CHAIRPERSON: Good morning, ladies and gentlemen.

Mr Mthembu, let me remind you that you are still under oath.


CHAIRPERSON: What happens now is that the members of the Committee are going to put questions to you to clarify some of the aspects of your evidence. Do you understand that?

MR MTHEMBU: Yes I do understand.

CHAIRPERSON: I have warned you before, I'll do it again, if you do not understand the question, would you please indicate that you don't understand the question so that the question can be repeated to you or explained to you as the case may be. Do you understand that?

MR MTHEMBU: Yes I understand.

CHAIRPERSON: And because we are running out of time but not to suggest that because there is no time we have to hasten this, it will be helpful where the answer has to be a yes or no for you to say so as opposed to making a statement.

MR MTHEMBU: I understand.

CHAIRPERSON: Where necessary and if you feel that you want to make a statement, do so. Do you understand that?

MR MTHEMBU: Yes, I understand.

CHAIRPERSON: Mr Sibanyoni, do you have any questions to put to the witness.

MR SIBANYONI: Yes, thank you Mr Chairperson, I do have questions.

Mr Mthembu, this incident, the attack on Boipatong, I took it it's something which happened for the first time to you and then it's something which you'll not easily forget, it's a very significant event, am I correct?

MR MTHEMBU: Yes sir.

MR SIBANYONI: And as such I take it that it's easy to relate to us, to tell us even without looking at the documents just to tell us broadly what happened, am I correct?

MR MTHEMBU: Yes sir.

MR SIBANYONI: I just want you to clarify this. There were at some stage when Advocate Berger would ask you a fact and you say you don't have any knowledge of it or at a certain stage you'll say even that it didn't happen that way but thereafter Mr Berger will refer to your affidavit and pick up that fact. Now can you tell us why did that happen, that you will say something didn't happen but when you are confronted with your affidavit, you'll then consider that it did happen?

MR MTHEMBU: I can say it's been a long time since this thing happened, I therefore am not in the position to remember everything that happened.

MR SIBANYONI: Can you tell me whether there's any reason perhaps why most of the time when Mr Berger was asking questions you wouldn't respond, you would perhaps kick up an argument with him and not give him a question. Is that perhaps a reason for doing that and answering him?

MR MTHEMBU: I am not in a position to answer some of the things because it's been a long time now.

MR SIBANYONI: Is that the reason why you were not responding immediately to his questions?

MR MTHEMBU: That is correct, sir and also if he asks me the question, I should have to listen very carefully as to what answer he was looking for, I too had to take time to think.

MR SIBANYONI: I did ask you a question about possibility of fear, I want to repeat that question just to get clarity. When you tell your story before this Committee, it would appear that you go as far as what you personally did and as far what those two people, who are deceased, Mabode and Tjonjo did and only one of your co-applicants, Khanyile, but he said he is your friend, a close friend. That gives me the impression that you are afraid to talk about what other people did who are not close to you. What is your comment about that?

MR MTHEMBU: I am here sir, not afraid of anyone, I have come here wholeheartedly. I am therefore not afraid to say things. I cannot say things that they did or did not do, I'm not afraid of anyone.

MR SIBANYONI: You said you passed standard nine which is the first year in matric, am I correct?


MR SIBANYONI: And then, may I just say to you it doesn't sound, auger very well when you kept on saying you are not educated, you didn't even know what position Themba Khosa had in the IFP - what is your response to that?

MR MTHEMBU: I was answering pertaining to how I view things, indicating that there is nowhere I can go with this level of education.

CHAIRPERSON: Did you pass standard nine or did you go as far as?

MR MTHEMBU: Yes, sir.

MR SIBANYONI: Concerning you licences to possess firearms, you said you only had two?

MR MTHEMBU: That's correct, sir, even now I have only two.

MR SIBANYONI: Although your identity document reflects three licences, you didn't have a third gun, I suppose, it was only a licence that was issued to you?

MR MTHEMBU: As I have explained earlier on that I was supposed to receive the first licence and it was cancelled, if you can get hold of my identity document it will clearly indicate that the first licence was cancelled because the numbers were not corresponding with the firearm.

MR SIBANYONI: The reason you said you didn't use your licensed firearm during the attack is it because you regarded the attack as something which perhaps was unlawful, perhaps you wouldn't use your licensed firearm as when you are protecting yourself or what was the reason?

MR MTHEMBU: These were legal firearms and I therefore could not use these firearms knowing fully well that they were not meant for political reasons or motives.

MR SIBANYONI: When those firearms licences were issued to you, you already had criminal record, I heard you talking about you had various criminal records even from long ago?

MR MTHEMBU: I would not know that sir as to whether I had criminal records or not.

MR SIBANYONI: When you were asked about the word hit squad you said it was a computer error, but as a person who passed standard nine definitely would know that for a computer to print a word, somebody had to feed that computer with the word. Did you at any stage when you were deposing to your affidavits, using the word hit squad because it appears more than once?

MR MTHEMBU: I explained that I did not write the affidavit myself.

MR SIBANYONI: You didn't write the affidavit?


MR SIBANYONI: But you were deposing to the affidavit in English, in other words you were speaking English, nobody had to interpret what you were saying?

MR MTHEMBU: No, there were only two of us, myself and the lawyer.

MR SIBANYONI: Then you speaking English?

MR MTHEMBU: I think I was speaking English because he is white, because the legal representative is white.

MR SIBANYONI: Did you speak English or you think you spoke English? Okay, I'll leave that.

Mr Mthembu,you said people who were harassed, tortured at Boipatong were Zulus and IFP members, did I understand you correctly?

MR MTHEMBU: Yes sir, you understood me well.

MR SIBANYONI: Would you agree that people who were attacked, in other words victims, some of them were Zulus?

MR MTHEMBU: Would you please repeat, sir?

MR SIBANYONI: My question is, some of the people who were attacked, some of the victims who were attacked at Boipatong are Zulus?

MR MTHEMBU: I have no knowledge of that, sir.

MR SIBANYONI: My point is, do you concede that amongst the people who were attacked, some of them are not ANC and some of them are people who you saying were under attack by the ANC?

MR MTHEMBU: I am not a resident of Boipatong, what I can say is the people who were attacked were ANC people involved in politics.

MR SIBANYONI: From how long have you known this man from Msinga, the Msinga contingent, for how long have you been with them at the hostel?

MR MTHEMBU: When I arrived in 1990, they were already there, right up to 1992.

MR SIBANYONI: Three years you were with them?

MR MTHEMBU: That is correct, sir.

MR SIBANYONI: Are there any of them who have been attending this hearing perhaps?

MR MTHEMBU: I did not see them because it's been a long time since I was incarcerated.

MR SIBANYONI: In your affidavit you said during the meeting it was said this problem of your people being killed at Boipatong should be reported to Buthelezi. Was it in fact reported?

MR MTHEMBU: Yes, sir.

MR SIBANYONI: I suppose that an event like this one which happened on the 17th June 1992, to attack is like starting a war and as such it has to be with the approval or the blessing of some people higher in the IFP structures. What is your comment about that?

MR MTHEMBU: There is nothing I can say about that.

MR SIBANYONI: Is it perhaps because of fear that you can't say anything about that?

MR MTHEMBU: No, I am not afraid, I just have no comment.

MR SIBANYONI: Thank you Mr Chairperson, no further questions.

CHAIRPERSON: I think the point has been made here is that if the attack on Boipatong was at the instance of IFP members who were being attacked by the Boipatong residents who were perceived to be ANC, the decision to attack in all probability would have come from the top structures of the IFP. No one is suggesting that you knew that but we're putting it at no higher than just a probability, do you understand what I'm saying?

MR MTHEMBU: Yes I do understand that.

CHAIRPERSON: Would it be fair then to make that assumption?

MR MTHEMBU: As far as I'm concerned, I don't think that's the right way to go.

CHAIRPERSON: Yes, Advocate Sigodi?

ADV. SIGODI: Mr Mthembu, I just want to clarify one aspect here. I just want to get a picture of what was happening at Kwamadala Hostel. Roughly how many people were staying in Kwamadala Hostel?

MR MTHEMBU: There may have been people in excess of 1000, above.

ADV. SIGODI: And did those include women as well?

MR MTHEMBU: Yes, that is correct, madam.

ADV. SIGODI: And were they all IFP members?

MR MTHEMBU: That is correct.

ADV. SIGODI: What concerns me is the motive for the attack on the Boipatong residents. For me it could be one of two things. It could either have been an IFP order or instruction to go and attack ANC people in Boipatong or it could have been the hostel dwellers for their own reasons, one of the reasons being that they were prevented from buying at the shops, attacking the Boipatong residents who happened to be in the predominantly ANC area. So what I want to find out from you, was this an IFP attack on ANC or was it just hostel dwellers attacking Boipatong residents irrespective of whether the Boipatong residents had IFP members or not. Do you understand what I'm trying to ask you?

MR MTHEMBU: Yes, I understand.

ADV. SIGODI: So which one was it, was it IFP versus ANC or was the hostel dwellers versus the Boipatong residents?

MR MTHEMBU: As far as I see it there were IFP members residing at the Kwamadala Hostel and there was also this ANC organisation who barred people from the hostel to buy at the shops - they were killed and necklaced.

ADV. SIGODI: Now what worries me is the fact that when the IFP people of the Kwamadala Hostel went to attack the Boipatong residents, if they wanted to attack the ANC people as you said and like you said that the people that you were targeting were the self defence unit people specifically and you went into the houses because the STU's ran away when they saw you and they went into the houses and that's when you started attacking people inside the houses. What I want to find out, if you want to attack the ANC, what measure did you take to protect the people who were IFP in Boipatong?

MR MTHEMBU: I would not explain about IFP members residing in Boipatong, that was not to my knowledge.

ADV. SIGODI: Because you testified that you had to wear a red band as the hostel dwellers in order to prevent you attacking each other but you did not make any provision for people who could possibly be IFP who were staying in the townships in Boipatong?

MR MTHEMBU: Yes that is correct.

ADV. SIGODI: Because it was concerns me is what political objective did you intend to achieve if you went and killed some IFP people because it was put to you that some of the victims were IFP supporters?

MR MTHEMBU: I can explain here that I had no knowledge that there were IFP members residing at Boipatong, especially because we are the ones who were being killed at Boipatong. How could we be killed by people who were members of the IFP?

ADV. SIGODI: But it's a known fact that Boipatong was predominantly ANC, or you perceived it to be as such, but what concerns me is the indiscriminate killing in so far as the political objectives that you may have sought to achieve?

MR MTHEMBU: I am not in a position to comment about that.


MR LAX: Thank you, Chairperson, if I could just pull this across here so that we don't have any problems with the sound system.

Mr Mthembu, I just want to follow up on this issue of IFP members in Boipatong that my colleague has raised with you. You say you didn't know there were IFP members in Boipatong, is that right?

MR MTHEMBU: That is correct, sir.

MR LAX: Well, can I refer you to paragraph 532 of your affidavit at page 24. You'll see from that paragraph that the Youth Brigade went into Boipatong to discuss with youth associations and young people how to become members of the IFP. In other words, to recruit members in that area?

MR MTHEMBU: That is correct, sir.

MR LAX: And you were Vice-Chairperson of the Youth Brigade?

MR MTHEMBU: That is correct. On that day I was also present when they went to Boipatong.

MR LAX: This paragraph doesn't just say you went there once, it implies that you went there on a regular basis to meet with people, to persuade them to become IFP members, correct?

MR MTHEMBU: Yes that is correct but we had a problem. On that day the police chased us out of the township, they did not want to see us there and we therefore was no longer able to continue with our mission.

MR LAX: But the fact of the matter is that there probably sufficient people in Boipatong sympathetic to the IFP to make it worth your while to go there to try and recruit people?

MR MTHEMBU: I would not know sir, because on that very same day before we were chased away by the police we did not find any recruits because these people had already indicated through their actions that they were not co-operating.

MR LAX: Well then why did you sign this section of this affidavit which is worded in terms that imply that you went there on many occasions and that you spoke to people and that you tried to encourage them to join the IFP? Why didn't you correct that and point out to lawyer that this a mistake, you only went there once?

MR MTHEMBU: I did not see it as a mistake because it is something that I was talking about as something that happened.

MR LAX: Well you see, you say you never spoke to anybody that day because you were chased away before you could get there? Just answer the first part, is that correct?

CHAIRPERSON: What is your answer to that?

MR MTHEMBU: I am saying we did not talk to the people, we were chased away by the police at Boipatong.

MR LAX: Well it's written here "The Youth Brigade was encouraging other youths to join the IFP. They would enter Boipatong to discuss with youth associations and young people how to become members of the IFP. If you were chased away, how could you discuss with anybody?

MR MTHEMBU: This is something that explains what our mission was, what we went there to do.

MR LAX: The way this is worded says that you went there and you did it, not that you were prevented from doing it, so my problem is that as Vice-Chairperson of that Youth Brigade, you held planning meetings, you say that in your evidence and in your affidavits, correct?

MR MTHEMBU: That is correct.

MR LAX: And in order to plan to do something you must know there's the potential to be successful, correct?

MR MTHEMBU: Yes it is possible to succeed and it is also possible not to succeed.

MR LAX: Now I want to turn to another issue. The affidavit that is contained in these papers that ends at page 42 and starts at page 36, you signed that on the 3rd June 1998, is that correct?

MR MTHEMBU: Yes that is correct.

MR LAX: So that at the time you signed that affidavit you remembered all the things that are contained in that affidavit, is that right?

MR MTHEMBU: I do not understand the question.

MR LAX: Well, when you sign an affidavit, you are asked whether you know and understand it's contents, correct?

MR MTHEMBU: That is correct.

MR LAX: So you knew the contents of that affidavit when you signed it on the 3rd June 1998?

MR MTHEMBU: Yes, sir.

MR LAX: Therefore you remembered the contents at that stage, is that right?

MR MTHEMBU: That is correct, sir.

MR LAX: What I want to know is, what has happened in the last month that's made you forget a number of the issues that appear in this affidavit? How come you've suddenly forgotten quite a number of the issues that appear in this affidavit?

MR MTHEMBU: What is written in here, sir, are issues that pertain to things that happened some years ago. Just because the date reflected is recent does not mean that this happened only recently, it happened over six years ago.

MR LAX: You see my point, Mr Mthembu, is this - when you signed this affidavit you remembered all the things you mentioned in this affidavit and you swore on oath that you did actually know them, are you with me?

MR MTHEMBU: Yes I understand.

MR LAX: Now in the interleading months you signed that between the time you signed it and the time you came before us, you've suddenly forgotten some of the facts referred to in this affidavit and I'm trying to understand why, what has happened, what has made you to forget things that you swore you knew?

MR MTHEMBU: With regards to that sir, I would not have any other explanation to offer except for what I've just explained.

MR LAX: Now, I want to just turn to another issue and that is according to your evidence you were in Boipatong for between half an hour and an hour?

MR MTHEMBU: That is correct, sir.

MR LAX: Does that time period include the time it took for you to leave the hostel, go to Boipatong, be there and then return back to the hostel?

MR MTHEMBU: I was explaining the time from which we entered Boipatong.

MR LAX: Yes, so that's only from the time you entered?

MR MTHEMBU: Yes that is correct.

MR LAX: And in that time you were there you can only remember three or four things that you did?

MR MTHEMBU: Yes, sir.

MR LAX: Well please explain this to me because I find this very difficult to believe. I find it difficult that somebody could be in a place for over half and hour, to be involved in some events that you remember very clearly down to the minutest detail, like helping the children, thinking about whether to put them in a wardrobe, changing your mind, realising that that's not a good idea, then putting them under the bed, remembering that you even made sure that you left after colleagues so that no harm would come to them - that sort of detail you remember, the rest is just blank, there just seems to me no explanation for this. What I'm saying is, not that I don't believe you, I find it hard to understand how you can remember some things in such immense detail and the rest is just blank, so I want you to try and help me understand how this is possible. Are you with me?

MR MTHEMBU: Yes, I understand. With regards to that I can explain that when I was there I may not be able to recollect some of the things that happened or some of the things that were done by my colleagues which I did not witness. There are things that I remember, those that I have explained before the Committee.

MR LAX: What I'd like you to try and do now is, just say you come over the foot bridge, you remember that, crossing the foot bridge?

MR MTHEMBU: Yes I remember.

MR LAX: Do you still have that map in front of you, can you show me where the foot bridge is on that map, if it is on that map?

MR MTHEMBU: I cannot see it from the map.

MR LAX: Is the foot bridge on the east of Boipatong?

MR MTHEMBU: It is on the west towards Kwamadala Hostel.

MR LAX: So it's - I can't actually see the street that forms the - on my copy it's not very clear. There's a street that runs along the entire western side of Boipatong.


MR LAX: Thank you - it's looks like Tambo Street but you can see it on the map, it tends to run right from the top corner where the words Kwamadala with an arrow are written, all the way down to the bottom, can you see that?

MR MTHEMBU: Yes, sir, I see it.

MR LAX: Now at what point at that street did you enter Boipatong, can you remember?

MR MTHEMBU: I think we entered through that direction, I think the bridge should be on this side.

MR LAX: You're sort of pointing into a line with Umsimvuvu Street, is that right?

MR MTHEMBU: Yes, sir.

MR LAX: And would that be the main entrance into the township or is that just the place where you entered into the township?

MR MTHEMBU: I think it's the route that we used into the township.

MR LAX: Right, now at some point the whole group of you, however many hundred there were, split up and there were two leaders of, according to some of your colleagues, there were two groups. What do you remember of that?

MR MTHEMBU: Because we were a very large group, we separated into groups when we went into the township.

MR LAX: Well, did you separate into many groups or into two groups or into three groups?

MR MTHEMBU: I would not be able to explain it because if we - when we entered the township, we just entered as a group.

MR LAX: Well, you see your colleagues say that they broke up into two distinct groups under the leadership of two individuals, each group. One group was under Tjonjo's leadership and the other was under Mkhize's leadership - that's what your colleagues say.

MR MTHEMBU: I understand that sir.

MR LAX: You weren't part of any of those groups, you just went your own way?

MR MTHEMBU: As I explained before that I was Tjonjo and everybody when we went to attack.

MR LAX: Well, what I'm trying to understand is, how did that separation happen, did you stop, did the two of them say "I want half this side, I want half that side, half of you must follow me, half you must go the other way - these things don't just happen on their own, somebody must stop and something has to happen, that's what we're trying to understand, that's why I'm asking you to see if you can help us.

MR MTHEMBU: We did not stop and decide who was going with who, I think it just happened that when we entered the township, some people took one route and the other group took the other route.

MR LAX: Okay, now as you entered the township then, one group took one route and another group took another route, is that what you're saying? Or different routes in the plural?

MR MTHEMBU: What I'm explaining sir, is that because we were a very large group, we did not use the same route or we did not attack the same houses, we just used the route in the township.

MR LAX: Okay. Are you able to give us any indication of which directions the main groups went in, from the point at which you are standing at Umsimvuvu Street, with the township in front of you, facing therefore towards the east. Did some go to your left, did some go to your right, some go straight down Umsimvuvu Street? What do you remember?

MR MTHEMBU: What I remember was that when we entered the township, we did not change direction, we just followed the easterly direction from the entrance of the township, going inwards.

MR LAX: So you would have carried down Umsimvuvu Street?

MR MTHEMBU: I think that because we entered through that direction, some of us would have proceeded along Umsimvuvu.

MR LAX: And you've told us that you did actually, you personally did proceed down there, is that right?

MR MTHEMBU: Yes that is correct, sir.

MR LAX: Now, I'm not sure what the scale here is but according to what Mr Berger indicated, from this point roughly at the beginning of Umsimvuvu Street down towards the park is about 900 metres, is that correct? That's about 9 football grounds?

MR MTHEMBU: I can see that sir.

MR LAX: Now that - were you walking, were you running, were you running fast, what were you doing?

MR MTHEMBU: We were hurrying because the people we were after were running into the houses.

MR LAX: Now, you told us you saw a group of people sitting around a fire when you got into the township?

MR MTHEMBU: That is correct, sir.

MR LAX: How far away from you was that group of people when you saw them?

MR MTHEMBU: They were not very far, but they were inside the township.

MR LAX: Well were they in the first block, were they in the second block?

MR MTHEMBU: They were just seated at the first block of the first houses into the township.

MR LAX: So they were seated at that first block as you come into Umsimvuvu Street, somewhere along that first block?

MR MTHEMBU: Yes that is correct.

MR LAX: And when they saw you they ran away?

MR MTHEMBU: That is correct, sir.

MR LAX: And you and others presumably chased them?

MR MTHEMBU: Yes sir.

MR LAX: Now how long and how far did you chase them?

MR MTHEMBU: As we were chasing them and they ran into houses, we also followed into the houses.

MR LAX: Can you point out for us on this map where those houses were that they ran into?

MR MTHEMBU: I would not be able to point out on the map because I do not know the township very well.

MR LAX: Okay. Now, while you were running and chasing these people, what else did you do?

MR MTHEMBU: There was nothing else that we did.

MR LAX: So you didn't break windows, you didn't break furniture, you didn't steal anything, all you can tell us is that you stabbed one person and that you hit another person over the head?

MR MTHEMBU: I have explained that, sir, that because these people ran into houses that was when property got damaged in the houses.

MR LAX: I'm not asking what these people did, I trying to understand what you yourself remember doing, yourself?

MR MTHEMBU: I explained that we destroyed property and whatever furniture that we found inside the houses.

MR LAX: Now you're told us that these people seemed to be forewarned, they saw you coming and they ran away?

MR MTHEMBU: Yes sir.

MR LAX: You've also said that you were quite angry?

MR MTHEMBU: Yes, sir.

MR LAX: You've also said that the Intelezi made you angry?

MR MTHEMBU: That is correct.

MR LAX: What I'm trying to understand is, was it this anger that made you just react and attack people indiscriminately?

MR MTHEMBU: Because we were already heartbroken and sore because we had been tortured and harassed in the township before.

MR LAX: Ja, my question was, from the way you described what you - how you felt - you seemed to have got very angry and then the Intelezi made you even more angry and the fact that these people seemed to be forewarned and running away from you must have made you even more angry?

MR MTHEMBU: Yes, sir.

MR LAX: So what I'm trying to understand is did you act out of anger in the situation and that's why you attacked people indiscriminately?

MR MTHEMBU: Yes, sir, it had come to a point where we did not know what to do because our people were dying daily.

MR LAX: Where did you get your two firearms from?

MR MTHEMBU: I bought the first one from Westgate in Johannesburg. I bought the second one in Vanderbijlpark.

MR LAX: This second one is a CZ isn't it?

MR MTHEMBU: Yes, a CZ83.

MR LAX: That's a standard police issue, isn't it?

MR MTHEMBU: I do not know whether the police used them.

MR LAX: Where did you buy that one?

MR MTHEMBU: At a gun shop in Vanderbijlpark.

MR LAX: You spoke about in the hostel you were divided up into units when you said that the people in your unit were Zwele and - I can't remember who the other person was - Buthelezi?

MR MTHEMBU: Yes that is correct.

MR LAX: What was the purpose of these units?

MR MTHEMBU: I cannot explain what the purpose was for because when I arrived that was how things were run, there was a Senior Unit and a Youth Unit.

MR LAX: A Senior Unit and a Youth Unit?


MR LAX: Are you meaning committee?

MR MTHEMBU: Yes, sir.

MR LAX: Well you see, maybe there's some confusion here and you can clear it up for us but you were asked and this was in relation to one of the statements that was put to you, by Mr Berger I think it was, the person in that statement was saying that everyone in the hostel was divided up into a unit and you confirmed that, as opposed to a committee, you understand?

MR MTHEMBU: I do not understand, sir.

MR LAX: So do you know whether people in the hostel were divided up into different units or not as distinct from committees?

MR MTHEMBU: I do not have knowledge of that sir.

MR LAX: Just one last aspect, Mr Mthembu, you said that you didn't know whether there was any planning that preceded this attack?

MR MTHEMBU: Yes, sir.

MR LAX: Now you were asked in the request of further particulars at page 18 to provide details, the particulars of the various structures and in 5.1, 5.2 and 5.3 and so on, you are asked to explain the differences of these different structures, functions, authorities and so on. In 5.3.1 you talk about the Senior Committee, that is on page 24 and you describe it's functions and you say that one of their functions was to make plans to counter-attack the ANC and then you talk about "after everyone were chased from Boipatong and we could no longer shop or go there", do you see that?

MR MTHEMBU: I do not see it, sir.

MR LAX: Well read the last sentence of paragraph 5.3.1 on page 24, it's right in the middle of that page. You found it?


MR LAX: Okay, now how did you know that that was one of the jobs of the Senior Committee?

MR MTHEMBU: I can say that we had been harassed - our leaders may have discussed this as leaders of the organisation.

MR LAX: You see, in this paragraph you say that's one of their functions, that's one of the jobs they do, you don't say they might have done that, you say they had to make plans. Now how did you know that?

MR MTHEMBU: I cannot say how I knew this because I was aware of the situation at the time in the Vaal Triangle.

MR LAX: Well why did you put it in your affidavit if you don't know it?

MR MTHEMBU: I am not able to give further comment on that.

MR LAX: Thank you Chairperson.

CHAIRPERSON: You told us that there was a Senior Committee in Kwamadala Hostel. From your own personal knowledge, do you know what their - what the function of the Senior Committee was?

MR MTHEMBU: No, sir.

CHAIRPERSON: Do you know who the members of the Senior Committee were?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Yes I think you've given those, okay. Did they operate within the hostel?

MR MTHEMBU: Some of them were employees of ISCOR and some worked in the Vereeniging area.

CHAIRPERSON: But did they reside, did they stay in the hostel?

MR MTHEMBU: That is correct, sir.

CHAIRPERSON: Did you know where they had their meetings?

MR MTHEMBU: They held meetings inside the hostel, there is a stadium in the hostel.

CHAIRPERSON: Talking about the committee and I understand that to mean that they are just a few individuals who constitute the committee?

MR MTHEMBU: Yes they are a few.

CHAIRPERSON: Now also in regard to your committee I take that you're just talking about the three individuals who constituted what the Youth Committee, I think it is?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Now, as a committee, did you hold meeting with the larger membership of the youth?

MR MTHEMBU: Sometimes, as members of the committee we would meet first and thereafter we would then meet with the other youth members in a general meeting maybe briefing them on certain issues like rallies and conferences at Ulundi.

CHAIRPERSON: I see, now do you know whether the Senior Committee also functioned in the same manner in which you did i.e. meet separately and then at some stage go to the larger membership to brief them?

MR MTHEMBU: I think, sir, that this is how it happened because they would not call up another meeting before they had discussed on the issues first.

CHAIRPERSON: Did you meet meetings together with the Youth Committee - no, no, the Senior Committee members as a Youth Committee?

MR MTHEMBU: With regards to that, we'll explain that if perhaps there was an issue that pertained to the youth, they would call us and we would discuss the issue.

CHAIRPERSON: Yes and would they do the same if it is an issue which effects the larger membership of the Senior Committee and the larger membership of the youth?

MR MTHEMBU: That is correct.

CHAIRPERSON: As I understand your evidence, the residents of Kwamadala Hostel were troubled by the fact that their members were attacked and I think you used the word necklaced whenever they went to the township?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Was there any stage when the Youth Committee and the Senior Committee came together to discuss this issue?

MR MTHEMBU: We had met on several occasions because we would meet, discuss this matter, try to find a solution to this problem.

CHAIRPERSON: Was Mr Dlamini the IFP representative in Vereeniging, well in the Vaal Triangle, called to one of those meetings?

MR MTHEMBU: He would attend some meetings and sometimes he would not be able to attend when he was in Durban.

CHAIRPERSON: At these meetings were there any suggestion, proposals made as to how to deal with this problem of IFP members being attacked whenever they go to Boipatong?

MR MTHEMBU: It did happen that Mr Dlamini was informed that we as IFP members recommended that the Chief Minister Buthelezi to be informed of our problem in the Vaal Triangle.

CHAIRPERSON: That the suggestion that the matter ought to be reported - were there any suggestions to how to deal with the problem at hand?

MR MTHEMBU: No, sir. There were no suggestions.

CHAIRPERSON: Were perhaps people warned that in view of the dangerous situation which prevails in Boipatong, people should not leave the hostel and go there?

MR MTHEMBU: Yes they were told but the unfortunate part is that some of these people had fled from the township and had family residing in the township and sometimes they would go to check on their families and be attacked in the township.

CHAIRPERSON: Did it perhaps occur to the residents of Kwamadala Hostel that the attack might well be taken into the hostel?

MR MTHEMBU: It was obvious, sir, that the residents of Kwamadala Hostel could be attacked because the community of the Vaal Triangle had already stated that they did not want the IFP in the area.

CHAIRPERSON: Yes, had there been threats that they would come into the hostel?

MR MTHEMBU: Yes, there were rumours that these people may attack us at the hostel.

CHAIRPERSON: Yes, what decision, if any, was taken by the residents of Kwamadala to protect themselves against such a ..[inaudible] threat?

MR MTHEMBU: As far as I can see, I think this was reported even to the management of ISCOR because the police patrolled around the Kwamadala area.

CHAIRPERSON: Was there any discussion about the residents having to protect themselves by arming themselves?

MR MTHEMBU: I can say that because of the situation of the bad situation at the time, as Amazulu, we have traditional weapons that we always keep with us, such that those who did not have them were supposed to acquire them, fetch them from home.

CHAIRPERSON: Yes and I suppose that the - I mean arming oneself was not restricted to arming oneself with cultural weapons, you could arm yourself with firearms if you can obtain one?

MR MTHEMBU: Yes that is correct.

CHAIRPERSON: And then to your knowledge, this is now personal knowledge, do you know whether the attack on Boipatong was discussed at any stage prior to the 17th June 1992?

MR MTHEMBU: I do not have knowledge of that sir.

CHAIRPERSON: Damara Tjonjo and Bhekinkosi Mkhize are the persons who took the decision that there has to be an attack on Boipatong?

MR MTHEMBU: Yes sir.

CHAIRPERSON: What role did Damara Tjonjo play within the hostel in the affairs of the IFP?

MR MTHEMBU: As far as I know, Damara Tjonjo was one of the people who looked after the residents of Kwamadala Hostel like protecting them in the event of attack.

CHAIRPERSON: What about Mr Bhekinkosi Mkhize?

MR MTHEMBU: From what has been read to me I discovered that Mr Mkhize was one of the Amabuto.

CHAIRPERSON: Yes, forgetting for one moment about what has been read to you, I just want to talk about your own personal knowledge as to what his position was and his role was within the hostel?

MR MTHEMBU: I can say he was one of the Indunas at Kwamadala Hostel.

CHAIRPERSON: Apart from stabbing and hitting with the knopkierrie, what else did you do?

MR MTHEMBU: I broke windows of the houses that we passed and if we saw a house on the road we would actually cut the tires open.

CHAIRPERSON: Now there is a mention of white headbands and somewhere reference is made to red headbands. What was the colour of the headbands that you were wearing?

MR MTHEMBU: We were using white headbands.

CHAIRPERSON: You testified earlier on that - if I recall your evidence that you did not know what Amabuto is - is that what you said?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Yesterday you described how in the days of King Shaka, people would attack and then bring back the cattle as a sign of victory, remember that?

MR MTHEMBU: Yes sir.

CHAIRPERSON: The people who went to attack, do you know what they were called? Weren't they called Amabuto?

MR MTHEMBU: I have no knowledge of that, sir.

CHAIRPERSON: You do not know what they were called?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Is there anything arising?

MS PRETORIUS: No questions, thank you Chairperson.


MR STRYDOM: No questions.

MR BERGER: I just have a very few questions Chairperson.



MR BERGER: Mr Mthembu, at page 10 paragraph 16 of your affidavit, you say "They told us to take traditional weapons and we had to put red headbands around our heads so that we would be recognised and would not kill one another by mistake." Why did you say there that they were red headbands if they were white?

MR MTHEMBU: You are white, Mr Berger, you will not understand what I am talking about. We used to use white headbands. I have explained here the colour of the headband that we were using, these colours were white and you will not understand and you will not know this.

CHAIRPERSON: All that he's asking you is, why is it stated in your affidavit, why is there reference to a red band in your affidavit? Do you understand the question?

MR MTHEMBU: Yes I understand the question.

CHAIRPERSON: He's putting it to you that you referred to a red band, red headband, when in fact you told us that you had a white headband. Now what he wants to find out is why, you know, you are referring to a red headband when in fact you had a - was it a mistake or what?

MR MTHEMBU: It might as well be a mistake but what I know is that we were using red and white headbands.

MR BERGER: Mr Mthembu, if it was a mistake why didn't you just say that to me when I asked you the question instead ...[intervention]

CHAIRPERSON: We're not going to take this any further whether they were red or white, the fact of the matter is he says they used both of them.

MR BERGER: As you please, Chair. Mr Mthembu, could you give the name of the shop from which you purchased your CZ83 in Vanderbijlpark?

MR MTHEMBU: I do not remember the name of the shop quite well, but there is a furniture shop and there is a furniture shop right next to - there is a gun shop right next to the furniture shop.

MR BERGER: Could you say what street in Vanderbijlpark it's in?

MR MTHEMBU: I do not quite remember the name of the street, but it is near the police station in Vanderbijlpark.

MR BERGER: Mr Mthembu, would you know that at the time of the attack of the leading members of the IFP who were staying in Boipatong there was a Mr Mkhize in Bapedi Street?

MR MTHEMBU: I have no knowledge of that.

MR BERGER: A Mr Khubeka of Majola Street?

MR MTHEMBU: I don't know him as well.

MR BERGER: A Mr Zimba of Majola Street?

MR MTHEMBU: I have no knowledge of that.

MR BERGER: Thank you Chairperson, I have no further questions.


CHAIRPERSON: Yes, Ms Cambanis?


MS CAMBANIS: Thank you Chair, there's just one question.

Sir, in response to the question whether there was a decision taken to protect yourselves from possible attacks, you said as far as you knew it was reported to the management of ISCOR and thereafter police began patrolling around the Kwamadala Hostel, is that correct?

MR MTHEMBU: Yes that is correct.

MS CAMBANIS: When did this police patrols begin around the Kwamadala Hostel?

MR MTHEMBU: They started patrolling since 1990 that is as far as I know.

MS CAMBANIS: So on the night of the 17th June 1992 those police patrols round Kwamadala Hostel were taking place, is that correct?

MR MTHEMBU: Yes, the police used to come and patrol, often times.

MS CAMBANIS: Thank you, thank you Mr Chair


MS PRETORIUS: No questions.


MR BRINK: No questions thank you Mr Chair.


CHAIRPERSON: Yes, very well, Mr Mthembu we are finished with your questioning, you may now return to your seat. We will now proceed with the remaining applicants.



CHAIRPERSON: Perhaps before we get to the other applicants, would counsel need some time I suppose just to, you know, get their thoughts together and then perhaps we can kick off as soon as counsel is ready or should we take the tea adjournment at this stage and maybe come back at about quarter past eleven or eleven o'clock?

MR BERGER: Chairperson, I am ready so whenever it pleases the Committee, we can start.

MR STRYDOM: I'm not going to start, sir, I'm also ready but I think it's not a bad suggestion that we can take the tea adjournment now.

CHAIRPERSON: Yes, I suppose so, I think we should now take the - a short adjournment until about eleven o'clock and then when we come back we can then hear the argument in regard to the remaining applicants. We'll rise and come back at eleven o'clock.



CHAIRPERSON: It has been drawn to my attention that some of the headphones have since gone missing I would urge people who make use of these to make sure that they leave them behind on their seats after we have come to the close of these proceedings, thank you.

Right, we've now come to the remaining fifteen applicants who have also applied for amnesty. We understand that the victims have raised an objection to their application on the basis that their applications do not comply with the requirement of the Act. It is only proper therefore that we at this stage, before going into the merits of the applications by the remaining applicants, that we should deal firstly with the question whether or not these applications comply with the Act. In that regard, the legal representatives will then submit argument to this Committee and hopefully at the end of the argument, we will be able to make a decision as to whether or not these applications can be heard on their merits. Mr Berger, you lead the fight.

MR BERGER: Thank you Chairperson.

CHAIRPERSON: And you can assume that we've read your heads of argument and that we are, speaking for myself, I am familiar with the authorities but perhaps my colleagues may want you to deal with some of the authorities that you want to refer to and I suppose that when they do so, they will indicate.

MR BERGER: Thank you, Chairperson, I do not intend to have a very long argument and ...[intervention]

CHAIRPERSON: In fact let me ask you this - the issue that you're raising is that the applications do not comply with the requirements of the Act in the sense that there were only two pages, were initially filed on the 10th May 1997 which were not deposed to by these applicants and that the full and complete applications were only submitted to the TRC on the 13th February 1998 - you have in essence, the point - the argument?

MR BERGER: That is in essence the argument, Chairperson, but if I could just by way of introduction state that what we have before us at the moment in the bundles are fifteen applications as you correctly point out, Chairperson, which were submitted only in February of 1998. Those are fresh applications, they start the proceedings from the beginning. There is no question or no reference in any of these applications, the ones that are before the Committee that they refer in some way to the applications which were lodged in May 1997. So the first point I want to make is that they are fresh applications.

CHAIRPERSON: What about the numbers? What about the numbers? Don't these numbers refer to the earlier application?

MR BERGER: If one looks at page 45, that AM number?


MR BERGER: Well, Chairperson, I don't know when that number was placed on that document.

CHAIRPERSON: But no, I'm just dealing with the notion that there's no reference to earlier applications but what I'm saying is that - did they not bear the same number that occurs in the earlier applications?

MR BERGER: I haven't checked that but I assume that they do.

CHAIRPERSON: I've checked with that, I think they do.

MR LAX: Confirmed?


MR BERGER: Chairperson, the point I'm making is that form 1, which is the requirement in terms of the Act for the launching of an application was resubmitted afresh in February 1998. If the applications and even if there is a connection between this document and the previous document, my submission is that the applications must stand or fall by what was submitted to the TRC prior to the cut off date and I understand my learned friends' heads of argument, at least we're agreed on that, that the validity or otherwise of the applications must be judged in the light of a document which was submitted timeously. Now the Committee has a copy of one of those applications and we have been told that they are all identical. Our submissions are that Section 20 of the Act sets up three jurisdictional requirements for Amnesty.

a) That it must comply with the requirements of the act, the application.

b) That is must be an act associated with a political objective

c) That there must be full disclosure.

The basis of the argument is that those are three separate jurisdictional facts, each of which has to be satisfied in order for the Committee to be in a position to grant amnesty.

The Act in Section 20 says that if the Committee is satisfied on those three jurisdictional facts then it shall grant amnesty. The use of the word "shall" is instructive because it would seem that at that stage, once those three jurisdictional facts are satisfied, then the Committee has no option but to grant amnesty, hence the use of the word "shall."

However, it's the basis of the argument that if any one of those three jurisdictional facts is not satisfied, then in our submission, the Committee does not have the power to grant amnesty.

CHAIRPERSON: Isn't there a distinction here, the two sections - the first section, Section 18 of the Act, which makes provision for the submission of the applications for amnesty and it's set out that it shall be submitted on the prescribed form within the time allowed?

The second section is Section 19 (i) which deals with what the Amnesty Committee is required to do upon receiving any application and it includes, amongst other things, the power to give directions as to the completion of that application and resubmission of that application and then calling for further particulars if the Committee deems that necessary and then there is the third section which is the section that you're referring to - that section deals with the power to grant and it set out the circumstances under which it grants. It seems - prime facie - it seems to me that the [inaudible] question is, what is the proper construction of Section 19 (i) -that seems to me to be the essential issue.

MR BERGER: Well, Chairperson, in our submission it's - the essential issue is what is the proper construction to be placed on Section 18 of the Act, because Section 18 is the starting point.

CHAIRPERSON: But clearly that Section must be read with Section 19.

MR BERGER: Okay, I have no difficulty with both sections being at the core of this particular problem and the proper interpretation of both sections. Section 19, the section that you refer me to, does use the word "upon receipt of any application for amnesty" and then talks about the Committee returning the application to the applicant and giving such directions in respect of the completion and submission of the application. It doesn't talk about re-submission of the application, the application - when an application is submitted, in our submission it must be a valid application. Now the use of the word "any", my learned friend for the applicants says in his heads of argument that any means any and therefore includes invalid applications as well. Chairperson, there is a case referred to in my heads at page 5, paragraph 16 - "Minister of Safety and Security versus Malutsi and another". Now whilst it's authority for the proposition that I make in that paragraph, it's also authority for the proposition that "any" doesn't necessarily mean "any" -the law reports, Chairperson, as you will know, are repleted cases which say that "shall" does not always mean "shall" , "and" doesn't always mean "and" and so on, one has to look at it in it's proper context. Now in the Malutsi case, if I could very briefly state what happened. Mrs Malutsi instituted action against the Minister of Safety and Security for damages arising out of the death of her husband. Her husband was shot and killed by a policeman. Initially it was alleged that that policeman shot and killed the deceased acting within the course and scope of his duties as a policeman. It became apparent just before trial that perhaps that cause of action wasn't going to be successful and another - well it was argued that it was an extension of the cause of action but the court found it was a new cause of action - was found - which said that it was negligent for the Minister or for the police to have issued this particular policeman with a gun and therefore and that negligence - the policeman had a criminal record - and therefore that negligence led to the death of the deceased. The reliance was placed - you will recall there was Section 32 of the Police Act that said if you didn't issue a letter in terms of Section 32 out one month before you issued summons, in which you set out the cause of action, you were forever time barred and your cause of action had to be started within six months - your summons had to be issued within six months. A proclamation had been issued by the Minister of Safety and Security prior to that which repealed Section 32 and included a new provision, Section 17, which said "any cause of action" and again used the word any, "which arose prior to the coming into operation of this proclamation will now be governed by the terms of this proclamation" and the proclamation gave the courts the discretion to condone non-compliance with Section 32, it was now Section 17, you could institute action within a year but even if you didn't do that, as long as it was in the interests of justice, the court could dispense with the requirements of that section, whereas previously, under the old legislation, the court - once the time bar came down in terms of Section 32, that was the end of it and the courts had no power to condone and it was argued on behalf of Mr Malutsi, that any cause of action meant exactly what it said, "any cause of action". It was found by the Appellate Division, Chief Justice Corbett at the time said the following at page 97 of this judgement, he said "The proviso which makes Section 17 applicable speaks of all such causes of action" This refers back to the opening words of paragraph 1, quote "any cause of action."

"Any" is an all embracing term and then there's a quote from N.S.J.A. "In it's natural and ordinary sense, 'any', unless restricted by the context, is an indefinite term which includes all the things to which it relates."

Chief Justice Corbett continued: "The critical question in this case is whether any cause of action in the opening part of paragraph (i) should be given an all inclusive or a restrictive meaning. Should the term be interpreted to comprehend cases where prior to the commencement of the proclamation the claimant in respect of a cause of action which arose against the police force had not complied with the requirements of Section 32 and as at the commencement of the proclamation time had run out or should it be read to restrict it's provisions to such cases where as at the commencement of the proclamation, time had not yet run out. For convenience, I shall refer to these respectively as the extensive interpretation and the restricted interpretation" and the court finally came to the conclusion that any cause of action did not mean "any cause of action" it meant any cause of action that was still valid.

I'm sorry, I'm being told that I'm speaking too fast for the interpreters, I'll slow down.

The sum total of everything that I've said up to this point is that any cause of action in that statute was interpreted in it's context to mean "any cause of action which was still valid".

CHAIRPERSON: But isn't the key question the passage that you've read, that is the word "any", given it's ordinary meaning, is an indefinite terms which refers to all that it refers to unless it is restricted by the context in which it occurs and the enquiry here must be whether, in the context in which it occurs, in Section 19, is it to be given the broad or the restrictive interpretation? Isn't that the essence of the matter?

MR BERGER: Yes, but in the Malutsi decision, unless it is qualified by it's context, was a quote back to words used by N.S.J.A. Yes, but the finding in Malutsi was as I have set out in our heads of argument, the actual wording of the section and the proclamation as a whole, did not in it's context restrict the meaning of the word "any", it did not.

CHAIRPERSON: I don't know whether you understand what I'm saying, what I'm saying is that the enquiry here is whether the word "any" in the provision in which it occurs in Section 19, is restricted. In the case that you've cited, the court found that it was not or that it was, whatever the finding was?

MR BERGER: That is was restricted.

CHAIRPERSON: It was restricted - but the court had to interpret that in the context in which it occurs.

MR BERGER: The court came to the conclusion that "any" in that case was restricted because of competing rights, because of vested rights.

CHAIRPERSON: Yes I understand that.

MR BERGER: That was the context, not the context of the legislation, but the context in which the legislation applied.

CHAIRPERSON: Is it the enquiry here whether "any" is restricted, that is what I'm trying to find out from you?

MR BERGER: Chairperson, our submission is that that is not decisive, that's what I'm trying to explain.


MR BERGER: It is correct, if I could address this problem of the Committee, it is correct that the use of the word "any" could mean, could be restricted to mean any valid application or it could mean any application however defective. Because of the argument which I make later, the submission is that it means a valid application because of vested rights which are at play but even if I am wrong on that, even if "any" means literally anything, even a scrap piece of paper with a name saying "I'm applying for Amnesty." - even if it includes that and I'm quite happy to argue it on that basis, our submission is that the requirements of Section 18 have not been satisfied. If "any" means "any" in it's widest possible sense then an application comes into the Committee, as these applications did, then the Committee can return the application and say "your application is defective, re-submit" if the word and submission of the application means re-submission, I'm happy to argue it on that basis as well - re-submit you application. The Committee did not do that. The reason why I would venture why the Committee did not do that is because an undertaking was given in the covering letter attached to my learned friends' heads of argument which said that we will provide further details at a later stage and indeed the further details which were provided were in the form of fresh applications which came in February 1998. So "any" application can mean a defective application but then the question remains is - has Section 18 been satisfied?

Now Section 18, Members of the Committee, says "Any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within a certain time period submit such an application to the Commission in the prescribed form." My learned friend argues at page 12 of his heads of argument that the word "shall" in Section 18 refers to the time period and not to the prescribed form. I submit that that is clearly wrong if one de-constructs the wording of Section 18 it is quite clear that the word "shall" governs both the time period and the submission of the application because if the word "shall" doesn't govern the submission of the application, the section would read "any person who wishes to apply for amnesty - something - submit an application to the Committee in the prescribed form." That "shall" as a matter of English grammar can only be read as governing both the time period as well as the submission of an application, it cannot be read in grammar any other way other than that.

Now, the prescribed form was promulgated, some forms seem to have six pages and some forms seem to have four pages but I would suggest that just depends on the printer that was available at the time, but the contents is identical. The regulation promulgated in terms of the section makes it clear again in Section 2.1 that it - well it says "an application for amnesty in terms of Section 18 of the Act "shall" be made in the form of form 1 of the annexure.

Our submission is that the purpose of the form is to solicit information to determine whether prima facie an applicant is entitled for amnesty and there are certain requirements set out in the form. One is that is must be sworn to or solemnly affirmed before a Commissioner of Oaths, that's at the top of the form and at the bottom of the form there's place for a deponent to sign and a Commissioner of Oaths. It's suggested by my learned friend in his heads of argument that deponent doesn't mean deponent, anybody can sign on behalf of a deponent but, with respect, that cannot be right when the legislature requires a document to be submitted under oath such as an affidavit. If there's an affidavit that has to be submitted in certain proceedings, the deponent to the affidavit must be the deponent who has the knowledge contained in that affidavit. If I want to buy a house and I have to depose to an affidavit, I personally must depose to that affidavit to state that certain facts are true and correct.

CHAIRPERSON: What happens to a perpetrator who since the killing that he's been involved in has since turned blind and lost both his hands?

MR BERGER: Then he goes with an assistant to a Commissioner of Oaths, he is asked do you swear that the contents...[intervention]

CHAIRPERSON: Will he sign?

MR BERGER: Will he sign?

CHAIRPERSON: That's what I'm asking you.

MR BERGER: If he is totally unable to make any mark with his feet or with his mouth or anything?

CHAIRPERSON: He's lost both hands and he is blind.

MR BERGER: Either he will make a mark some other way or the person mandated by him will make a mark in front of a Commissioner of Oaths and it will be recorded that this mark or this signature was made in my presence before a Commissioner of Oaths, the deponent acknowledging that the person who makes the sign is mandated to do so. In other words the deponent to the affidavit, the person whose affidavit it really is, will have to indicate in some way to the Commissioner of Oaths, that this is really his affidavit but he is unable to sign and therefore someone is signing on his behalf.

CHAIRPERSON: I want to illustrate to you that then there were the circumstances under which a person, although he may well the perpetrator, for whatever reason he may not be able to sign but detract from the fact that that application is made by that person.

MR BERGER: But Chairperson, that is a far cry from what has happened in this case.

CHAIRPERSON: Well it's to illustrate the proposition, what happened in this is a different matter.

MR BERGER: But Chairperson, the point is that it has to be affirmed to before a Commissioner of Oaths and so therefore even the blind person with no hands has to appear before the Commissioner of Oaths, that's the point that I'm making.

Now, the letter that came ...[intervention]

MR LAX: Sorry, Mr Berger, I was just confirming - this is totally beside the point but the normal procedure in this situation put to you would be that the Commissioner of Oaths themselves would actually record a special attestation clause saying they have spoken to the person, they confirm that although there's no mark, he confirms the contents of the affidavit.

MR BERGER: Yes, he would have to be present?

MR LAX: Yes, no obviously.

MR BERGER: The covering letter which enclosed the applications in May 1997 is purportedly an application on behalf of seventeen people. It says there that you will notice that only the first and last pages of the application form have been completed meaningfully and the answers to the rest - paragraphs 8 - 12, all read "will be submitted at a later stage. The reason for this is that we are not in a position to contact our clients personally before the cut off date. That is also the reason why the forms have not been attested to, we hope however to provide the outstanding information to you "deesdags" Within a couple of days, I assume that means.

MR LAX: It just means in due course.

MR BERGER: Thank you. One of the people who it was said that "we are not in a position to contact our clients personally" was Mr Victor Mthembu. He's recorded there as number as number 13. His very application was signed on that very day, the 9th May 1997. So, as a matter of fact, we know that that is not correct in relation to Mr Victor Mthembu.

The second point is that Mr Lukhozi, Thomas Lukhozi, had an application form submitted, he's number 14 on this list and we now have a statement from Mr Thomas Lukhozi saying that when he was approached to make an application for amnesty, he refused, he did not want to make an application for amnesty.

For all seventeen people, the first and fourth pages were identical and I set out in heads of argument exactly what was there, there was just a name and address, an age, a case number, a charge and a statement that no civil proceedings were pending.

The submission that we make is that it is clear that as at 30th September 1997 which was the cut off date, which was some four months after the applications were faxed through to the TRC offices, applicants 1 - 15 had failed to submit their applications in the prescribed form.

In the case referred to at paragraph 12 of the heads of argument, Williamson versus Schoon, Judge Nafsa was dealing with the question of whether or not the court had jurisdiction to stay some civil proceedings pending the outcome of Craig Williamson's amnesty application. 19.6 is a sub-section of 19 and 19.6 says "If the act, omission or offence, which is the subject of an application under Section 18, constitutes the ground of any claim in civil proceedings instituted against the person who submitted that application. The court

hearing" - and then I'll summarise the court hearing that claim - " may in it's discretion stay the civil proceedings pending the consideration and disposal of the application."

The section specifically talks about someone having submitted an application in terms of Section 18 and Judge Nafsa found that the court had no jurisdiction to entertain a claim for stay of proceedings until such time as a proper application had been made in terms of Section 18 and at page 1071 b - c of the judgement, Judge Nafsa said "It is important to note that in terms of Section 19.6 and application for amnesty, with the required particularity is required to be lodged before a court is called upon to exercise it's statutory discretion. No provision is made for a stay of proceedings before an application for amnesty has been made."

If that is so, Chairperson and Members of the Committee, that the court has no jurisdiction to stay proceedings until an application for amnesty has been made or as Section 19.6 expressly says "the person who submitted that application or above that an application under Section 18 has been made". In my submission, that judgement is authority for the proposition that an application is only properly made in terms of Section 18 when it is submitted within the prescribed time period in the prescribed form and contains the particularity required by the prescribed form.

Now obviously my learned friend pointed out in his heads of argument, the prescribed form says it must be in capital letters and therefore does it mean if it's not in capital letters that that's not proper compliance?

There's a whole string of cases. Sometimes the Appellate Division goes one way, sometimes the Appellate Division goes another way but the thrust of the cases is that if compliance is prescribed, if it's preemptory, that means substantial compliance. Sometimes the cases put it differently, they say well, let's not talk about substantial compliance or exact compliance, let's look at what is requested and how far from what is requested has been furnished. That's another way in my submission of saying look for the substance, has the substance been complied with.

CHAIRPERSON: Let me put this to you. You see one of the problems that the nation faced at the time of the promulgation of the statute was that there had been massive gross violation of human rights. Victims had no idea how and when it occurred, they didn't know the truth. The primary purpose of the Act is to uncover the truth and in doing so it encourages the perpetrators to come forward so that the victims can learn if the truth is spoken - what happened to their loved ones, the circumstances under which they died. Should we not find an interpretation that would be consistent with this policy of the Act? An interpretation which would be consistent with the policy of the Act, ensuring that perpetrators come before the TRC rather than obstructing them from coming to the TRC. Isn't that the policy which one should have in mind in trying to give meaning to these provisions?

MR BERGER: Chairperson, there are competing considerations as far as the victims and the perpetrators are concerned. It is a major purpose of the Act to uncover the truth.

CHAIRPERSON: Well the victims' interest is to know the truth that's one of their interests and they are here today, I suppose, precisely because of that.

MR BERGER: Chairperson, if I can develop an argument, my point is this - that is a major purpose of the Act, but the Act sets certain parameters - for example, if a perpetrator were to come today to say "I would like to apply for amnesty and appear before the TRC and I can give vital information about some massacre that has not yet been - the truth about which is not yet known." Would the TRC and would the Amnesty Committee entertain that application even though it is late and I submit not because the Act says "you shall submit your application within a certain time". The offices of the TRC were kept open, I recall until midnight on that day so that applications could be submitted timeously.

Chairperson, I'll come back if I might to the question of competing interests but there's a judgement ...[intervention]

CHAIRPERSON: Perhaps you should just deal with that now so that we can get on with your argument - deal with the competing interests now, unless it will put you off the track?

MR BERGER: I'll come back to where I was and I'll proceed to competing interests, Chairperson.

CHAIRPERSON: Next, the competing interests?

MR BERGER: I was leaving that for the end of my argument but I can deal with it now, Chairperson.

CHAIRPERSON: Well with whatever suits you.

MR BERGER: No, I'll deal with it now, Chairperson, it seems to of concern. The granting of amnesty in terms of the Act was a constitutional requirement. I don't think I need to go into the history of the compromise that was reached at Kempton Park, everybody knows about it. In the interim constitution, it was recorded that there shall be amnesty and the constitution said "Amnesty shall be granted" - let me start at the beginning of the sentence: "In order to advance such reconciliation and such reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, parliament under this constitution shall adopt a law determining a firm cut off date which shall be a date after 8 October 1990 and before 6 December 1993 and providing for mechanisms, criteria and procedures including tribunals, if any through which such amnesty shall be dealt with at any time after the law has been passed." The constitution said that an act of parliament must provide for procedures and criteria through which amnesty can be granted because amnesty was not going to be granted to any one and everyone, it had to be granted in terms of certain criteria and in terms of certain procedures - that's what the constitution required so it was prior to the start of the work of the TRC, even prior to the Human Rights Violations that the constitution already contained an imperative that there shall be amnesty but subject to procedures and subject to criteria.

That there is a trade off between truth and justice was recognised and in fact has been recognised by the Constitutional Court in the AZAPO case, AZAPO versus President of the Republic of South Africa - it's referred to in my heads of argument. The Deputy President, Justice Mohammed as he then was, said the effect of an amnesty undoubtedly impacts on very fundamental rights. All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection of dignity and their right not to be subject to torture of any kind. When those rights are invaded, those aggrieved by such invasion have the right to obtain redress in the ordinary courts of law and those guilty of perpetrating such violations are answerable before such courts both civilly and criminally and amnesty to the wrongdoer effectively obliterates such rights.

Now my learned friend says there will be no prejudice to anybody if these defective applications are allowed to stand. That is not correct. Meta Molete will not have the right to sue - Meta Molete, Mrs Pauline Mbatha will not have the right to sue if the applicants are granted amnesty.

CHAIRPERSON: Isn't the point that it's being made at this -because the ruling that these applications comply with the Act, you should know that, does not mean that the applicants are entitled to amnesty. The question whether they are entitled to amnesty is a separate matter altogether which will depend upon whether the Committee is satisfied, amongst other things, that they have made a full disclosure and that in addition to that, what they did is associated with a political motive - it is in that limited sense that I understood the prejudice to be referred to.

MR LAX: You see, Mr Berger, what you're asking us to weigh up here is, not the prejudice that would accrue when the application is granted, or not - when the application for amnesty is granted or refused - but rather the prejudice that might or might not accrue at this stage in terms of us allowing the applications in or not, in other words, whether we would countenance them or not. That's a very subtle and completely different issue.

MR BERGER: It's, with respect, not completely different and the reason is the following. I've submitted that Section 20 which sets out three jurisdictional requirements, that all of them must be satisfied before amnesty can be granted. Section 3.1 (b) of the Act says under the heading "The objectives of the Commission - the objectives of the Commission shall be to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by (b) facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of the Act." So it's clear that complying with the requirements of the Act is an essential prerequisite before amnesty can be granted.

MR LAX: Mr Berger, what we're asking you to address us on in essence and this is where some of us have a concern and that is in arriving at Section 20 and the three jurisdictional requirements inherent in Section 20, should we not read that all together as the process by which the application comes to us i.e. Section 18 and Section 19 because it goes further than just Section 20. There's an additional process in terms of which even when they are received we're still entitled to ask for further particulars and a whole range of other information gathering and investigative tools, if you like. So what I'm asking you in essence is this, should we not be drawing a distinction between a number of different things here. On the one hand the submission of the application, add to that Section 19 which provides a mechanism for giving directions on completion or submission and for further particulars. After that point you then have an application. That application is then in and then there's a further opportunity for further investigation and further particulars which is then inherent in the other sections after that. So what I'm putting to you or asking of you is should we not be reading a consistent process in 18 and 19 which precedes the jurisdictional factors inherent in Section 20?

MR BERGER: Mr Lax, unfortunately you're now taking me out of vested rights and into something else, but I'll answer that and then I'll try and work out where I am.

MR LAX: Maybe leave it hold and when you get to it you can answer it. It's okay, I don't want to take away from your argument.

MR BERGER: No, no, it's important for me to say this. The requirement of 20(a) that the application comply with the requirements of the Act, is a completely different requirement from the requirement of full disclosure. The requirement of full disclosure goes to further particulars and evidence before the Committee - that's what full disclosure is directed at but 20(a) is something different to full disclosure. It's something different to the particularity that the Committee can request at a later stage. If I can just go back to the vested rights and then I'll finish off with this.

The AZAPO case argued or the applicants argued in AZAPO "you can't deprive us of our rights in the civil courts and the criminal courts by granting amnesty because that would be contrary to Section 22 of the Constitution" and Justice Mohammed recognised this competition in the passage I've just read and also at page 683 where he said "Every decent human being must feel grave discomfort in living with a consequence which might allow the perpetrators of evil acts to walk the streets of this land with impunity, protected in their freedom by an amnesty immune from constitutional attack, but the circumstances in support of this course require carefully to be appreciated."

What I'm submitting to the Committee is that, yes it's correct that if the applications are allowed in, it doesn't necessarily mean the applicants will get amnesty, that is clear, but if the applications are allowed to proceed then they can only proceed on the basis that they comply with the requirements of the Act and then what is left for the Committee to be satisfied on is (b) and (c), whether the Act associated with a political objective and whether there has been full disclosure and that will relate to the further particulars and to the evidence before the Committee but once the applications are allowed to proceed for example Mr Mthembu's application. Mr Mthembu's application complies with our requirements of the Act so he has satisfied the one jurisdictional fact already. Once the other applications come in, they have satisfied the one jurisdictional fact. Mr Mthembu now has to satisfy full disclosure, those are all his affidavits and what he said before the Committee and the requirement of a political objective. So there is a real and substantial prejudice which accrues to the victims if the applications are allowed to proceed because then jurisdictional fact (a) has been satisfied and the applicants are one third of the way closer to amnesty.

If one accepts that there are vested rights at play here then Sections 18, 19 and 20 must be construed restrictively. I'm at paragraph 16 of my heads of argument. The Appellate Division in the Malutsi case said we can interpret 'any' to mean any cause of action which arose but then we must recognise that once the six month bar has fallen in actions against the police under Section 32 of the Act, the police have a vested right not to be sued and you can't take away that vested right unless that is the only possible meaning that you can give to the legislation. The Appellate Division said, no, we can construe the legislation restrictively so that it doesn't take away vested rights and so we will construe the word 'any' to mean any application that has not yet become time barred.

MR LAX: Just on that issue, what about the vested rights of the applicants? Why should we lock the door on them and interpret that so as to take away their vested rights to have their applications heard?

MR BERGER: Because, Chairperson, they had the right in terms of Section 18 of the Act to apply for amnesty in the prescribed form. They had from - well from 1996 they had the right to apply for amnesty but even if one leaves that out of the picture and we know that they were intending to apply for amnesty because the judge says so in his judgement, he says "I'm told you're intending to apply for amnesty." We don't know which of them were intending to apply, all of them or some of them but at least that was mentioned, so in 1994 the question of amnesty was considered. The form was promulgated in 1996, people were in jail, people were in contact with their lawyers. In 1997 in May applications were put in, the lawyers knew that there was a problem and the applicants dilly dallied from May until January and it was only after a letter from the TRC in November of that year saying we still don't have any information from you that the fresh applications were re-submitted. So, yes, the applicants had the right to apply for amnesty but it's their own delay which has put them in the position which they are in today. Mr Mthembu applied timeously, he exercised his right and by doing so he infringed upon the rights of the victims. Well, he had that right and he did it and the law allows it but the law also says if are vested rights and just like the police acquired a vested right when the Section 32 letter was not served timeously, so the victims acquire a vested right - I now have the right to sue civilly because you, Mr Applicant, have not complied with the provisions of the Act, you are late and you are now not entitled to be immune from civil and criminal litigation.

At page 98 of the Malutsi judgement, Chief Justice Corbett said at (h) "Having given the matter anxious consideration" in other words weighing up the respective rights, competing rights, "I have come to the conclusion that there is insufficient indication of a legislative intent to warrant interference with a vested right of the Defendant, Police Force, in his favour the expiry term provided by Section 32 has run it's course. I therefore opt for the restricted interpretation of Section 12.2 (i) of the proclamation."

It follows that the appeal must succeed. Our submission is that there is insufficient indication in the statute to warrant an extensive interpretation and the reason that we say that is because we must go back to Section 18 which says that you shall submit an application in the prescribed form and it's coupled to a time period, that shall governs both and they are linked. If one takes out - if one reads it - shall within twelve months, if one reads that as the prescribe period, submit such an application to the Commission in the prescribed form. If one looks at the way that sentence has been constructed, the two commas are inserted to provide for an extended period and extended prescribed period but if that extended prescribed period was not there - let's say that the Act had from the beginning set the 30th September as the cut off point, the legislation would read that any person shall on or before 30 September 1997 submit such an application to the Commission in the prescribed form - it's an imperative and then there's Section 21 (a) as well as Section 3 (i) (b) which says that the requirements of the Act are a requirement for amnesty. The question which is raised is then why, why is that there. One then has to look at Section 19 and the purpose of having an application under oath in the prescribed form is to enable the Committee to then conduct it's investigations with evidence now before the Committee. The Committee could even grant amnesty on the basis of certain applications without hearing oral evidence because there's written evidence and certain investigations can be undertaken.

There's a case that, that I wish to refer to, which is not in my heads of argument. It's the case of S. Bothma, B-o-t-h-m-a and Son Transport (Pty) Ltd. versus the President of the Industrial Court and others, 1988/3SA/319 Transvaal. The judgement of Judge Myburgh, the Judge Myburgh who is the present President of the Labour Appeal Court. It was a labour case, it dealt with an application for interim relief in terms of Section 43.4 of the old Labour Relations Act. Section 43 (ii) of that Act said that any party to dispute who applies under Section 35 for the establishment of a conciliation board in respect of a dispute may, the use of the word there was "may", at the same time or within seven days apply, here it was to the Minister but it came to the Industrial Court for an order in terms of 43.4. The regulations there for Conciliation Boards that there was a prescribed form and it had to be submitted and the dates had to be clear and that form had to be signed. Reference was made in that case or by counsel for the applicant to the Maharaj decision, the precise passage that my learned friend relies upon in his heads of argument, but the facts of the case were very simply that the application for the Conciliation Board was made on the 3rd September - I beg your pardon - was made on the 4th September and the application for relief in terms of Section 43 was made on the 3rd September, in other words, one day before instead of at the same time or within seven days. Counsel for the applicant argued that well within seven days could mean within seven days either way and the court said no, it can't, even though there's just one day difference, the legislator has said you do the one and then if you want to do the other, it comes afterwards. That was how the "may" was interpreted and the application was struck out because it did not comply with the provisions of Section 43 and the reason for that was you have to apply for a Conciliation Board first, you have to get the conciliatory machinery in progress and once you do that you can then apply to the Industrial Court for relief and even though, in that particular case, there was only one days difference, the court said no, you've done it incorrectly and the legislature then implied the - the sanction of the legislature is if you don't do it properly, you forfeit your relief in terms of Section 43 (iv) of the Act.

MR LAX: I've heard you on that but just maybe you can help me then. This is a real situation that faced the Commission -on the last day of the cut off date and several thousand applications come in, many of which are defective. On the interpretation you're wanting us to apply they're all out because there is no other time for them to be rectified, the cut off date is passed.

MR BERGER: That's why I argued earlier that substantial compliance is for the purposes of this form and many other forms which have preceded it in the case law, substantial compliance is sufficient, but if one has look at paragraph 13 our heads of argument, we set out the major points which were not canvassed in the applications such as the Acts in respect of which amnesty was sought.

MR LAX: You see, my point is simply this, how could Section 19 (i) be of any use to anybody, okay, if we have to adopt the interpretation you have just asked me to adopt. In other words, unless those forms were substantially completed, how could Section 19 (i) (b) be contemplated at all then because unless they were substantially completed and substantially complied with, why would there have been the need then for further completion, further directions, even further particulars? This is before Section 23, okay? Now this is before the subsequent, I mean, 23 okay?


MR LAX: It's before that other process of checking, as you put it, full disclosure.

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.

CHAIRPERSON: It does not give the Minister the powers, for example to say "in your application" one, it must be in capital letters, if it is not in capital letters then you're out of the process.

MR STRYDOM: It doesn't, but it does give the Minister powers...[intervention]

CHAIRPERSON: If it is not deposed to before a Commissioner of Oaths then you're out of the process, requirements which are not contained in this section itself.

MR STRYDOM: No, it doesn't give any other powers but to prescribe to prescribed form. Now obviously that would be open to argument, what the meaning of prescribed form is if the Minister will have the powers to then have certain things added in this form but my submission is that if these powers would have been so wide or the intention was to make it so wide then to add under oath and things like that in block letters, that would have been in the Act itself, so those powers are actually limited and the powers only to prescribe the form, the kind of form, that would be the submission.

What I was saying is that the latter portion of the section is directory and the reason why I'm saying that is - or shall I just go one step back - now the test is to determine if a certain section is preemptory or directory, one would have to look at the intention of the legislature who will have to look at the Act as a whole and the purpose of the Act wants to serve and all other things like that and if one does that, one will have to have regard to Section 19 and Section 19 creates the procedure whereby any application, I place emphasis on "any" application may be returned to the applicant and give such direction in respect of the completion and submission of the application as may be necessary or request the applicant to provide such further particulars as it may deem necessary. Now the purpose of that section is specifically to deal with applications that has not adhered strictly to the prescribed form, that is my submission and therefore, I say that that second part of Section 18 is only directory and is not preemptory.

CHAIRPERSON: Let us assume that we are with your proposition that is what the section stands for. Now let's assume the Amnesty receives a letter, handwritten letter, you know by an applicant who is in prison who says, you know, I want to apply for amnesty in respect of a,b,c and d and signs the letter to the Committee. Is it your submission that the Amnesty Committee will receive that - that will be an application within the meaning of the Act.

MR STRYDOM: I would say yes.

CHAIRPERSON: Okay, now - and then you're saying that then the Act says that you, in terms of Section 19 (i), the TRC would then give directions to this applicant and say here is the form, complete this form and then submit it again?


CHAIRPERSON: Now, what is to become of that application, the first letter?

MR STRYDOM: The first letter will obviously stand but eventually if, say for instance after the Committee asks for further particulars and asks for a proper form to be completed, nothing comes of that and then obviously the argument would be that requirements was not met because then no further steps were taken but in this instance, the fact of the matter in this case, applications were made and the form was used although not completed form and not properly signed and deposed to, but then subsequently and in terms of Section 19, further particulars and more details were asked and it was submitted and therefore I would say that there's been compliance with this section, Section 19 and therefore I would say there's compliance with Section 20 in that the application compliance with the requirements of this Act because Section 21 (a) would obviously also refer to Section 19 and if there's compliance to Section 19, which I submit in this case there has been, then there's been compliance with the Act.

I also make the submissions in my heads ...[intervention]

CHAIRPERSON: Just before you go any further, when this section says the application - the Committee may return the application to the applicant, what is the effect of returning the application? Is the effect of returning the application that there is no application before the Committee once it is returned?

MR STRYDOM: No, I won't go along with that - may return the application - does not mean that, obviously a copy would be kept by the Committee.

CHAIRPERSON: Well it doesn't say return the copy of the application it says return the application, I suppose what was submitted to the Committee is then returned to the applicant so once it is - the act of returning, what does that mean? Does it mean there is no application now until the directions given by the TRC are in regard to the completion and submission has been complied with?

MR STRYDOM: I would go along with that because I will say what I said previously, if that application is returned and nothing is done thereafter, obviously that would mean that there is no application before the Committee.

CHAIRPERSON: Well isn't therefore the proposition then correct that until such time that once it is returned, there is no application before the Amnesty Committee? There will only be an application once it's complied with the direction and if this direction, as in this case, were only complied in 1998, that's when the application was made which was hopelessly out of time?

MR STRYDOM: My submission is if there's an initial application even though it's defective, there's an application and then that application has been accepted by the Committee, but the Committee cannot follow up on that but to act in terms of Section 19 (i), so if there's an action in terms of 19 (i) that means that the application has provisionally prima facie been accepted and then there's certain acts that follow after that and this is what happened in this matter.

CHAIRPERSON: I was just concerned about what meaning one has to attach to the return. If you return the application does it mean that there's no longer any application until the direction has been complied with?

MR STRYDOM: The fact of the matter - initially there was an application but a defective application but my submission is there is still a defective application, that doesn't fall away, the mere fact that that specific document is now being returned doesn't mean there's not a defective application - that remains in place - but after return and after the other steps have been taken, after the further particulars have been provided and at the form completed properly, then it becomes an application in terms of Section 21 (a) which meets the requirements of the Act and my submission is that is what happened here.

CHAIRPERSON: Because I heard you say that until the properly completed application comes to hand, there's no application and if that's the argument then there's no application.

MR STRYDOM: No, I still maintain that there's an application but a defective application.

CHAIRPERSON: I understand what you maintain but I want your submission. Does it matter that the legislature here does not say the - does not talk of rejecting the application but rather it talks of retaining the application?

MR STRYDOM: It makes a difference because if there's an outright rejection and the applicant has run out of time that would mean that there would be no application but a return means that there has been an application but the fact of the matter is also in our instance, these applications weren't returned so the original applications were kept and what was asked is just further particulars and completion on that applications already in the possession of the TRC and in regard of which applications numbers were allocated already. In fact, if I can refer to the letter next to my heads of argument, there was already - there must have been talk about a hearing already as early as the 15th July 1997 because there was already at that stage talk about that hearing should take place on the 11th August 1997 before the cut off date so the Committee at that stage would have accepted those applications albeit not complete applications, but those applications were in fact accepted at that stage and then subsequent to that there was some questions asked in terms of Section 19 (i).


MR STRYDOM: My further submission is that even if Section 18 is left aside for the moment and one interprets ...

CHAIRPERSON: Yes, proceed?

MR STRYDOM: My further submission is that on Section 19 standing on it's own and then purely on interpretation issue, one must read any application for amnesty to also mean any - meaning also defective applications and there's no time period or limit to, connected to Section 19. So the fact of the matter is that any application may be returned or further particulars can be asked or directions given in respect of completion etc and this is exactly what happened, that "any" cannot only refer to applications made on the prescribed form and as I've put in my heads, for that matter, applications assigned and attested to on the prescribed form. Otherwise one would have expected the legislator to add here "upon receipt of any application in terms of Section 18" or "upon receipt of the application in the prescribed form for amnesty the Committee may return" but reference there is to any application. If an Act is interpreted, each word must get..[intervention]

CHAIRPERSON: The word application is not defined in the Act, is it?

MR STRYDOM: No, the word application is not defined in the Act as far as I'm aware and the rule of interpretation is quit clear that each word must be given it's ordinary grammatical meaning and "any" as I stated in my heads is a wide term and means exactly what it says, it means any.

There are certain circumstances under which the grammatical meaning cannot be given to a word and I can think of possibilities. Say for instance you have ambiguity or some absurdity, then obviously that grammatical meaning cannot be given to that word but in this instance that cannot be argued, any application is not unclear, it's very precise and clear and therefore I would submit that Section 19 (i) as I can call it that, saves the day for the applicants.

CHAIRPERSON: Isn't the key question here, I mean we've been sitting here listening to both of you argue, but isn't the key question here this - when the TRC receives an application from an applicant which is defective in one way or another, does the TRC have the power under the Act to call upon the applicant and say "we've received your application, it is defective in these respects, would you please remedy these defects" isn't that what we're here about?

MR STRYDOM: Well, that's exactly what 19 (i) says.

CHAIRPERSON: So is your submission that the Section 19 was designed to do precisely just that?

MR STRYDOM: That is my argument.


MR STRYDOM: One must also look at the background, we will have lots of people, lay people that want to apply for amnesty and certainly, I think that section was legislated exactly for that purpose, to assist people that put applications before the Amnesty Committee, that is defective, maybe they don't know exactly how to fill in that form, how to go about it and maybe they don't even know the meaning of deponent or know how to swear before a Commissioner of Oaths and they get other people to fill in their documents and these documents are sent. So exactly for that purpose, that section was added, that's my submission.

Mr Chairman, then I set out my argument in more detail in my heads of argument but I think I will have to say something about the prejudice I refer to on page 16. I make the submission "there is no prejudice to anybody if the applications are accepted in an incomplete form"

CHAIRPERSON: When it comes to prejudice, here is the problem. If the Committee rules that the applications comply with the Act, the prejudice to the victims is that, as I understood the submission, the applicants are at least one third down the road to being granted amnesty. Still the question would still be decided whether they've made full disclosure and whether they had the necessary political motive, that's the prejudice on the one side. Now on the other side, if the applications are refused at this stage, that's the end of the matter for the applicants, that's the prejudice.

MR STRYDOM: That's the prejudice for the applicants.

CHAIRPERSON: So is it your submission that if one weighs the prejudice here, the one that the applicants are likely to suffer ..[inaudible] those, the prejudice that the victims would suffer if the application is to be granted?

MR STRYDOM: So I would submit that the prejudices are in fact even with the balance so there cannot be a restrictive application from the viewpoint of the applicants but similarly, the same can be said from the victims, so one will have to interpret the Act as it stands and without giving it a strict interpretation or otherwise and my submission then is quite clear what the intention of the legislature was.

We don't even have to deal with the intention of legislature if do strict interpretation of the Act and the Act is clear. Only thereafter, if it's unclear, then one will have to look at the intention of the legislature. The intention of the legislature only comes into play when Section 18 is investigated to establish if the clauses there are preemptory or directory but if one looks at Section 19 is clear and then in terms of interpretation rules one does not even look at the intention of the legislature. Only if it's unclear, one would look at the intention of the legislature.

Mr Chairman, I should also deal with the application of Mr Khubeka. Now Mr Khubeka is actually very much in the same situation as the other applicants because Mr Khubeka's application, original if I can call it defective application, was also filed initially. The Committee did not ask further particulars and further information in regard to his application but his application was also made at that stage. My submission is that even at this late hour, if the Committee asks further particulars, that still can be granted but the fact of the matter - he made an application just like the other people initially. There's some unfortunate situation because what in fact happened was that there was an indication that he made and he still maintains, I had another discussion with him, that in fact filled in a proper form, he gives me the name of the person that works for the TRC we gave this form to but up to now this document cannot be located but the fact of the matter is and I want to argue that he can still rely upon the original application, albeit defective, but that still can be cured by providing further particulars if asked to give further particulars.

CHAIRPERSON: Well, I was under the impression and that is how I have always understood your argument and that is when these initial applications were submitted on the 10th or the 9th May 1997, there were directions, whether you construe them a directions or requests or whatever, that further information had to be furnished and that was in relation to all those individuals who were named in that covering letter which includes Mr Khubeka.

MR STRYDOM: I just want to check, as far as my memory serves me, we did not receive a further request in regard to Mr Khubeka and the reason for that is we at that stage stopped acting for Mr Khubeka because Mr Khubeka, on his own accord, went ahead and applied for ..[intervention]

CHAIRPERSON: No, no, I mean the original one, after the - you see the applications were preceded by a discussion between the attorney, the erstwhile attorneys of the applicants and -Mr Mpshe I think it is.


CHAIRPERSON: Okay, that's when the letter of the - I think it's some time in November - it was.

MR STRYDOM: Mr Chairman, you're right.

CHAIRPERSON: Yes, which called upon the - which reminded the applicants that information which they had undertaken to furnish as at that date, not yet been furnished and there was a request that the processing of this application is much more difficult.

MR STRYDOM: Yes, that is indeed so, I think the letter is added to my - next to my heads of argument and Mr Khubeka's name was included there but unfortunately at that stage, the legal team was under the impression that he provided another application and he didn't want this legal team to act for him any further. So it's an unfortunate situation that those particulars were not granted but I still say that that situation can be cured by granting that information at this late hour.

CHAIRPERSON: Well, what is the position now? Is the position that Mr Khubeka has subsequently submitted an application, duly completed?

MR STRYDOM: According to what he tell me ...[intervention]

CHAIRPERSON: Are those your instruction?

MR STRYDOM: Those are my instructions, but unfortunately, that application cannot be located and we can even..[intervention]

CHAIRPERSON: Well has someone looked for it?

MR STRYDOM: I asked Mr Wessel Janse van Rensburg to look for it but my information is that he cannot find it.

CHAIRPERSON: But where is it?

MR STRYDOM: Well, Mr Khubeka did not keep a copy but he had given it to a representative of the TRC.

MR BRINK: Mr Chairman, my information is that Mr Khubeka in the first instance submitted and HRV statement, he did also submit a statement, an "application" incomplete but although it is said that he and I have no reason to doubt what he says being the truth, no further Amnesty Application completed form has been located in the offices in Cape Town but I will certainly investigate when I get back.

CHAIRPERSON: Okay. In view of the uncertainty as to whether or not Mr Khubeka did submit an application, I do not know whether it would be proper to deal with his application at this stage. Now, shouldn't we stand his application down and then perhaps investigate whether there is another application that he completed?

MR STRYDOM: I think I should argue on the basis that that other application cannot be located and if that cannot be located the fact of the matter is that he initially applied with the other people, the other applicants and that defective application and subsequently further particulars and other documents ...[intervention]

CHAIRPERSON: Which called upon to ..[inaudible] and has not [inaudible] so what do we do?

MR STRYDOM: I would submit that that's not a bother, it still can be provided.

CHAIRPERSON: That's why I was saying to you that shouldn't his application stand down so that you can deal with those difficulties?

MR STRYDOM: I accept that.


MR STRYDOM: The other point I want to make, it's all contained in my heads of argument - the crux of the matter is that I rely on the interpretation of Section 19 (i) so that's basically my argument on behalf of the applicants.


MR STRYDOM: Mr Mbatha creates somewhat of a problem, he cannot be located and I ...[intervention]

CHAIRPERSON: Mr Mbatha cannot be located?

MR STRYDOM: He is in Natal somewhere that's the only information I have, I don't know where in Natal.

CHAIRPERSON: So he's not even before the Committee?

MR STRYDOM: He's not here, he hasn't been here since the beginning of the hearings, he's apparently critically ill.

CHAIRPERSON: Yes, well shouldn't we then strike his application off the roll?

MR STRYDOM: I would ask that that also stand over until the next hearing.

CHAIRPERSON: Well, if he's not here we have no idea whether he will be coming to the Committee at all in future.

MR STRYDOM: Well the situation may be that ...[intervention]

CHAIRPERSON: Well if application is struck off the roll, the matter can always be reinstated as and when he becomes available.

MR STRYDOM: Well in that situation, yes, I thought finally struck off the roll means a final situation. If it's not a final - if he's just struck off the roll temporarily.

CHAIRPERSON: What it is that it is removed from the roll, it's not that it is withdrawn, it is just removed.

MR STRYDOM: In court terms struck off - if that's the situation I can go ahead ...[intervention]

CHAIRPERSON: Well he can be reinstated, both of them require further investigation in so far as we're concerned. Mr Brink, what is your attitude?

MR BRINK: Yes, I have no objecting to that but it seems to me applicants will not be heard today, none of the present applicants and in that event my suggestion would be in support of Mr Stydom's original submission. If those matters just stand over till the next time, if they're not here, things haven't been resolved they can get struck off the roll then, that's my suggestion.

CHAIRPERSON: Well Mr Khubeka is here?

MR STRYDOM: He is in fact here.

CHAIRPERSON: Okay, Mr Berger is he here?


CHAIRPERSON: Okay, you see the difficulty is with Mr Mbatha who is not here. So why should we have before us his application if he's not before us here? Mr Berger, what do you say with regard to those two applications?

MR BERGER: Chairperson, I have no feeling either way on Mr Khubeka - Mr Mbatha that is.


MR BERGER: As far as Mr Khubeka is concerned, his application isn't before the Committee either. As I understood the position from last week, the understanding was that he wasn't before the Committee. There are no papers of his before the Committee, that's certain.

MR STRYDOM: I just - in fact one of the documents faxed to us as an example of the defective applications initially filed is one in relation to Mr Khubeka. I have it in my possession, in fact it's a full document, six page document on behalf of Mr Khubeka, so I have such a document.

MR BERGER: One of the defective applications, that is what my learned friend is referring to?

MR LAX: Correct.

MR BERGER: Well I'm prepared to argue on that basis.

CHAIRPERSON: What I wanted to find out is whether, shouldn't these matters stand over because of these problems?

MR BERGER: Well Mr Khubeka's application can be dealt with together with the other applicants because we are concerned with the original defective applications and we are told that he made one.

CHAIRPERSON: But he, according to Mr Strydom's instructions, he completed an application subsequently.

MR BERGER: No, Mr Strydom is not saying that.

MR LAX: He is.

CHAIRPERSON: He's saying that.

MR STRYDOM: In fact, he tells me and it's beared out by the fact that in that other statement of his to report a gross violation he in fact said that "I've already applied for amnesty but I'm not sure if the documents are properly filled in because I didn't have the knowledge" or something like that but it was said.

CHAIRPERSON: Very well, yes, finish off your argument. Do you have any further submission to make?

MR STRYDOM: No further submission.

CHAIRPERSON: Yes, alright. It doesn't effect you does it?

MS PRETORIUS: It doesn't effect me, Chairperson.

CHAIRPERSON: It doesn't effect you. Mr Malindi?

MR MALINDI: Chairperson I shall save myself with the argument presented by Mr Berger and I have nothing to add.


MR BRINK: I have no submissions to make.

CHAIRPERSON: Do you have any reply?

MR BERGER: Chairperson, the first point that was raised that I want to deal with is that Section 18 doesn't give the Minister the power to set conditions. With respect, that is not correct, if one has a look at the definition of prescribed in the Act it says prescribed means prescribed by regulation under Section 40 and if one then turns to Section 40, it's the President, the President may make regulations prescribing anything required to be prescribed for the proper application of this Act. The power is given to the President to prescribe the form and whatever form the President prescribes is given the power of statute and that is the form that has to be completed, that Section 18 says "you shall submit an application in the prescribed form and whatever conditions are contained in that prescribed form, you shall comply with." That's what the regulations are there for, gives the President the power to legislate. Delegated legislation I might add.

My learned friend said that if there was - if there's no substantial compliance for the cut off date then the applications are not good enough and I agree with my learned friend on that, that is quite correct. If there is no substantial compliance before the cut off date then the applications are defective and therefore invalid, that is quite correct.

CHAIRPERSON: And he went further and said the TRC has the power under Section 19 to call upon the applicant to rectify the difference.

MR BERGER: And we know that the TRC did not call upon the applicants to remedy the defects until after they had submitted fresh applications - in fact we know that the TRC never called upon the applicants to remedy the defect. So as at 30 September 1997, the defects had not been remedied, that much is common cause, so therefore it must follow, on my learned friends argument, that as at 30 September 1997 those applications were invalid.

My learned friend says that a letter from prison is an application within the meaning of the Act. That, with respect, cannot possibly be correct because if that is so then one must ignore the provisions of Section 18 with regard to the prescribed form.

My learned friend said that Section 19 (i) saves the day for the applicant. I am prepared to accept for the purposes of this argument that any application includes the applications that were defective. Section 19 (i) says that the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application. Clearly, the clear meaning of those words is - you haven't completed your application properly, we are returning your application to you so that you can complete it properly and then submit it in terms of Section 19 (i) and submission of the application. That submission and the submission in Section 18 must be in the prescribed form or request the applicant to provide such further particulars. So Section 19 (i) also makes provision for further particulars but that is something after a valid application has been submitted. If a valid application is not submitted, it gets returned to the applicant so that he can resubmit it. It was pointed out to the applicants that their applications were defective - in fact it didn't even have to be pointed out to the applicants that their applications were defective, they knew it and that's why they said details to follow at a later stage and when they submitted the further details, it was done in the form of a fresh application. Section 19 (i) in fact is totally against the applicants, on a proper reading of Section 19 (i) it doesn't save the day at all, in fact I would submit that the returning of the application to the applicant can mean only one thing, that the application is defective and it doesn't become a proper application until it is resubmitted in accordance with the requirements of Section 18 and to say that Section 19 (i) - the requirements of Section 19 (i) have been complied with and therefore Section 21 (a) has been satisfied, is with respect, losing sight of Section 18. Section 18 is also a requirement of the Act - it too must be complied with. Nothing was done in respect of the defective applications until after the cut off date, therefore at that date there were no proper applications before the Committee. Whether or not the Committee accepted the applications, there would be argument about waiver. With respect, whether or not the application is valid is a decision which must be taken by the Committee not by Advocate Mpshe, it's the Committee now who takes the decision whether or not the applications are valid.

The fact that Section 19 doesn't expressly refer to Section 18 doesn't really take the matter any further. Section 18 says you must submit an application in the prescribed form, Section 19 then talks about applications which have been submitted.

If the ordinary grammatical meaning is given to the word "any" then the ordinary grammatical meaning can likewise be given to the word "shall".

Section 19 was designed to remedy defective applications, I'll accept that but then they must be remedied before 30 September 1997. If they are not remedied they remain defective and as at the cut off date invalid.

CHAIRPERSON: If the application is defective and is received on the last day is that the end of the matter?

MR BERGER: If it's not substantially - if there's no substantial...[intervention]

CHAIRPERSON: If it is defective.

MR BERGER: Defective?

CHAIRPERSON: Yes, if it is defective.

MR BERGER: Yes and defective means no substantial compliance. About illiterate people not being able to submit the applications, the applicants - I don't know whether they are illiterate - Mr Mthembu surely is not - but they had legal representation throughout, they've had legal representation since 1994.

Question of balancing prejudice and that prejudice is evenly balanced - with respect, this is not a question of balancing prejudice. The question is whether vested rights are being taken away. The applicants had their rights and they had the power to preserve their rights. Their own actions meant that they forfeit those rights. The victims have not had the power to preserve their rights, they rely on the provisions of the Act. Mr Khubeka's application can be supplemented now and he will then have a valid application before the Committee. With respect, that highlights the absurdity of the argument of saying that the applications can be - the defectiveness can be cured at any stage. The defectiveness cannot be cured at any stage - there must be valid applications as at per cut off date otherwise Mr Khubeka could come in ten years time and say I want to now give you my story and the Committee would be bound to hear him. That can't possibly be correct.

And finally, as far as the purpose and spirit of the Act is concerned, yes, the purpose of the Act is to get at the truth but the purpose of the Act is also to set limits so that there can be justice between the parties. The applicants had their rights, they forfeited them, the victims have their rights and they stand on those rights. We would ask that the applications be dismissed for want of compliance of Section 21 (a). Thank you.

CHAIRPERSON: We'll take the lunch adjournment now and we'll come back at two o'clock and give a ruling.

MR BRINK: Mr Chairman, these aren't submissions but to indicate what the practice has been in the Amnesty Committee. As you might be aware there have been scores and scores of applications, scores and scores of applications which have defective by virtue of the fact that they have either not been signed properly, in other words one assumes that an illiterate has merely put his mark or cross, where there has been no attestation by a Commissioner of Oaths. When those defective applications come in they are registered, they are given an AM number.

CHAIRPERSON: That is what has been done in the past, the question is whether, you know, does the Committee have the power to do that? I think that is the issue that we have to look at. It may well be that the practice has been followed in the past and it may well be that the practice was not consistent with the Act.

MR BRINK: No, I understand that, Mr Chairman, I merely raised it in the light of the remarks you made towards Mr Berger and that was all.

CHAIRPERSON: Yes, we'll give the ruling at two.



CHAIRPERSON: On the 10th May 1997, the attorneys who were acting for the remaining fifteen applicants submitted applications on behalf of the remaining applicants. These applications were neither signed by the applicants nor attested to by the Commissioner of Oaths. Each application was accompanied by a covering letter in which it was stated inter alia that the applications are incomplete, that the applications relate to the charges in connection with the Boipatong Massacre and that the outstanding information would be furnished in due course. The reason for the incomplete nature of the application and the fact that they were not signed by the applicants was given as being that the attorneys had been unable to get hold of the applicants prior to the deadline for the submission of the applications for amnesty which at that stage stood at the 10th May 1997. The covering letter also referred to a conversation which the writer of that letter had with Advocate Mpshe in regard to what was to become of the applications. Although initially the first and the last pages of the applications were submitted by telefax transmission, the entire applications were subsequently sent by registered post. These applications were received by the TRC prior to the 30th September 1997. These applications were duly registered by the Amnesty Committee and were allocated numbers in accordance with the internal procedures of the Amnesty Committee. On about the 14th July 1997 a possible setting down of these cases was discussed and this was followed up by a letter of the 15th July 1997 by the Attorneys who were then acting for these applicants. In a letter of the 10th November 1997, the Executive Secretary of the Amnesty Committee reminded the applicants of their earlier undertaking to furnish the outstanding information. At the same time he advised the applicants that their applications had been identified as matters that were to be dealt with at a hearing and also pointed out that failure by the applicants to furnish the outstanding information was presenting difficulties to the Amnesty Committee in terms of processing these applications. Eventually the present attorneys for the applicants submitted the outstanding information on or about the 13th February 1998. This took the form of properly completed Form 1 duly attested before Commissioners of Oaths. No such further applications though were submitted on behalf of Khubeka and Mbatha. It is common cause that these further applications by the applicants were received well after the extended deadline of the 30th September 1997.

The question before this Committee is whether the applications by the fifteen applicants comply with the requirements of the Act. The matter is governed by Section 18 (i) read with Section 19 (i) of the promotion of National Unity and Reconciliation Act No. 34 of 1995 as amended. Now Section 18 (i) provides "any person who wishes to apply for amnesty in respect of any act or omission or offence on grounds that it is an act associated with a political objective shall within twelve months from the date of the proclamation referred to in Section 7 (iii) or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form." The prescribed form referred to in Section 18, sub-section 1 was published in Government Gazette No. 16985 dated 9 February 1996 and it is referred to as Form 1. Form 1 requires inter alia that it must be completed in block letters, sworn to solemnly, affirmed before a Commissioner of Oaths and thereafter returned to the Amnesty Committee. It is common cause that at least by the 30th September 1997 applications on Form 1 had been submitted on behalf of the applicants. These applications were incomplete and had not been signed by the applicants themselves and had not been attested to before the Commissioner of Oaths.

The issue of substance is whether the applications which are now before this Committee complies with the requirements of the Act and this in turn depends upon the proper construction of Section 19, sub-section 1 of the Act. Now Section 19 (i) of the Act provides "upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary or request that the applicant to provide such further particulars as it may deem necessary.

Section 19 (i) appears to contemplate that the Amnesty Committee would receive not only incomplete applications for amnesty or improperly completed applications but applications which are not made on the prescribed form 1 or for that matter applications which may not have been signed by the applicants themselves.

The use of the word "any" and the provisions suggest that it refers to any application whatsoever. What the Act did was to empower and authorise the Amnesty Committee to call upon the applicant who has furnished a defective application to rectify that defect. We believe that the interpretation we are placing on Section 19 (i) is consistent with the policy of the Act. It must be remembered that one of the objectives of the Act is to uncover the gross human rights violations of the past. It seeks to help the survivors and the dependants of the tortured and the wounded, the maimed and the dead to discover what did in truth happen to their loved ones where and under what circumstances it happened and who was responsible. That truth which the victims so desperately seek is more likely to be forthcoming if the perpetrators of these gross human rights violations are encouraged to come forward and tell and disclose the whole truth upon the promise that if they do so, they will not be prosecuted. In dealing with these applications, that is what we have to bear in mind. In our view the Amnesty Committee was entitled upon receiving the applications by the applicants to call upon the applicants to remedy the defects in their initial applications by submitting the outstanding information which the applicants subsequently did by filing further applications which were properly completed and duly attested. The initial applications must be read together with the subsequent applications which the applicants submitted as supplemented by the further particulars and the further affidavits which the applicants submitted.

In the result, the Committee is satisfied that the application by Qambelani Buthelezi, Bhekinkosi Mkhize, Tebogo Magubane, Vincent Khanyile, Timothy Stals Mazibuko, Jack Mbele, Sonny Michael Mkwanazi, Moses Mthembu, Mplupeki Tshabangu, Sipho Buthelezi, Petrus Mdiniso, Mxoliseni Sibongeleni Mkhize and Richard Dlamini comply with the requirements of the Act.

In so far as the application by Mbatha is concerned, the applicant Mbatha is not before this Committee and therefore his application cannot be dealt with at these proceedings therefore his application is removed from the roll.

In regard to the application which was not before us but which we are told was made by Mr Khubeka, that application - there appears to be further investigations which are to be conducted in regard to that application and therefore it cannot be dealt with presently.

Mr Strydom, the application by Mr Khubeka was never enrolled was it?

MR STRYDOM: I didn't hear that, was never?

CHAIRPERSON: The application by Mr Khubeka, it was never enrolled was it?

MR STRYDOM: No, only the original document, the defective if I can so call application was sent through to the Amnesty Committee, Mpshe - I think a number has been allocated to that application as well.

CHAIRPERSON: No, I understand but is it before us?

MR STRYDOM: Not at this stage.

MR LAX: Perhaps a better way of putting it would be to say has it been set down for hearing here and the answer is no.


CHAIRPERSON: The application by Mr Khubeka cannot be considered at this stage until it is properly enrolled and properly investigated. The effect of this ruling is then that the applications by the applicants whose names have been referred to in this ruling will be heard commencing on the 11th August until the 14th August this year, the venue at which those applications will be heard will be announced in due course. On the 11th August the proceedings will commence at ...[intervention]

MR STRYDOM: I would suggest that being the first day that we make it a bit later to get everybody together and I would ask for ten o'clock?

CHAIRPERSON: Which one, nine or ten?

MR BERGER: Ten o'clock is fine Chairperson.

MR MALINDI: Ten o'clock is fine Chairperson?

CHAIRPERSON: Eight o'clock?

MS PRETORIUS: Ten o'clock will be fine, I think.

CHAIRPERSON: Yes, very well, the proceedings on the 11th August will then commence at ten o'clock. Before we rise ...[intervention]

MR BERGER: Chairperson, can I just ask that now that there is time before the 11th August that the applicants will give evidence in the order in which their names appear on the front sheet as from the 11th August, can we agree to that?

CHAIRPERSON: Okay, there's just one thing that I wanted to -you want the applicants to give the evidence in the?

MR BERGER: In the order in which their names appear.

CHAIRPERSON: Oh, in the application?


CHAIRPERSON: Okay. Mr Strydom, it seems to me that there's something to be said from what Mr Berger is saying. First of all it is quite clear that we are unlikely to finish in August and that because of, you know, my other commitments thereafter, we may not sit earlier than next year to finish the applications and perhaps it would give the legal representatives of the victims enough time to conduct whatever investigations and prepare and take whatever it takes to prepare if they were to be told timeously the order in which the remaining applicants will be called so that they can forecast their investigation and their preparation to that order rather than investigating an application which may not come up during August, which may come in some time at a later state.

MR STRYDOM: Chairperson, I undertake to give a list of the sequence and I will give it before the end of July so that the legal representatives ...[inaudible]

MR LAX: No, that's not acceptable, Mr Strydom.

CHAIRPERSON: Why can't you give that now?

MR STRYDOM: Well I can give it now that the - I can give at least say the first seven or I'll try to give the full list at this stage.

CHAIRPERSON: You said the first seven?

MR STRYDOM: I just thought maybe we'll just get to the first seven but I will give as far down as I can possibly do at this stage.

MR BERGER: Chairperson, can't we just agree that the applicants will give evidence in which their names appear and then there can be no confusion about that. My learned friend has ample opportunity to prepare those witnesses and we also have opportunity in which to conduct our investigations. The names are in a particular list, let's follow the list.

MR STRYDOM: Chairperson, the mere fact that they appear on a certain list does not mean I should call them to that, one should look at the Amnesty numbers, they differ as well.

CHAIRPERSON: Yes, but surely at some point, these applicants will give evidence. Why should it matter who comes first and who comes last. Why can't that information be made available?

MR STRYDOM: I will provide - today I will give my learned friend a list of how we want to call these people because we see it in an interest to call certain people before the other people in those interests of the applicants and I will provide a list in the sequence I will call them.

CHAIRPERSON: Okay, when are you going to do that by?

MR STRYDOM: I will do it before we leave today, I'll give you the list.

CHAIRPERSON: Before you leave today.

MR BERGER: That's fine, thank you.

CHAIRPERSON: And then there is the other matter of the map, the map which depicts Boipatong, Kwamadala Hostel and the aerial photographs.

MS PRETORIUS: Chairperson, at this stage the Defence Force has been contacted but we are trying to get hold of it. I will go personally to the High Court in Pretoria and have a look to find it. Apparently, it must be somewhere there so we will, between us we will see that we get it. There is also a map and an aerial photograph that all the representatives at the trial had which may also help. I will see how many copies of that I can get and provide to everybody.

CHAIRPERSON: Yes, okay and in the interests of progress I would urge the legal representatives to share the documents that each has in his or her possession which are intended to be used here and if there are any difficulties, please get in touch with the Committee so that we can give directions if necessary as to how to deal with whatever problems you may encounter in getting any documentation that you desire.

MS PRETORIUS: We'll see to that, Chairperson.


MR BERGER: And we will too, yes. Chairperson, I'm not sure if the evidence leader has any resources at his disposal to locate those maps because I would have thought that those maps are probably in Bloemfontein.

CHAIRPERSON: With the record.

MR BERGER: As part of the appeal record, yes.

CHAIRPERSON: Yes, okay. I am told that the investigator, the TRC investigator who has been investigating this matter is Mr Wessels Janse van Rensburg. Perhaps if you could get -if the legal representative could liaise with him in order to see whether they can locate this document because I think he was helpful in locating the docket.

MR BERGER: Yes, I think that he is the correct person because the appeal court may very well be loathe to allow us or the applicants' legal representatives access to the appeal record.

CHAIRPERSON: Oh, yes I understand that. Well would you then liaise with him and if there are any difficulties let us know.

MR BRINK: Mr Chairman, if I can be of assistance. I undertake to have a word with Mr Janse van Rensburg when I see him in Cape Town this week and I will pass this on to him and ask him to liaise with the applicants' attorneys and the next of kin counsel to see if we can get that.

CHAIRPERSON: Okay, is there any other matter that needs to be?

MR BRINK: It may be of assistance if we could have the - the appeal I presume has been enrolled - if we can have the case number, the appeal record number, that will facilitate the reference.

CHAIRPERSON: Well I suppose those are the matters that will be taken up with Mr Janse van Rensburg. Is there any other matter?


MR STRYDOM: Chairperson, just one other matter, we haven't been provided with a list of the victims, the various legal representatives represent, I think at the next hearing we can just have such a list?

CHAIRPERSON: Yes indeed, yes indeed.

MR BERGER: Yes, we undertake at the next hearing to put all of that on record, the lists will be provided and so on.

CHAIRPERSON: Okay, very well.

Finally let me take this opportunity to thank each and every one of you for the patience that you have displayed whilst we had problems with getting off the ground, the delays that we've encountered and above all, your behaviour during the hearings. The legal representatives for their co-operation, the interpreters, the media, everyone who has made a contribution towards ensuring that these proceedings are a success and we express our gratitude to the authorities of the college for allowing us to use this hall as we engage in a desperate attempt to uncover the truth. Thank you very much and to my colleagues who have been very patient throughout these proceedings, thank you.