Amnesty Hearings — Johannesburg — 1999-02-08

CHAIRPERSON: She handed a box, Mr Shane.  How do we know that that box contained that application?

MR SHANE: Mr Chairman, if that is viewing it restrictively, I refer you to paragraph 5.  In paragraph 5, Sally Sealy says I am surprised that this application form is missing as I took this form to the TRC offices at the Sanlam Centre, Johannesburg, at quarter to twelve on the 10th of May, along with many others, in a photocopy paper box.

CHAIRPERSON: I am sure she did it, yes.  How do we know.

MR SHANE: Mr Chairman, if you are looking at it restrictively and if you are, there is someone who says this is not true, that is a different story, but Mr Chairman, there is nothing, I submit that it is quite clear that this is the same box she was talking about.
	This was put in a box, she brought the box to, she gave the box to Ndlozi, a TRC official and in that box, was Mzwake Buthelezi's application form.

CHAIRPERSON: Does she say so?

MR SHANE: Well, she put it in the box.  Mr Chairman, I mean if necessary, Sally Sealy is outside, I can if you like, I could call her.  She was outside a few minutes ago.

CHAIRPERSON: Mr Shane, Mr Shane, you are not going to treat this hearing like an informal hearing.

MR SHANE: No, no sir, I ...

CHAIRPERSON: Now listen to me.  We were talking about the scenario that you pictured, pen pictured here about the flying away with the ill-wind of this application form on the top of the box.  What would be the position of the applicant then, that is where we were.

MR SHANE: Right, if his form when it was being loaded in the car or something, got lost, blown away or whatever, I would submit Mr Chairman, with the greatest respect, it was given to an official of the TRC and it was given before the deadline on the 27th of May.

CHAIRPERSON: If it was blown away, then it wasn't given to the TRC.

MR SHANE: No, no sir, I am saying if it was given, the box was given, it was put in a box, it was given to Mr George Ndlozi, it was in the box.  George Ndlozi, being a TRC official, I submit that is sufficient.

CHAIRPERSON: Are we able to say that that application form completed, that application form that we are talking about, was in fact in the box at the time that box was handed over to the TRC official?

MR SHANE: I submit yes, sir.

CHAIRPERSON: How can you say that?

MR SHANE: Well sir, you know, at the time with respect, Sally Sealy was present, she was dealing with not one, numerous applications.
	That is the procedure she adopted.  No one can expect them to know about each individual piece of paper that they got.  There were many, and the applicant, well Mzwake Buthelezi's was there, together with numerous others.  His happens to be missing, like some others got missing.  It is human error, it could have been on the part of Ndlozi, I submit that Ndlozi did receive it with the others.

CHAIRPERSON: Why does it have to be the fault of the TRC?  Why is it only, the possibility only in respect of the TRC officials?

MR SHANE: Oh no, Mr Chairman, one cannot exclusively put the blame on the TRC, you cannot exclusively put the blame on the TRC, it is also possible, the possibility exists, but remember Mr Chairman, it is only a possibility, the possibility exists that maybe this form, maybe it dropped out of Sally Sealy's hands before she got to Mr Ndlozi.  That is a possibility.
	One will never know Mr Chairman.

CHAIRPERSON: Precisely.

MR SHANE: But because Mr Chairman, and I mean Sally Sealy can't say that that is impossible that that happened.  Do you have to look at it because that might have happened, what you've got before you, is not sufficient to have this application heard?

CHAIRPERSON: Show me this clause that empowers me to do that.

MR SHANE: Mr Chairman, with respect, my submission with respect, the greatest respect is that you have power to do anything that is in the interest of the promotion of national unity and reconciliation.
	There is no clause.

CHAIRPERSON: Where do you see that, where do you see that?

MR SHANE: Well Mr Chairman, that is the purpose of the Commission, to promote, I cannot give you the law, there is no Act that empowers you to do so.

CHAIRPERSON: Now let me tell you something.  I am going to adjourn after I make these comments and I want you to go and consider it at home.
	Section 19 says the Committee shall consider applications for amnesty, not amnesty for enrolment, applications for amnesty, that is Section 19(1).
	Subsection (2), the Committee shall investigate the application and make such enquiries as it may deem necessary.  Subsection (3), after the investigation, the Committee may inform the applicant of the application, etc, afford the applicant an opportunity to make further submissions, decide whether the application, judged on its particulars referred to above, relates to an act associated with a political objective.  And so it goes on.

MR SHANE: And it only deals with applicants Mr Chairman, we don't have an applicant before you?

CHAIRPERSON: And it only deals with applications, and neither do I have an application before me.

MR SHANE: That is my problem Mr Chairman, and that is why I have ...

CHAIRPERSON: At least we have progressed, it is your problem, not mine.

MR SHANE: Well, it is my client's problem Mr Chairman, he wanted, he is concerned about it and he wants his application for amnesty to be heard.

CHAIRPERSON: You know Mr Shane, on Thursday when we adjourned, we wasted a day on Friday, we didn't sit, okay.  We all agreed, including you that today would be the day you would consider your position and then finalise this.

MR SHANE: Yes.

CHAIRPERSON: You come with additional affidavits that don't help us at all.  You still haven't satisfied me, these affidavits haven't satisfied me one bit, that this application form completed was in the hands of the TRC, either by way of agency or otherwise.
	That was the test.  Now you come and ask me to overlook that and listen to the application.  If I must make a decision like that, it carries a lot of ramifications and implications.  I am not empowered to do that.

MR SHANE: I understand that Mr Chairman, I am not asking you to overlook it, I am asking you to find that on the papers before you, on a balance of probabilities, obviously it can never be beyond reasonable doubt, but I am asking you to find that on the papers before you Mr Chairman, that on a balance of probabilities, his application was with the TRC, was handed to an official of the TRC.  The rest as to what could have happened to it, is pure speculation.  I will concede there is a possibility, there is a possibility that maybe his application didn't get to the hands or into the control of a TRC official, there is that possibility.
	On a balance of probabilities, what you've got before you, you can find that his application was handed in timeously to the TRC or to a TRC official, on a balance of probabilities.

CHAIRPERSON: It is not that easy Mr Shane, because you argue from one point of view that because it was not processed, and because he attended this gathering where applications were made, the other applicants' applications were processed, therefore I can safely draw the conclusion that your client, or the applicant in this case, his application must have landed in the hands of the TRC.  That is fine, that is one view.
	The other view also is that because all the others were processed, why wasn't yours or your client's, if it was there?

MR SHANE: Mr Chairman, that the TRC is run by human beings, and human error creeps into everything.  It could be human error.

CHAIRPERSON: I dare say that your client was also assisted by human beings?