Amnesty Hearings — Boksburg — 1999-02-23

MS LOCKHAT: No, definitely not Chairperson.

MR CLAASSEN: I'm sorry Mr Chair, it appears to be my mistake, indeed as Mr Lax pointed out it appears that it was sent to Mr van der Merwe by Mr Coetzee from the TRC.  Now what preceded this, or what led to this fax being sent, unfortunately this is as far as my, from the file, I can ascertain ...(intervention)

CHAIRPERSON: It would seem that the designation advocate might be a mistake, because the fax starts,
"...We refer to your telefax dated 17 September."
Which is this letter from van der Westhuizen.  Is there, well there's no van der Merwe in van der Westhuizen and Associates, is there?

MR CLAASSEN: Not that I'm aware of.

CHAIRPERSON: Well in any event ...(indistinct)

MR CLAASSEN: Thank you Mr Chair.  So it appears that there have been some dealings trying to get past this problem, or the fact that the first application, as I referred to, have been turned down.
	Mr Chair if I might just get to page or A5 of the bundle, this is now sent from, I see it's signed by Ms Hoskins of the, and its from the TRC to Ms van der Westhuizen's firm.  I think from the first paragraph it's very clear, I think we, this is what the, the conclusion the Committee also came to yesterday.  But there is an interesting, just maybe to be noted, that the amnesty application referred to is the one, the 6447/97 which, in the bundle, is indeed the applicant's first application.  And this application is deemed functus officio and as the Committee rightly pointed out yesterday in Mr Mbatha's instance, it could be taken on review.  The letter continues saying that, however, another application was submitted on the 30th of September 1997, and was registered under the registration umber 6003/97.  And if may, Mr Chair, at page 58 of the bundle, this appears to be the second application of the applicant.  And if I might, just the next sentence, it is stated here that this file is regarded as hearable and should be supplemented before the hearing.  It follows, saying that the matter has not been scheduled for hearing, and we have no trace, have to trace all co-perpetrators before setting this matter down in addition to conducting a proper investigation into this matter.  And it just says if you are available, able to assist us they would like to be informed.  
	Mr Chair, what I'd like to get at, especially in view of the question that they conclude this letter with, that further investigations need to be done, and all co-perpetrators need to be found.  I think the fact that this matter is in the bundle which is before this Committee today, it is my humble submission that this per se is maybe sufficient proof that the matter has, on the face value, has been investigated, and it appears that, from the second application, it translates or relates directly to the incident the other applicants are before this Committee today.  Mr Chair I believe this obviously leaves us with the question, the Committee with the question still, that it appears that a decision had been taken on a certain application, and a second application had been submitted.  Mr Chair one can't get past, as you clearly pointed out yesterday, the provisions of Section 5(e) of this particular Act, but if I may, in the Act, refer to Section 19 and the powers of the Committee.  Mr Chair I think specifically my line of reasoning would be provided this second application is considered to be further particulars or an application supplementing the first one, that the Committee shall investigate, and specifically point 2 of section 19, Section 2, 
"...the Committee shall investigate the application and make such enquiries as deemed necessary."
	Mr Chair I think that that might just be the situation that we are sitting with today.  Surely there might be a dilemma in the question was a decision taken and why was the second affidavit or the second application allowed to be entertained.  Mr Chair if I might just conclude by saying that it is my submission that, in view of the fact that the Amnesty Committee has, or the TRC has, up to this stage, indicated that apparently the second one is a hearable matter, and deemed it to be, I presume, different enough from the first one, that I would respectfully request this Committee to hear this matter and at least give Mr Magwaza the benefit of the doubt, and in that this matter might be entertained.  Thank you Mr Chair.

CHAIRPERSON: Mr Draht do you have any submissions?

MR DRAHT: No Mr Chairperson.

CHAIRPERSON: Mr Cachalia do you have any submissions?

AZHAR CACHALIA: Chair no thank you, except to just state that I think the matter is a simple matter of being functus officio as you had decided yesterday.  I say that is the only remedy that he has in the circumstances, rightly or wrongly, it appears that the second application was received after the decision was made on the 4th of September and therefore at that time it would be, the Committee was already functus officio.  Thank you, sir.

CHAIRPERSON: Ms Lockhat?

UNKNOWN: Chairperson I agree with my learned colleague Mr Cachalia.  That is indeed the position of the Commission.  We are functus officio.  The proviso to Section 5(e) of the Act bars the TRC from reviewing a decision of the Committee, and the facts are that the application was before the Amnesty Committee, the first application, and it was,
the decision was valid and in good faith, and the applicant has a recourse to take the matter on review and use the annexures submitted today as evidence in his review application.  As far as the Commission is concerned we are functus officio.

CHAIRPERSON: Mr Claassen any reply?

MR CLAASSEN: Thank you Mr Chair.  Maybe just a single remark to what Ms Lockhat submitted.  Specifically relating to the fact that it obviously cannot be denied that an application had been, was dealt with, and then only the second application was sent to the TRC.  Mr Chair, just once again based on the correspondence, I think maybe, I wouldn't say the impression was created, but I think the application sent to the TRC was quite clear that something further, a further application, might follow, and which might have prompted the TRC to say, or come to the conclusion that further evidence should be heard, or further affidavits might be accepted, and perhaps broadening this initial application, but that would be it from me.  Thank you Mr Chair.