Amnesty Hearings — Sebokeng — 1998-07-14

MR BERGER: Well, if we take the applications which were ultimately submitted, the fresh applications in this case, they were substantially completed and yet the Committee still requested a whole host of further particulars which were relevant for the purposes of this application.

MR LAX: But that was not in respect of Section 19 (i), those further particulars.  Those further particulars were in terms of the subsequent section, I'll give you the exact reference if you like.  Sorry, I've just lost it, I'll give it to you immediately.

MR BRINK: It's not 19.3, (a)2?

MR LAX: That's correct, sorry, it's 19.3 not 20.3, I beg your pardon.  So the Act contemplates the situation where first the forms are submitted, then a number of things can happen in terms of having them completed including further particulars.  Once that process is finished, then it's before the Committee so to speak and then the Committee may investigate the matter and in that investigation process, then ask further questions and further particulars, are you with me?

MR BERGER: Yes I am with you.

MR LAX: So, now on what you've postulated to us, 19 (i) then becomes superfluous and that's what I'm asking you, is how can - could you address us on why would they have 19 (i) if it didn't relate to receipt of defective applications?

MR BERGER: Mr Lax and the Committee, 19.3 (a) 2 is not properly construed the Committee's request for further particulars.  The Committee's request for further particulars is indeed in terms of Section 19 (i) and I'll explain why.  My learned friend, Mr Brink, with respect is not correct because 19.2 says once you've got the application then the Committee can make certain enquiries then 3 says "After such an investigation, the Committee may inform the applicant that the application judged on the particulars or further particulars contained in the applications, or provided by the applicant or revealed as a result of enquiries made by the Committee, if any, does not relate to an Act associated with a political objective.  So the Committee then writes back to the applicant and says "Your application, together with the further particulars which you have supplied to us, does not reveal an act associated with a political objective."  Then the applicant is afforded a further opportunity to make a further submission as to why the act should be regarded as an act associated with a political objective and then, and 3 - then the Committee decides whether the application, judged on the particulars referred to in sub-paragraph 1, that's the application plus the further particulars, and in such further submission relates to an act associated with a political objective and if it is satisfied that the application does not relate to such an act in the absence of the applicant and without holding a hearing refused the application and informed the applicant accordingly.  So it's, with respect not, not the further particulars, it's the Committee forming a view which was not done in this case as far as I know, that the applications as submitted do not disclose acts associated with a political objective and then say "you've now got one further opportunity to convince us that it is an act associated with a political objective" and that's why it's so important that the original application be under oath and be substantially complete to the extent that the applicant must say "these are the acts for which I seek amnesty - this is what I did" and the applicants don't do that and they definitely don't do it under oath, all they do is give a case number.  If one managed to relate that back to the Boipatong criminal trial because no court was given at that state, but even if one says alright they were referring to the Boipatong trial, they are asked in that document "which charges were you convicted of?" - "details to follow" and if one reads the 3000 pages of the Boipatong record, there's a complete denial.  So, at this stage, one doesn't know what act the applicants are applying for amnesty for.  Beyond that, one doesn't know what the political objective is because if one reads the Boipatong criminal trial there is no mention at all because of the denial, there is no mention of a political objective.  So the very basic fundamentals of an Amnesty Application are missing and that's why we submit that there hasn't been any compliance, not even substantial compliance and we set out in paragraphs 13.1 through to 13.6 what we submit are the fundamental particulars which ought to be in an amnesty application.  It's correct that, that then shuts the door on the applicants but this is a situation entirely of the applicants own making.  If you will just bear with me for a moment.
	Chairperson and Members of the Committee, I have tried to deal with as many points as possible which might come up in the argument of my learned friend but at this point I'll rest and save the rest for reply.

CHAIRPERSON: Thank you.  Yes, Mr Strydom?

MR STRYDOM: Thank you, Chairperson.  In my heads of argument, I started by setting out the facts.  After listening to my learned friend's argument, there's no real dispute as far as these facts are concerned so I'm not going to repeat them.  I would like to start my argument on page 8 of my heads of argument, but before I deal with that, my learned friend made the submission that the applications that were filed during February 1998 were fresh applications.  Now I cannot agree with submission.  The fact of the matter, applications were made before the original cut off date being the 10th May 1997 and Amnesty numbers were given to these applications so he is not correct.  The fact that they were not complete does not mean they weren't applications.  They were applications and therefore what followed thereafter was actually further particulars, more detailed applications and although the standard form or the Form 1 was used when further details were given, that does not mean that what was provided was a fresh application.  The point I'm making is that there were applications before the TRC at that stage already.
	Mr Chairman, in my heads of argument, I firstly argue on the basis of Section 18 standing on it's own and what I'm saying is that if one looks at Section 18, there is a reference to "shall".  Now immediately there's a reference in an Act to the word "shall" the initial idea is that that is a preemptory reference.  My submission is that, not in all cases, where the word "shall' is being used can it be argued that it's preemptory, my submission is that in fact in this instance, that word "shall" refers more to the time period and the cut off date and I would submit that the cut off date and the time period is definitely preemptory to the extent that even substantial compliance would not be sufficient.  So an application should be launched before the cut off date but on interpretation I would submit that the second portion, although the word "shall" may have reference to submit such an application to the Commission in the prescribed form, that that is merely a directory and not preemptory and ....[intervention]

CHAIRPERSON: Well, let me ask you this, what Section 18 does is to say that the Minister - well, that the application shall be submitted - shall submit an application to the - in the prescribed form.  Does that section give the Minister the power to impose additional requirements for an Application for Amnesty?

MR STRYDOM: I would submit no, it doesn't give a Minister additional powers, that's my submission but let me just have a look at the section again.

CHAIRPERSON: In other words, apart from those that are in there, because all that the Act does, it simply says a person who wishes to apply for amnesty shall submit an application to the Amnesty Committee in the prescribed form.

MR STRYDOM: It does not legislate further powers to the Minister.