amntrans AMNESTY HEARING 1999-02-23 BOKSBURG CIVIC CENTRE 2 PATUMUSI JOSEPH MAGWAZA 6447/97; 6003/97 https://sabctrc.saha.org.za/hearing.php?id=53225&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99022225_bks_990223bk.htm CHAIRPERSON On my right is Advocate Sibongile Sigodi, she is a member of the Amnesty Committee and she comes from Port Elizabeth. On my left is Mr Ilan Lax, he is an attorney, also a member of the Amnesty Committee, and he comes from Pietermaritzburg. And I am Selwyn Miller, I am a Judge of the High Court in the Eastern Cape, particularly from Umtata. MR DRAHT CHAIRPERSON Thank you Mr Draht. Mr Claassen. MR CLAASSEN CHAIRPERSON Thank you. Mr Cachalia. MR CACHALIA CHAIRPERSON Thank you Mr Cachalia. MS LOCKHAT My name is Ms Lynn Lockhat, I appear on behalf of the Commission. CHAIRPERSON Thank you Ms Lockhat. Mr Claassen, you have some submissions to make? MR CLAASSEN ADDRESSES COMMITTEE CHAIRPERSON Yes, certainly Mr Claassen. MR CLAASSEN CHAIRPERSON MR CLAASSEN CHAIRPERSON MR CLAASSEN CHAIRPERSON It was received on the 7th of May 97. MR CLAASSEN Mr Chairman and if I may refer the Committee to page 47 of the bundle, the 8th of September 1997 he was, a decision was made based on this particular application, in which amnesty was denied on the basis that guilt in the application was denied by the applicant. "...please submit the new application before 30th September 1997. Hopefully it will clarify matters." Mr Chair, A5 of the bundle I think that is basically on which this whole, my whole argument, ...(intervention) CHAIRPERSON MR CLAASSEN That is correct Mr Chair. CHAIRPERSON Was advocate van der Merwe, was he involved in the trial, or where does he fit into the picture? MR CLAASSEN CHAIRPERSON Mr Claassen this fax is addressed to van der Merwe, from the Amnesty Committee. If you can see its to van der Merwe from Martin Coetzee, whose the executive secretary of the Amnesty Committee. Clearly van der Merwe had some dealings with the matter, either via Colleen Henchie, of some description, or ...(intervention) MR LAX MS LOCKHAT No, definitely not Chairperson. MR CLAASSEN CHAIRPERSON It would seem that the designation advocate might be a mistake, because the fax starts, "...We refer to your telefax dated 17 September." MR CLAASSEN CHAIRPERSON Well in any event ...(indistinct) MR CLAASSEN Thank you Mr Chair. So it appears that there have been some dealings trying to get past this problem, or the fact that the first application, as I referred to, have been turned down. "...the Committee shall investigate the application and make such enquiries as deemed necessary." Mr Chair I think that that might just be the situation that we are sitting with today. Surely there might be a dilemma in the question was a decision taken and why was the second affidavit or the second application allowed to be entertained. Mr Chair if I might just conclude by saying that it is my submission that, in view of the fact that the Amnesty Committee has, or the TRC has, up to this stage, indicated that apparently the second one is a hearable matter, and deemed it to be, I presume, different enough from the first one, that I would respectfully request this Committee to hear this matter and at least give Mr Magwaza the benefit of the doubt, and in that this matter might be entertained. Thank you Mr Chair. CHAIRPERSON Mr Draht do you have any submissions? MR DRAHT No Mr Chairperson. CHAIRPERSON Mr Cachalia do you have any submissions? MR CACHALIA Chair no thank you, except to just state that I think the matter is a simple matter of being functus officio as you had decided yesterday. I say that is the only remedy that he has in the circumstances, rightly or wrongly, it appears that the second application was received after the decision was made on the 4th of September and therefore at that time it would be, the Committee was already functus officio. Thank you, sir. CHAIRPERSON Ms Lockhat? MS LOCKHAT ADDRESSES COMMITTEE the decision was valid and in good faith, and the applicant has a recourse to take the matter on review and use the annexures submitted today as evidence in his review application. As far as the Commission is concerned we are functus officio. CHAIRPERSON Mr Claassen any reply? MR CLAASSEN CHAIRPERSON Thank you. Mr Claassen has made submissions relating to a decision which was taken by the Amnesty Committee on the 4th of September 1997, in terms of which the application of Mr Patumusi Joseph Magwaza, that is the third applicant, was refused. His application for amnesty was refused. That decision was based on an application which was submitted by Mr Magwaza dated the 2nd of May 1997, which was received by the Amnesty Committee on the 7th of May 1997. In terms of that application, Mr Magwaza denied all guilt relating to this so called Zevenfontein incident. It would therefore appear that the decision taken at that stage was justified. Thereafter in later September, the latter part of that September 1997, correspondence was entered into between the attorneys representing Mr Magwaza and the Amnesty Committee, which led to the subsequent filing of another application by the said applicant, Mr Magwaza, which was filed at the end of September 1997, in terms of which Mr Magwaza admitted taking part in the so called Zevenfontein incident. And that second application was assigned a new registered number different from the first application. That application was then investigated and persisted with until now when it has been set down for hearing. Mr Claassen has submitted that because of those subsequent events that have taken place and the stance taken by the Amnesty Committee, that second application should be regard as being supplementary to the first application, and that the hearing should be proceeded with. We are therefore of the view that we just do not have the authority to disregard or set aside that previous decision and that we are functus officio and we will, we are, in the circumstances, unable to proceed with the application of Mr Magwaza today, in the light of the fact that his application has already been refused. His application, the second one, is therefore removed from the roll of this hearing, and may be set down again should there be any development relating to the, well, should the decision to refuse his earlier application be set aside. 2ND APPLICATION OF MR MAGWAZA: AM NO 6447/97 REMOVED FROM ROLL MR CLAASSEN As the Commission pleases.