Amnesty Hearings — Johannesburg — 1999-02-04

MR SHANE: Morning Mr Chairman.  The matter I wish to call is that of Mzwake Buthelezi.  Mr Chairman there is no application in the normal form before you, an affidavit has been prepared which I believe you do have.

CHAIRPERSON: Well to be quite honest I haven't read it yet.

ADV STEENKAMP: Mr Chair this affidavit doesn't help you.  It doesn't explain what he did with the application form.  He says here
"... my application form is lost and I can give no explanation, save to say that officials of the TRC did take my form from me."

MR SHANE: With respect Mr Chairman, he says he signed the form at the school, Mapanzela School, and it was on the 10th of May 1997.

CHAIRPERSON: Despite what you want to submit, in paragraph 4 it doesn't say to whom he gave it, where he was when he gave it to this official, and when he gave it.

MR SHANE: Mr Chairman ...(indistinct)

INTERPRETER: The speaker's mike is not activated.

CHAIRPERSON: He does say in paragraph 3 where he was and when he signed it.  That's fine.  I'm not talking about where he signed it, or where he signed it, the application form is lost, and that's what we're trying to establish.  What happened to it.  Because we must also investigate whether this application was in fact made.  He planned, he says, I filled it in.  That's not the end of the matter.  Is there any explanation or

MR SHANE: Mr Chairman, in this, relating to this affidavit, I ask you to take into account the fact that we've heard evidence from an applicant previously, that this person, you heard evidence in fact from the applicant Victor Jeremiah Mambaso Nxomozulu, Muchacho.  He said under oath that this person was present, and he went as far as who the official is.
	With the greatest respect Mr Chairman, the applicant is before you.  If there's anything that needs to be supplemented to this affidavit, the applicant can, he'll be under oath and he can tell you who he gave it to.  I've mentioned an official of the TRC.  Now that, under oath he can say who that official was, if he remembers.  
	Whatever other information that you may require, with respect sir, I submit with the greatest respect can be obtained from him under oath while he's before you, just by questioning him, and that will complete everything you need to know sir, with the greatest respect.

CHAIRPERSON: And hat happens if we're not satisfied that the application was made?

MR SHANE: Mr Chairman if you're not satisfied that the application is made timeously, at the end of everything, then the law is quite clear on that.  Then he cannot be granted amnesty.  If he, the same as anyone else, if you get your application in too late, after 10 May 1997, you're not entitled to amnesty.  That's the rules and that's the law.  B
	But he, I submit Mr Chairman with the greatest respect, that  on this, and on what you can hear, and also bearing in mind what you've already heard from the other applicant, I would submit that on a balance of probabilities it's possible that his documents got lost and that loss was due to absolutely no act or omission on his part.

CHAIRPERSON: Are you done?

MR SHANE: On that aspect, yes.

CHAIRPERSON: Now answer the following questions for me.  In this event would you not agree that an application taken to the normal condonation should be made?  We haven't got his application form.  That's common cause.  You provide us with this affidavit, part of which makes an attempt, a flimsy attempt may I add, to explain why the original application form, if it did exist, is not here.  In short, he says he can't give an explanation, but this is what he did when he, after he completed the normal application form.  Now he says in paragraph 4
"...my application form is lost and I can give no explanation for this save to say that officials"
plural:
"...of the TRC did take my form from me."
Now, would you submit that that's sufficient for me even prima facie to allow this application to proceed?

MR SHANE: Mr Chairman I would say absolutely, because it's not only based on paragraph 4, with he greatest respect.

CHAIRPERSON: On what else is it based?

MR SHANE: ...(inaudible)

INTERPRETER: The speaker's mike is not activated.

CHAIRPERSON: ...(inaudible) an affidavit from those people attached to this?

MR SHANE: Mr Chairman, because first of all, I don't believe that the rules pertaining to these applications are enforced as stringently as they would be if it was before you in the High Court Mr Chairman, number one.  Number two, number two Mr Chairman, evidence under oath was given to you that the applicant was there.  That was evidence under oath.  All that would happen is a repeat.  If I got an affidavit from the other applicant, from the applicant who said it under oath,  would it merely be repeating what he said under oath.  Whatever he said to you was under oath.  That you've got to accept Mr Chairman.

CHAIRPERSON: Why, isn't there an affidavit from these officials who allegedly collected his form, attached to this application?

MR SHANE: Mr Chairman the, it is, I'll say it is an official, and I, that he can explain.  It's an official, that official is not available, I, on instructions from my client I didn't mention the name of the official, but if, I can tell you, if I must tell you, the official involved was Sally Sealy, that's my instruction.

CHAIRPERSON: Why is her name not mentioned here, and why hasn't she submitted to an affidavit?

MR SHANE: Right, firstly Mr Chairman the reason is, number one, Sally Sealy, I cannot get hold of her, she's not available.  That's number one.  I prepared this affidavit, the applicant was in my office late yesterday afternoon, I prepared the affidavit, he came this morning, and he signed, and it was interpreted to him again, hence the changes that were made.  Now I cannot get hold of Sally Sealy but whatever, I submit with the greatest respect Mr Chairman, that whatever the Commission wants to know, can be elicited from the applicant while he is under oath.
	I will submit with the greatest respect, that on this before you there is, on a balance of probabilities, at the very least on a balance of probabilities, you can find that he, on the deadline day, he signed his application for amnesty.  It was taken.  He was with numerous, all the applicants.  If you look all these applications before you ...(intervention)

CHAIRPERSON: You're repeating yourself now Mr Shane.  Can I ask you another question.  What would be your position, and the position of the proposed applicant, if a person to whom he, assuming he did fill in the form and hand it over to somebody, assuming that person was not an official of the TRC, what would then be the position?

MR SHANE: Mr Chairman if that was, I mean this is pure speculation, but if that was the case, I would have to try and find out who that person was, if he could tell me.

CHAIRPERSON: But you just said it was Ms Sally Sealy.  If she wasn't an official of the TRC at the time.  What would then be the position of the application?

MR SHANE: Mr Chairman I would still submit that if I could then establish who this person was, what was their capacity, I would then have to either bring that person before you or get that person to depose, but it would not, I would submit it would not render his submission invalid.

CHAIRPERSON: But then his application was not submitted, before the closing date.  That's the aim of my question.

MR SHANE: Well Mr Chairman we don't know that, because it might have been submitted and got lost en route.  We don't know.  I mean it's possible that it could have been given to the proper authorities, and between the authorities it got lost.  But Mr Chairman with the greatest respect I submit that before you, there is sufficient for you even if there is anything that needs further investigation or further information, it is obtainable from the applicant under oath.  He can ...(intervention)