SUPREME COURT OF APPEAL UPHOLDS JUDGEMENT ON THE EFFECTS OF AMNESTY GRANTED BY THE TRC IN ROBERT MCBRIDE
APPEAL

In 2008 the High Court ruled in favour of controversial former Ekhuruleni police chief, Robert McBride, in his claim for defamation and infringement of dignity against The Citizen. The claim related to a series of articles published in The Citizen in October 2003 regarding what the authors of the articles and editorials perceived to be McBride's unsuitability for his then proposed appointment as Ekurhuleni police chief. The articles made reference to McBride's involvement in the 1986 Magoo's Bar bombing, labelling him a murderer and bomber, and his detention in Mozambique in 1998 on allegations of espionage, criminal conspiracy and gunrunning. The High Court awarded McBride damages of R 200 000.

The Citizen appealed the High Court ruling and the judgment of the Supreme Court of Appeal ("SCA") was handed down on 26 February 2010. The court dismissed the merits of the appeal lodged by The
Citizen but reduced the amount of damages that the High Court awarded to R150 000.

It is necessary to recount the facts which were common cause before the court. In 1986, McBride, who was at the time an operative of the
ANC's armed wing, Umkhonto we Sizwe, planted a bomb at the Magoo's Bar in Durban which resulted in the death of three women and injuries to several other people. McBride was subsequently convicted of murder and sentenced to death.

In 2001 McBride was granted amnesty by the Truth and Reconciliation Commission ("TRC") on the basis that his actions formed part of the ANC's armed struggle against the apartheid government.

The crisp issue before the SCA was whether the amnesty which had been granted to McBride meant that it is no longer possible to brand him a murderer or a criminal in the context of articles commenting on his suitability for a prominent governmental position.

The Citizen raised the classical defence of fair comment, arguing that the statements contained in the articles were expressions of opinion and that the facts on which the comments were based were true. According to The Citizen, the facts that formed the basis of the articles were that McBride was "a murderer as a result of him planting a bomb in Magoo's Bar during 1986, when several people were killed" and that he has been "detained in Mozambique on alleged arms trafficking between Mozambique and South Africa".

The SCA focused its decision on the two core allegations contained in the articles, i.e. that McBride was not suited for the post of Ekurhuleni police chief and that he was a murderer, and considered whether The Citizen could rely on the defence of fair comment in respect of these allegations. The Court confirmed the well established elements of the defence of fair comment:

• The relevant statement must constitute comment or opinion;
• The comment must be fair;
• The facts commented upon must be true; and
• The comment must concern a matter of public interest.

The primary aspect of the defence of fair comment that needed to be considered in this case was whether the facts commented upon in the articles published by The Citizen were true.

The SCA based its decision on the Promotion of National Unity and Reconciliation Act 34 of 1995 ("TRC Act"), which is the Act that created the TRC and made provision for amnesty to be granted as well as the effects of such amnesty. In terms of the TRC Act the granting of amnesty had several consequences, including that in terms of section 20(10), all records of the person's convictions were expunged and the conviction is for all purposes deemed not to have taken place.

Four of the five judges of the SCA interpreted the provisions of the TRC Act to have the effect that once McBride had been granted amnesty, he could no longer be branded a criminal and a murderer. The statements in the articles that McBride was a murderer were therefore false and accordingly the defence of fair comment could not succeed.

The Citizen had also introduced an alternative argument; that the allegation that McBride was a murderer was not a statement of fact but an opinion. The majority of the court held that this argument was not available to the newspaper because it had not been pleaded. In any event, the majority held, in order to determine whether an allegation is a statement of fact or an expression of opinion the primary question is how the ordinary reasonable reader would understand it. In order for the allegation to be considered an opinion, the articles should have contained an accurate statement of the facts on which the opinion was based, including the fact that McBride has been granted amnesty. The court held that in several of the articles McBride was referred to as a murderer and no mention was made
of the fact that he been granted amnesty. Readers were accordingly not given the impression that the authors were expressing an opinion that, notwithstanding the amnesty granted to McBride, he still ought to be considered a murderer; rather the allegation was stated as a fact. The defence of fair comment was accordingly not upheld on this alternative argument either.

In respect of the gun running allegations, the court held that the High Court had been wrong to conclude that the allegations in the articles that McBride was alleged to have been involved in gun running meant that he had actually been involved in gun-running. The amount of damages awarded to McBride in respect of this allegation was accordingly reduced from R100 000 to R50 000.

Mthiyane JA disagreed with the majority and ruled in favour of The Citizen. He held that although the objective of the TRC Act was to facilitate national reconciliation by granting amnesty for certain criminal offences, it did not have the effect that a person convicted of the crime of murder could no longer be described as a murderer or a criminal. Accordingly, the reference to McBride as a murderer was an accurate statement on an issue that was a matter of historical record and on which The Citizen had been entitled to express an opinion. Mthiyane JA further held that the reference to the bombing incident was in the public interest, given its relevance to the possible appointment of McBride to a position of public importance.
He also noted that the interpretation of the TRC Act adopted by the majority would have a chilling effect on the right to freedom of expression.

Our view of the judgment

The judgment of the SCA in this matter restricts the manner in which criminal acts for which amnesty was granted by the TRC may be reported on. The effect of the judgment is that when reporting on conduct for which amnesty was granted by the TRC, it is not permissible to refer to the individual in question as a criminal as a fact. It is also important that mention must be made of the fact that amnesty was granted if an opinion is to be expressed about the person.

The judgment also highlights the general principle that in order to succeed with the defence of fair comment, the facts upon which a comment or opinion is based must be fully and accurately stated.

We believe that the majority in the SCA erred in this judgment and that the approach adopted in the dissenting judgment of Mthiyane JA is to be preferred. The interpretation given to the TRC Act by the majority does not in our view give due weight to the right to freedom of expression. The decision reached by the majority is also puzzling in that they reached their decision despite accepting that the effect of amnesty is not to obliterate the historical record and that the "[t]he granting of amnesty was an attempt to shape the future not to undo the past".

Furthermore, even if, as the majority found, it was important for The Citizen to have made reference to the amnesty in order to qualify for the fair comment defence, the majority does not recognise that the earlier articles (although not sued upon) did make such a reference. The majority therefore took a narrow approach to what was published. This approach is contrary to the way that defamation law is developing in Europe, where the European Court of Human Rights has said that what must be considered is the series of articles or the newspaper's contemporaneous output on a particular issue, rather than each article in isolation.

The Citizen has indicated its intention to appeal to the Constitutional Court.

Written by: Dario Milo, partner at Webber Wentzel