Amnesty Hearings — Johannesburg — 1999-02-18

MR MASHABANE: Just before I can answer direct to the question posed to me, I would address the Committee as well as the intention of the writer is concerned, when he completed or when she filled the form.

CHAIRPERSON: Well, isn't that the issue?  He may have intended a lot of things, but we are bound by what is contained in the application form.  Like I indicated, we will take a broad view of it and interpret it as broadly as we can, but where the issue in question is clearly not one which has been mentioned or could be interpreted as falling under one that has been mentioned, then it amounts to a new application.

MR MASHABANE: Mr Chairman, I would submit that it does not amount to a new application.  It is - maybe what the applicant should have done in the circumstances is to ask the Committee to file a supplementary affidavit, wherein this other issues which referred, because clearly on page 119 where he mentioned of the offences which he is seeking amnesty on, he does mention firearm as one of them.

CHAIRPERSON: Theft of firearm?

MR MASHABANE: Theft of firearm, indeed.

CHAIRPERSON: What about robbery?

MR MASHABANE: Robbery ...

CHAIRPERSON: Most of the list which he mentions today, includes robbery.

MR MASHABANE: That I submit Mr Chairman, would fall if one is looking - like for example the stealing of a motor vehicle, the writer thereof, what did she, what was her intention when she referred to, when she put on those words, and legally speaking ...

CHAIRPERSON: When you fill in a passport application, surely what is contained therein is of relevance, it is not what the applicant intended?  If you misquote the colour of your eyes, they are not going to ask you whether you intended to say it was blue instead of brown, you have written brown.  Isn't this a similar issue, a similar situation?

MR MASHABANE: Indeed Mr Chairman, it is a similar situation and if I may, though I know that this Committee, they don't work as Committees where you can refer to decisions which were taken to other Committees which are like this one, the similar question was posed by the applicant in the Boipatong massacre where the Honourable Mr Justice Nqobo was sitting and there was a legal representative who was acting for the victims, and he objected to that on the grounds that they did not include all the offences which the applicant was seeking.
	In his ruling, his Honourable Mr Nqobo said that it suffices only if the applicant shows his intention to apply before the deadline, and the other information can be furnished on the day of the hearing.

CHAIRPERSON: And he was correct in saying so.  That is why we are saying that when he talks of an incident for example, whatever happened at Kliprivier police station, I and this Committee are happy to include all those incidental offences that occurred at Kliprivier police station, despite it not being mentioned because there is a clear intention that I am going to own up to everything that occurred at Kliprivier police station during that incident.
	That is what he meant, even if the application is silent, there is a clear intention to deal with that incident lock stock and barrel, with all the possible offences.  But where there is no suggestion even, or hint, of a particular incident, identifiable incident, then we are on a different footing, isn't it?

MR MASHABANE: Mr Chairman, I appreciate the problem which is before this Committee.

CHAIRPERSON: (Microphone not on)

MR MASHABANE: Yes, indeed Mr Chairman, and in dealing with the problem, I would ask the Honourable Chairman, to permit us to lead viva voce evidence as far as the writer of the statement is concerned.

CHAIRPERSON: That is why I asked you in chambers to make a legal decision and advise your client.  I can't stop him from testifying.  If he testifies on incidents which the Committee is of the view, doesn't fall within the application, all we do is refuse.  We can do that.
	This is an attempt to avoid people being embarrassed, time wasting, wasting of money and a cluttering of the record.  Where there is clear indication, where it can be clearly seen by way of logic, that an applicant for some unfortunate reason even, is not entitled to make the application, or is not likely to attain amnesty, then I think the advise should be given.
	Like I say he can come and testify here about what he wants to, all we do is that if we are convinced that it is irrelevant, then we will ignore it.  That is why I asked you to look at the matter and make a legal decision, or logical decision.  I am in your hands, I mean I am not going to make a ruling or give a judgement on what you have said.  If you tell me you want to lead him on all these offences, and you may persuade us otherwise, then so be it.

MR MASHABANE: Mr Chairman, that is the route that I would ask for from the Committee, to lead on that evidence, because here clearly, we have to check the holistic of the statement and the intention thereof, under which this statement was made.

CHAIRPERSON: We've got to look at the statement, you are talking about extrinsic evidence.  I may refer you to the issue also in this bundle, supplement 2, page 1.  If you notice, you compare that with page 119, they talk about murder and stolen vehicles, stolen vehicles, possession of illegal firearms, Kliprivier police station, etc.
	There once again, he clearly sets out what he was referring to.  In basic terms, he is referring to all the incidents related to the Dawn Park issue from the time they went to pick up the firearms, and secondly he refers to the Kliprivier police station incident.  I just point it out to you.
	If you want to proceed, we would look at the application also.  If you want to, then proceed.

ADV STEENKAMP: Mr Chairman, may I, I know it is not my opportunity, but I may just bring it under your attention, if you decide to listen to the other applications as well, there is the question of Section 19(4) requirements.
	If applicant's victims are not notified, clearly, as far as I can understand Section 19(4), those applications cannot be dealt with.  Thank you sir.

CHAIRPERSON: I tried to avoid even having to say that.  Like I have said, I see the Dawn Park incident and all attended offences as having been mentioned there and the Kliprivier incident.  If you want to continue with the other issues that are separate from those two basic incidents, then over and above that, I mean clearly the application was directed at those two incidents only, and people effected by those, there have been attempts to inform them in terms of the law.
	It may not be proper to proceed with those applications in any case.  And that is not the fault of those officials of the TRC, they have interpreted what is written here.  I am in your hands and there is still the issue that you haven't testified on, being the Kliprivier incident.  That we are happy to listen to, but I am in your hands.
	If the applicant wants to testify on all those other incidents as well, be my guest then.

ADV GCABASHE: Mr Mashabane, I was just going to add that if there is a supplementary form that arrived at the TRC before the cut off date, that has the detail of all these other matters, that would assist us.  If you had information of that nature.  We do not have it obviously, we are looking at the bundles that we have been given.
	If your client knows of such information that was filed before the 10th of May 1997, then these are matters that will be properly before us.  I don't know if you might be able to solicit that type of information from either client or other sources.

CHAIRPERSON: Wasn't it the 12th of December?

ADV GCABASHE: The cut off date for submissions?

CHAIRPERSON: The 10th of May was incidents.