading of Section 19 (i) it doesn't save the day at all, in fact I would submit that the returning of the application to the applicant can mean only one thing, that the application is defective and it doesn't become a proper application until it is resubmitted in accordance with the requirements of Section 18 and to say that Section 19 (i) - the requirements of Section 19 (i) have been complied with and therefore Section 21 (a) has been satisfied, is with respect, losing sight of Section 18.  Section 18 is also a requirement of the Act - it too must be complied with.  Nothing was done in respect of the defective applications until after the cut off date, therefore at that date there were no proper applications before the Committee.  Whether or not the Committee accepted the applications, there would be argument about waiver.  With respect, whether or not the application is valid is a decision which must be taken by the Committee not by Advocate Mpshe, it's the Committee now who takes the decision whether or not the applications are valid.
	The fact that Section 19 doesn't expressly refer to Section 18 doesn't really take the matter any further.  Section 18 says you must submit an application in the prescribed form, Section 19 then talks about applications which have been submitted.  
	If the ordinary grammatical meaning is given to the word "any" then the ordinary grammatical meaning can likewise be given to the word "shall".
	Section 19 was designed to remedy defective applications, I'll accept that but then they must be remedied before 30 September 1997.  If they are not remedied they remain defective and as at the cut off date invalid.

CHAIRPERSON: If the application is defective and is received on the last day is that the end of the matter?

MR BERGER: If it's not substantially - if there's no substantial...[intervention]

CHAIRPERSON: If it is defective.

MR BERGER: Defective?

CHAIRPERSON: Yes, if it is defective.

MR BERGER: Yes and defective means no substantial compliance.  About illiterate people not being able to submit the applications, the applicants - I don't know whether they are illiterate - Mr Mthembu surely is not - but they had legal representation throughout, they've had legal representation since 1994.
	Question of balancing prejudice and that prejudice is evenly balanced - with respect, this is not a question of balancing prejudice.  The question is whether vested rights are being taken away.  The applicants had their rights and they had the power to preserve their rights.  Their own actions meant that they forfeit those rights.  The victims have not had the power to preserve their rights, they rely on the provisions of the Act.  Mr Khubeka's application can be supplemented now and he will then have a valid application before the Committee.  With respect, that highlights the absurdity of the argument of saying that the applications can be - the defectiveness can be cured at any stage.  The defectiveness cannot be cured at any stage - there must be valid applications as at per cut off date otherwise Mr Khubeka could come in ten years time and say I want to now give you my story and the Committee would be bound to hear him.  That can't possibly be correct.
	And finally, as far as the purpose and spirit of the Act is concerned, yes, the purpose of the Act is to get at the truth but the purpose of the Act is also to set limits so that there can be justice between the parties.  The applicants had their rights, they forfeited them, the victims have their rights and they stand on those rights.  We would ask that the applications be dismissed for want of compliance of Section 21 (a).  Thank you.

CHAIRPERSON: We'll take the lunch adjournment now and we'll come back at two o'clock and give a ruling.