Amnesty Hearings — Johannesburg — 1999-02-04

CHAIRPERSON: You see Mr Shane, you can't get the application before us through the back door.  We've got to be satisfied that there's an application, which is hearable, which falls under the ambit of the powers and functions of the TRC Amnesty Committee.  Whatever you want me to find out, or the Committee to find out, from the applicant himself, or the proposed applicant, would only be obtained once he's taken the oath, and then in some strange way the application is before us.  It's putting the cart before the horse.

MR SHANE: With respect Mr Chairman, if, after ...(intervention)

CHAIRPERSON: A proper affidavit, which would set out a prima facia case would certainly have been in his favour.  The flimsy explanation, or attempted explanation in paragraph 4 doesn't help him.  And that you submit that I must, this Committee must take into cognisance what some other applicant had said, I don't feel, and I haven't discussed it with my colleagues yes, I don't think carries much water.  Because when that person testified he was not testifying on this application to prove that in fact an application was made.  Understand?

MR SHANE: I do Mr Chairman.

CHAIRPERSON: I don't find it plausible that anybody was unable to obtain an affidavit from an official or officials who allegedly were members of the TRC staff at the time, to support this affidavit.

MR SHANE: Mr Chairman, we have, I consulted with the applicant yesterday.  I prepared an affidavit last night.  The applicant signed the affidavit this morning.  There were alterations.  Number one, the alterations are in my hand, they haven't been changed on the word processor, in order to save time.  I have to, if Mr Chairman you want further evidence, I have to look for it from the so called officials of the TRC, but Mr Chairman in my consultation with the applicant, this is the explanation he has given me after lengthy consultation with him.  This is all he could tell me.  I am, I cannot and certainly will not put words in his mouth and tell him what to say.  Obviously that is not my task.  This is all ...(intervention)

CHAIRPERSON: Did it cross your mind, did it cross your mind to try to find out who these officials were?

MR SHANE: Mr Chairman I did, I told you who the official is.  I told you.  I knew the official but I didn't' put their name, I called that person an official of the TRC.

CHAIRPERSON: Why would you not have put her name in this affidavit?

MR SHANE: Mr Chairman because ...(intervention)

CHAIRPERSON: ...(inaudible) lend credence to the allegation that he did give it over to an official.

MR SHANE: Mr Chairman the reason is because first of all, if I mention a name, in the normal course, one should - If a name is mentioned that then should strengthen the affidavit by a confirming affidavit.  Right.  Mr Chairman this person is not available.  I don't want to, I can come and ask you now Mr Chairman for this matter to adjourn to next week to give me an opportunity to find this - that is the only solution I've got then, and I thought it would, we would be able to run, but if that is the case then Mr Chairman I will have to, further to this affidavit before you, get another affidavit from that official explaining the situation.  It's difficult to get hold of that official.  I've tried to get hold of the official.  I've left messages on her voice mail.  That is my situation.  I can then suggest let this matter stand down 'til next week and I'll make every endeavour to get hold of that official.  If I can't get hold of this official Mr Chairman then we're going to be in the same position as we are today.  I will argue, but I mean I could take that opportunity and I suppose given a few more days maybe I will get her.

CHAIRPERSON: Let me explain something to you.  This process, the Amnesty Committee, the Truth and Reconciliation process under the Commission, is not an informal process.  In my view it must rank as one of the most important processes in the history of this country.  The eyes of many people across the  world is on this process.  It is under the microscope, and we can't afford to be as informal as you suggest we must be in making decisions here.
	The problem I do have, and this I've discussed with my colleagues, is that we know that there was a process to submit application forms to the TRC office.  Most, if not all, were in fact submitted, including one applicant with two different names.  You tell us now there is an applicant, your client, who says he also did fill in a form and handed it to, and I quote his affidavit:
"...officials of the TRC."
Be it many or one is irrelevant.  We must satisfy ourselves that a proper application is before us.  There is no such application yet.  You and your client, or your client with your assistance, to persuade us and satisfy us that in fact he did make the application, the application is not before us because of some fault within the system, administrative system of the TRC.  Failing that then I don't think we do have an application.
	Now I've said what I think I need to say to you to put you in the proper picture.  I'm not going to advise you or tell you what to do next.  If you want to apply for certain things than do so, we will consider it.

MR SHANE: Mr Chairman if I may just reply.  Sir this what you say is quite correct, this is very important, the amnesty proceeding, and the spotlight is on it, but Mr Chairman I ask you to consider the following.  You are dealing here with the promotion of national, of unity and reconciliation, and I submit with the greatest respect that if the rules are going to be completely restrictively applied, and it is, I submit your suggestions are making the rules extremely restrictive, I submit that maybe this will have an adverse bearing on achieving the desired reconciliation and unity, as what, that's what this Act is all for.  I submit that it should be liberally applied, not restrictively applied.  	I submit with the greatest respect Mr Chairman that in a circumstance like this, where it is probable, and I submit that on this it's not for the applicant to show you beyond doubt that he put an application in and it got lost.  He's not going to be able to prove to you beyond any reasonable doubt.  There's always going to be doubts Mr Chairman, I don't think that is the test.  I think that if it's restrictively applied, he's going to fail in that, but I don't believe that you have to apply it restrictively.  I think the opposite applies Mr Chairman, and if, in the circumstances, you see a way that it is possible that his application form did get lost, and he can give the explanation that he can, because he can't give more than what he can.  What is here Mr Chairman, what is before you, is all that we're going to get from this applicant.  He cannot give me any more information, it was canvassed from him.  Save to tell you Sally Sealy was the person involved.  He's not going to be able to, he's not even going to be able to give you the more or less, the time that he signed his application and gave it to - Mr Chairman I submit it's not, it shouldn't be restrictively applied.
	I don't know, maybe  my learned friend Mr Steenkamp can have some comments on this, I don't know if he could assist you Mr Chairman, but I submit that you shouldn't be restrictively, shouldn't be restrictive rules in this regard.

CHAIRPERSON: ...(inaudible) point out to you, if our roles were reversed, then you could ask Mr Steenkamp, I'm asking you.  Is that the best you can submit.  I've put my problem to you, you don't seem to be ...(intervention)