MR SHANE: Morning Mr Chairman. The matter I wish to call is that of Mzwake Buthelezi. Mr Chairman there is no application in the normal form before you, an affidavit has been prepared which I believe you do have.
CHAIRPERSON: Well to be quite honest I haven’t read it yet.
ADV STEENKAMP: Mr Chair this affidavit doesn’t help you. It doesn’t explain what he did with the application form. He says here
"... my application form is lost and I can give no explanation, save to say that officials of the TRC did take my form from me."
MR SHANE: With respect Mr Chairman, he says he signed the form at the school, Mapanzela School, and it was on the 10th of May 1997.
CHAIRPERSON: Despite what you want to submit, in paragraph 4 it doesn’t say to whom he gave it, where he was when he gave it to this official, and when he gave it.
MR SHANE: Mr Chairman ...(indistinct)
INTERPRETER: The speaker’s mike is not activated.
CHAIRPERSON: He does say in paragraph 3 where he was and when he signed it. That’s fine. I’m not talking about where he signed it, or where he signed it, the application form is lost, and that’s what we’re trying to establish. What happened to it. Because we must also investigate whether this application was in fact made. He planned, he says, I filled it in. That’s not the end of the matter. Is there any explanation or
MR SHANE: Mr Chairman, in this, relating to this affidavit, I ask you to take into account the fact that we’ve heard evidence from an applicant previously, that this person, you heard evidence in fact from the applicant Victor Jeremiah Mambaso Nxomozulu, Muchacho. He said under oath that this person was present, and he went as far as who the official is.
With the greatest respect Mr Chairman, the applicant is before you. If there’s anything that needs to be supplemented to this affidavit, the applicant can, he’ll be under oath and he can tell you who he gave it to. I’ve mentioned an official of the TRC. Now that, under oath he can say who that official was, if he remembers.
Whatever other information that you may require, with respect sir, I submit with the greatest respect can be obtained from him under oath while he’s before you, just by questioning him, and that will complete everything you need to know sir, with the greatest respect.
CHAIRPERSON: And hat happens if we’re not satisfied that the application was made?
MR SHANE: Mr Chairman if you’re not satisfied that the application is made timeously, at the end of everything, then the law is quite clear on that. Then he cannot be granted amnesty. If he, the same as anyone else, if you get your application in too late, after 10 May 1997, you’re not entitled to amnesty. That’s the rules and that’s the law. B
But he, I submit Mr Chairman with the greatest respect, that on this, and on what you can hear, and also bearing in mind what you’ve already heard from the other applicant, I would submit that on a balance of probabilities it’s possible that his documents got lost and that loss was due to absolutely no act or omission on his part.
CHAIRPERSON: Are you done?
MR SHANE: On that aspect, yes.
CHAIRPERSON: Now answer the following questions for me. In this event would you not agree that an application taken to the normal condonation should be made? We haven’t got his application form. That’s common cause. You provide us with this affidavit, part of which makes an attempt, a flimsy attempt may I add, to explain why the original application form, if it did exist, is not here. In short, he says he can’t give an explanation, but this is what he did when he, after he completed the normal application form. Now he says in paragraph 4
"...my application form is lost and I can give no explanation for this save to say that officials"
plural:
"...of the TRC did take my form from me."
Now, would you submit that that’s sufficient for me even prima facie to allow this application to proceed?
MR SHANE: Mr Chairman I would say absolutely, because it’s not only based on paragraph 4, with he greatest respect.
CHAIRPERSON: On what else is it based?
MR SHANE: ...(inaudible)
INTERPRETER: The speaker’s mike is not activated.
CHAIRPERSON: ...(inaudible) an affidavit from those people attached to this?
MR SHANE: Mr Chairman, because first of all, I don’t believe that the rules pertaining to these applications are enforced as stringently as they would be if it was before you in the High Court Mr Chairman, number one. Number two, number two Mr Chairman, evidence under oath was given to you that the applicant was there. That was evidence under oath. All that would happen is a repeat. If I got an affidavit from the other applicant, from the applicant who said it under oath, would it merely be repeating what he said under oath. Whatever he said to you was under oath. That you’ve got to accept Mr Chairman.
CHAIRPERSON: Why, isn’t there an affidavit from these officials who allegedly collected his form, attached to this application?
MR SHANE: Mr Chairman the, it is, I’ll say it is an official, and I, that he can explain. It’s an official, that official is not available, I, on instructions from my client I didn’t mention the name of the official, but if, I can tell you, if I must tell you, the official involved was Sally Sealy, that’s my instruction.
CHAIRPERSON: Why is her name not mentioned here, and why hasn’t she submitted to an affidavit?
MR SHANE: Right, firstly Mr Chairman the reason is, number one, Sally Sealy, I cannot get hold of her, she’s not available. That’s number one. I prepared this affidavit, the applicant was in my office late yesterday afternoon, I prepared the affidavit, he came this morning, and he signed, and it was interpreted to him again, hence the changes that were made. Now I cannot get hold of Sally Sealy but whatever, I submit with the greatest respect Mr Chairman, that whatever the Commission wants to know, can be elicited from the applicant while he is under oath.
I will submit with the greatest respect, that on this before you there is, on a balance of probabilities, at the very least on a balance of probabilities, you can find that he, on the deadline day, he signed his application for amnesty. It was taken. He was with numerous, all the applicants. If you look all these applications before you ...(intervention)
CHAIRPERSON: You’re repeating yourself now Mr Shane. Can I ask you another question. What would be your position, and the position of the proposed applicant, if a person to whom he, assuming he did fill in the form and hand it over to somebody, assuming that person was not an official of the TRC, what would then be the position?
MR SHANE: Mr Chairman if that was, I mean this is pure speculation, but if that was the case, I would have to try and find out who that person was, if he could tell me.
CHAIRPERSON: But you just said it was Ms Sally Sealy. If she wasn’t an official of the TRC at the time. What would then be the position of the application?
MR SHANE: Mr Chairman I would still submit that if I could then establish who this person was, what was their capacity, I would then have to either bring that person before you or get that person to depose, but it would not, I would submit it would not render his submission invalid.
CHAIRPERSON: But then his application was not submitted, before the closing date. That’s the aim of my question.
MR SHANE: Well Mr Chairman we don’t know that, because it might have been submitted and got lost en route. We don’t know. I mean it’s possible that it could have been given to the proper authorities, and between the authorities it got lost. But Mr Chairman with the greatest respect I submit that before you, there is sufficient for you even if there is anything that needs further investigation or further information, it is obtainable from the applicant under oath. He can ...(intervention)
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)
MR SHANE: Mr Chairman having put the problem to me I’m going to have to tell you that I am obviously on this, it’s not sufficient, and on this, he’s going to, I know that I’m not going to get more information out of my client but I might need information from another official, which I will have to get by affidavit. I’m not going to be able to get it today, I hope I can get it tomorrow, but I would ask you that this matter stand down then until next week, in the circumstances. That’s the best I can do.
CHAIRPERSON: Mr Shane you are aware that we need to be satisfied that the proper application was made, and that the fact that it’s not before us is a TRC administrative problem, as opposed to no fault of the applicant. You’ve got to check that.
MR SHANE: Correct Mr Chairman. By saying that his failure, or the failure of his application to be before you, is due to no act or omission on his part, implies something went wrong on the part of the TRC.
CHAIRPERSON: No, that’s precisely the point. I raise specifically with you that the person whom he alleges received his document, we must also be satisfied that that person was a member of the staff of the TRC. If that person was not, for example if it was a private attorney, then the TRC is not at fault. Unless that attorney can prove to us that she or he handed it in to the TRC itself.
MR SHANE: Mr Chairman it’s quite clear then my position is I have to call that person, I’ve got no choice.
CHAIRPERSON: I’m not advising you what to do, I’m just pointing out my problems to you.
MR SHANE: I, it’s quite clear, and all I say is I will do my best to get that person. That person’s not available today, I ask that this matter possibly stand on until Monday.
CHAIRPERSON: And can you do something else for us? When you’re considering this application, because it’s not going to be an easy one, you need to pay attention to it and do everything necessary as any attorney should do. I’ll tell you what the normal procedures are, and you may picked it up with other applications, that as soon as the TRC received an application in the form of the roneoed form, the applicant or his attorneys will receive a letter of acknowledgment of receipt of that application. According to this affidavit, this application is allegedly to have been completed on or about the 10th of May 1997. One would have expected an explanation as to why enquiries had not been made thereafter about, what about the position of this application. So in your preparations, one would expect an explanation for that as well.
Mr Steenkamp there’s been an application for this matter to be postponed to next week. Have you got any comments on that?
ADV STEENKAMP: Mr Chairman with all respect I don’t think I’m in a position to make any comments, maybe save to say, maybe not directly relevant, but I am informed, I was informed as well, yesterday and today, I spoke to Mr Khanyile, one of the victims in this matter. My only, with all respect Mr Chairman, the suggestion is that when considering this application the rights of the victims must be considered. That’s my only remark if I may make it. Thank you Mr Chairman.
But regarding the position of postponing it, may we put on record I think it’s a common fact that during the time of this application I don’t think this specific individual in discussion was a member of the TRC. I think that’s a factual position.
CHAIRPERSON: I don’t know, I’ve asked Mr Shane to investigate it and to consider it properly in that light. She may very well have been a member. This Panel is unaware of it.
ADV STEENKAMP: I withdraw that remark Mr Chairman. The only thing I would suggest is, regarding the specific application, I’m sure and I would like for the moment just to speak at least to the victims and to hear what their view is on this application, because it can have an effect on their rights ultimately, obviously.
CHAIRPERSON: Mr Steenkamp, two days, and I’m going to discuss it with my colleagues, I for one would insist that it’s no longer than by Monday, so we’re talking effectively a one day difference, or two days if you want to become technical. That’s the best I’m going to do for Mr Shane.
ADV STEENKAMP: Mr Steenkamp I agree, I mean with all respect I’m in your hands, but the only point basically I’m making if I may, is the fact that I would suggest that the rights of the victims must all be taken into consideration.
CHAIRPERSON: I don’t know what we’re going to do if they oppose the application for a postponement, but I want to give you an opportunity to talk to them and explain the position to them. While their rights are important, the rights of applicants are just as important and we have to draw a balance between the two. Can we adjourn for five minutes please.
ADV STEENKAMP: Thank you very much, Mr Chairman.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Mr Shane.
MR SHANE: Mr Chairman I’d ask that this matter be stood down until next week, Monday.
CHAIRPERSON: Yes, Mr Steenkamp?
ADV STEENKAMP: Thank you Mr Chairman. Thank you for the five minute break. Mr Chairman there will be no position from my side until Monday. I think it’s reasonable and give me some time to consult with the victims.
CHAIRPERSON: Yes I think it’s far too important to make a decision on the validity of this application without proper information. There has been an application to postpone this application to Monday morning, and in the interest of justice and bearing in mind the rights of both the applicant and the possible victims in the matter for which he proposes to apply for amnesty, I’m going to grant him the postponement until Monday morning, nine a.m.
MZWAKE BUTHELEZI MATTER POSTPONED TILL MONDAY:
8TH FEBRUARY 1999
MR SHANE: As you wish Mr Chairman.
CHAIRPERSON: I believe there’s further applications to be heard today still?
MR SHANE: Mr Chairman we’re ready. If you will allow it Ms Nhlayisi will take over immediately without adjourning if that is in order.
CHAIRPERSON: It’s teatime, we can start with her after tea.
MR SHANE: As you wish Mr Chairman.
CHAIRPERSON: We’ll adjourn.
COMMITTEE ADJOURNS
ON RESUMPTION
