CHAIRPERSON: Morning. The Committee is the same but I would ask the legal advisers to put themselves on record please.
MS LOONAT: I'm Zerena Loonat and I'm representing the applicant.
MS JELAL: Shireen Jelal, I represent the victims.
MR MAPOMA: I'm Zuko Mapoma, the Leader of Evidence.
CHAIRPERSON: We are gathered today to hear the application of Patrick Zamukulunga Dlamini. Unfortunately there are a number of problems that have arisen and I will deal very briefly with them, but which renders it impossible for the matter to proceed today.
The first of them, or the one that first came to our notice was that the victims had been given what appeared to be totally inadequate notice, in that some of them were only served on Wednesday of this week with a notice of set-down and a lawyer had been instructed to represent them last week. She had been then issued with a list of names and telephone numbers, to discover that most of the telephone numbers were incorrect and she was unable to make contact with her clients until this week, and has even yet not been able to see all of them or take full instructions from them. But they have indicated to her that they desire to participate in the hearing of the application, that they may well wish to make representations or perhaps give evidence, and that is one of the reasons why we could not proceed with the matter today, because they are not here and would not be ready to do so.
The second matter, this has just arisen, and which causes difficulties of a completely different sort, is that we were informed a short while ago that the applicant had made an affidavit on the 8th of March of this year, a copy of which was put before us, in which he stated that he desired to voluntarily withdraw his application for amnesty and set out various reasons for this decision. He indicated that he had discussed the application with a certain lawyer, now I do not think that is the lawyer who is representing him at the present time, but it may be necessary to obtain statements from her, and he set out the reasons and we have a copy of the affidavit, both the original and a typed copy.
However, there's a second affidavit dated the 25th of August of this year, in which the applicant indicates that he has reconsidered his position and wants to continue with his application and this is the attitude he has expressed to his lawyer.
This immediately raises various legal problems, in that we are a creature of statute, obliged to hear applications for amnesty as provided for in the Act. Whether an applicant can withdraw an application and thereupon cease to be an applicant and decide a few months later that he wishes to proceed with an application, is a matter that will have to be carefully considered and argued. It is a matter that has only just arisen and I do not think it would be fair to any of the lawyers concerned, to expect them to be able to deal with the matter now.
I have discussed the matter with the other Members of the Committee and what we have decided would be the fairest way of dealing with the matter, subject to any comments that anybody may have to make, is to permit the applicant to lodge an application for the hearing of his application, together with supporting affidavits, setting out any information that he wishes to draw to the Committee's attention, and this should be done within 14 days of today's date. The papers should be filed and served on the victims and on the Leader of Evidence of the Committees.
Thereupon, those parties will be given a week to file any replying affidavits or any argument if they wish to do so, because I think that the first papers should not only consist of affidavits from the applicant, but should set out Heads of Argument justifying the relief sought, and this can be dealt with in reply and that thereafter the matter will be set down for hearing, or a decision by a Committee, not necessarily the Committee that is sitting today. This decision will not be on the merits of the application for amnesty but on the legality of the proceedings and whether the application can properly be heard.
The affect of this will obviously be to delay proceedings for three or four weeks, which will enable the parties to take complete instructions from their clients as to the merits and arrangements should then be made after the decision has been given, for the matter to be set down, if it is so decided. But I would stress that even then steps should be taken to ensure that due notice is given to all the parties and that the date for the proposed hearing is a date suitable to the parties and their legal representatives.
Does anybody wish to make any comments in this regard?
MS LOONAT: No Your Honour, that's in order, thank you.
MS JELAL: No, Mr Chairperson.
MR MAPOMA: No comment, Chair.
CHAIRPERSON: In those circumstances I feel that all we can do at the moment is to remove the matter from the roll, but in saying that I am not indicating that the matter was properly enrolled, I'm merely concluding that we cannot hear the - perhaps rather than remove the matter from the roll, I have to say we cannot hear the application today and that we are accordingly adjourning the proceedings. I'm obliged to the legal advisers and I'm sorry that they've had this sprung on them just as it was sprung on us.
I would like to apologise to anyone who has come today as a result of having been served notice and to come to clarify the position, the factual position, and we trust that when the matter is - if it is set down again, you will be given adequate and proper notice about it. Thank you.
HEARING ADJOURNS
