Amnesty Hearings — Boksburg — 1999-02-23

CHAIRPERSON: Thank you.  Mr Claassen has made submissions relating to a decision which was taken by the Amnesty Committee on the 4th of September 1997, in terms of which the application of Mr Patumusi Joseph Magwaza, that is the third applicant, was refused.  His application for amnesty was refused.  That decision was based on an application which was submitted by Mr Magwaza dated the 2nd of May 1997, which was received by the Amnesty Committee on the 7th of May 1997.  In terms of that application, Mr Magwaza denied all guilt relating to this so called Zevenfontein incident.  It would therefore appear that the decision taken at that stage was justified.
	Thereafter in later September, the latter part of that September 1997, correspondence was entered into between the attorneys representing Mr Magwaza and the Amnesty Committee, which led to the subsequent filing of another application by the said applicant, Mr Magwaza, which was filed at the end of September 1997, in terms of which Mr Magwaza admitted taking part in the so called Zevenfontein incident.  And that second application was assigned a new registered number different from the first application.  That application was then investigated and persisted with until now when it has been set down for hearing. 
	Mr Claassen has submitted that because of those subsequent events that have taken place and the stance taken by the Amnesty Committee, that second application should be regard as being supplementary to the first application, and that the hearing should be proceeded with.  
	The fact remains that a decision was made on the 4th of September 1997 in terms of which Mr Magwaza's application was rejected.  Section 5(e) of Act No. 34 of 1995, that is the Promotion of National Unity and Reconciliation Act, specifically provides that the Commission shall not have the authority, or power, or jurisdiction, to review decisions of the Amnesty Committee.  We had a similar application at yesterday's hearing, when I stated as well that in our view that lack of authority to review decisions of the Amnesty Committee also applies to the Amnesty Committee itself.  So with regard to the decision that has already been made, the Amnesty Committee in our view if functus officio.  We cannot just ignore that decision as if it didn't exist, or if we set it aside we would be acting ultra vires.  If we were to proceed with this matter, and a different conclusion was to be arrived at at the end of the hearing, we would be left the absurd situation of having two conflicting decisions relating to that particular applicant.  
	It would seem that the only recourse available to that applicant would be to make application to the High Court, which court would have, or does have, the jurisdiction to review decisions of the Amnesty Committee.  If such a review were to take place, and if the applicant were successful in that application in that application, and I'm not suggesting that he would be or wouldn't be, but if he were, then he would be entitled to a hearing of his application, on his second application form.  
	We are therefore of the view that we just do not have the authority to disregard or set aside that previous decision and that we are functus officio and we will, we are, in the circumstances, unable to proceed with the application of Mr Magwaza today, in the light of the fact that his application has already been refused. 
	His application, the second one, is therefore removed from the roll of this hearing, and may be set down again should there be any development relating to the, well, should the decision to refuse his earlier application be set aside.
2ND APPLICATION OF MR MAGWAZA: AM NO 6447/97 REMOVED FROM ROLL

MR CLAASSEN: As the Commission pleases.