TRC Final Report

Volume 6

Section 1

Chapter 1

Subsection 3

FORMAL REQUIREMENTS

8. Before an application could be considered, it had first to comply with the formal re q u i rements of the Act.⁸ That is, the applicant was required to submit a written application on the prescribed amnesty application form. This application had to be made under oath and attested to by a commissioner of oaths.

9. If the Committee received an incomplete application, the form would be returned to the applicant with directions to complete it properly. Many applications were not submitted on the prescribed form. In such instances, the matter was registered and a proper form was sent to the applicant for completion. A large number of forms were returned because they were unsigned and/or had not been attested to by a commissioner of oaths. In many instances, application forms had been completed without legal assistance or had been completed by third parties on behalf of illiterate applicants. In such cases, it was often necessary for the Committee to condone an applicant’s failure to comply strictly with the formalities. It was sometimes possible to communicate with the applicants in question and place them in a position to cure the formal defects in the application. Where it was not possible to do this before the hearing, condonation⁹ for minor defects in the application¹⁰ was granted at the hearing itself. The Committee adopted the approach of allowing the applicant to present the merits of the application to the hearings panel. In all such instances, some of which w e re argued comprehensively, the granting of condonation did not result in prejudice to any other party. The hearing into the killings at Boipatong on the East Rand in 1992, for example, involved a substantial condonation application.

10. A further formal requirement was that the application had to be submitted to the Committee before the closing date for applications, as required by the Act.¹¹ The interpretation adopted by the Committee in this respect was that it had no statutory power to condone a failure to comply with this requirement. Thus the Committee did not consider applications submitted after the closing date. Although some late applicants petitioned the High Court for orders compelling the Committee to hear such matters, none was successful.

11. Some applicants attempted to amend their applications after the expiry of the deadline. Proposed amendments that attempted to introduce new incidents after the closing date for amnesty applications were normally refused. However, amendments that elaborated on incidents already expressly dealt with or alluded to in the original application were allowed. These included instances where applicants raised the possibility in the application of having been involved in further incidents, details of which they had been unable to recollect at the time of submitting the original application but which had subsequently come to mind.

ACTS ASSOCIATED WITH A POLITICAL OBJECTIVE

12. The Act required that the incident forming the subject matter of the amnesty application had to have been associated with a political objective.¹² The latter term was defined in some detail in the Act and included the following components:

The actions of the applicant must have amounted to an offence or a delict

13. The Committee was required to assess the applicant’s actions in order to ascertain whether she or he had complied with all the elements of the particular offence or delict. Where there had been a criminal prosecution and conviction based on the incident, this requirement was normally straightforward. Where , however, an applicant denied guilt for an incident, this requirement was not met and the application had to fail.

14. This highlights a significant limitation in the amnesty process. The patent injustice of this situation became clear where it applied to groups of co-applicants, some of whom denied guilt for incidents associated with political objectives for which all members of the group had been convicted and sentenced. Those who admitted guilt qualified for and were granted amnesty, and were released from custody. However, those who were innocent and also had, on the face of it, been wrongly convicted, were unable to benefit from the amnesty process. They were condemned to remain in custody pending the uncertain prospects of cumbersome and often prolonged administrative procedures that might lead to their eventual release (via, for example, a presidential pardon). The Committee had no powers to intervene in this kind of procedure. It did, however, wherever this kind of situation arose (as in the Boipatong case), include in its decision a recommendation that the cases of such ‘innocent’ applicants be referred to the President for his consideration.

15. The offence or delict requirement was also not met where the applicant successfully raised a defence that excluded legal liability, such as self-defence. In such instances, the fact that the application might comply with all the other requirements of the Act did not qualify the applicant for amnesty.

The incident must have occurred within the prescribed time period

16. The time period set by the Act was between 1 March 1960 (the month in which the Sharpeville massacre took place) and 5 December 1993 (the date the final agreement was reached in the political negotiations). This last date was subsequently extended to 10 May 1994 to coincide with the date of the inauguration of the first democratically elected President of the country.^{1 3}