The Citizen 1978 (Pty) Ltd v McBride (277/08) [2010] ZASCA 5; 2010 (4) SA 148 (SCA) ; [2010] 3 All SA 46 (SCA) (26 February 2010)

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The Citizen 1978 (Pty) Ltd v McBride (277/08) [2010] ZASCA 5; 2010 (4) SA 148 (SCA) ; [2010] 3 All SA 46 (SCA) (26 February 2010)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 277/08
THE
CITIZEN 1978 (PTY) LIMITED First
Appellant
KEVIN KEOGH Second
Appellant
MARTIN
WILLIAMS Third Appellant
ANDREW KENNY Fourth
Appellant
and
ROBERT JOHN
McBRIDE Respondent
Neutral
citation:
The
Citizen v McBride
(277/08)
[2010] ZASCA 5
(26 February 2010)
Coram: STREICHER,
MTHIYANE, PONNAN, MHLANTLA JJA and TSHIQI AJA
Heard: 2 NOVEMBER
2009
Delivered:
26
FEBRUARY 2010
Summary: Defamation
– amnesty in terms of
s 20
of the
Promotion of National Unity
and Reconciliation Act 34 of 1995
– persons to whom amnesty had
been granted in respect of an offence no longer considered to have
committed the offence.
ORDER
On appeal from: Witwatersrand
Local Division (Maluleke J sitting as court of first instance)
The following order is made:
(i) The appeal is partially
upheld.
(ii) The appellants are ordered,
jointly and severally, to pay 75% of the respondent’s costs.
(iii) The order of the court
below is set aside and replaced with the following order:
‘(a) The fourth, fifth and
sixth defendants are ordered, jointly and severally, to pay to the
plaintiff the sum of R150 000
together with interest thereon at
the rate of 15,5% per annum calculated 14 days from date of service
of summons to date of payment.
(b) The seventh defendant is
ordered jointly and severally with the fourth, fifth and sixth
defendants to pay to the plaintiff R100 000
of the said sum of
R150 000 in paragraph (a) above, together with interest thereon
at the rate of 15,5% per annum calculated
14 days from date of
service of summons to date of payment.
(c) The fourth, fifth, sixth and
seventh defendants are ordered jointly and severally to pay to
plaintiff the costs of suit.’
JUDGMENT
STREICHER
JA
: (MHLANTLA &
TSHIQI JJA
concurring)
[1] The respondent, Robert John
McBride, succeeded against the appellants in a defamation action
instituted in the Witwatersrand Local
Division and was awarded
damages in an amount of R200 000, R100 000 thereof against
the first, second, third and fourth
appellants jointly and severally
and R100 000 thereof against the first second and third
appellants jointly and severally. The
latter was a composite award in
respect of several claims. With the leave of the court below the
appellants now appeal to this court
against the whole of its
judgment.
[2] The respondent’s claims
were based on editorials and articles published in The Citizen, a
newspaper widely distributed throughout
South Africa and widely read
by the general public. The first appellant (fourth defendant in the
court below) is the publisher and
the second appellant (the fifth
defendant) is the editor of The Citizen. The third and fourth
appellants (the sixth and seventh defendants
respectively) are
newspaper journalists.
[3] On 10 September 2003, under
the heading ‘McBride tipped to head Metro cops’ The Citizen
reported as follows:
‘
Robert
McBride – former operative in the ANC’s military wing, Umkhonto
we Sizwe, who bombed a Durban bar in 1986, killing several
people
including three women – could be heading to the Ekurhuleni Metro as
Chief of Police.
The
Citizen
learnt from a reliable source inside the Metro that McBride`s name
was mentioned as a possible replacement for Mongezi India, the
former
Metro police chief who resigned recently.
. . .
McBride, as an MK
operative, was attached to a Special Operations Unit. He served four
years on death row after being convicted for
the car bomb explosion
at the Magoo’s and Why Not bars near the Durban beachfront in 1986.
He was widely
condemned for the attack on what was widely perceived to be a “soft”
civilian target though McBride insisted that
the pub was frequented
by SADF military personnel from a nearby barracks. No soldiers were
killed or injured in the massive explosion.
Later McBride
applied for and was granted amnesty for the attack by the Truth and
Reconciliation Commission (TRC) due largely to the
fact that the ANC
claimed it had ordered McBride to attack the pubs, contrary to its
initial denials that it was involved in the
bombing.
But as McBride was
deemed to be acting on the orders of a political organisation he
qualified for amnesty.
Later he was
arrested and charged with gun running in Mozambique.
He claimed that he
was in fact part of an undercover investigation into gun running out
of Mozambique.
He was subsequently
released and sent home.’
[4] On 11 September 2003 the
following article appeared in the Citizen of that date under the
heading ‘No comment on McBride’
and the sub-heading ‘Tipped as
top cop for E Rand metropole’:
‘THE
Ekurhuleni metropole on the East Rand was noncommittal yesterday over
a newspaper report that controversial Foreign Affairs
official Robert
McBride could be their next Metro Police Chief.
McBride, currently
director at the Department of Foreign Affairs and head of consular
services, was sentenced to death during the
apartheid era for his
role in the bombing of a Durban beach-front bar.
The sentence was
later commuted. The Truth and Reconciliation Commission also granted
him amnesty.’
[5] The respondent did not
complain about these articles but based his claim on two editorials
and five articles that were published
in The Citizen during the
period 11 September 2003 to 30 October 2003. The first editorial
published on 11 September 2003 under the
heading ‘Here comes
McBride’ read as follows:
‘
ROBERT
McBride’s candidacy for the post of Ekurhuleni Metro Police Chief
is indicative of the ANC’s attitude to crime.
They can’t be
serious.
He is blatantly
unsuited, unless his backers support the dubious philosophy: set a
criminal to catch a criminal.
Make no mistake,
that’s what he is. The cold-blooded multiple murders which he
committed in the Magoo’s Bar bombing put him firmly
in that
category. Never mind his dubious flirtation with alleged gun dealers
in Mozambique.
Those who recommend
him should have their heads read.
McBride is not
qualified for the job.
If he is appointed
it will be a slap in the face for all those crime-battered folk on
the East Rand who look to the government for
protection.’
[6] Thereafter in an article
written by the third appellant in response to an invitation to take
part in a radio debate about forgiveness
and published under the
heading ‘Beware ambush broadcasters operating under false
pretences’ on 18 September 2003 it was stated:
‘
I
have no relationship with Robert McBride. It is not for me to forgive
him. But his track record as a multiple murderer and a suspect
in gun
dealing make him unsuitable as a metro police chief in a country
wracked by crime.
Forgiveness
presupposes contrition.
McBride still thinks
he did a great thing as a “soldier”, blowing up a civilian bar.
He’s not contrite.
Neither are Winnie or Boesak. They are not asking for forgiveness.
. . .
Those who want to
forgive McBride don’t have to push for him to get this sensitive
job. The two issues are separate.
In fact our comment
was not about forgiveness but rather about suitability.’
[7] In response to a letter from
the respondent’s attorneys demanding an apology and claiming
damages suffered as a result of defamatory
allegations in the
editorial and article, The Citizen on 22 September 2003 under the
heading ‘Bomber McBride to sue The Citizen’,
repeated the
contents of the editorial and said:
‘
McBride
was found guilty of the 1986 Durban bombings in which three civilian
women were killed.
He was released in
September 1992, at the same time as multiple murderer Barend Strydom.
In 1998 he was
detained in a Mozambique jail on suspicion of gun-running.
Neither his arrest
nor subsequent release were fully explained.
The
Citizen
continues to believe he is not the right person to be in charge of
any police force in a major metropole in this crime-ridden country.’
[8] The editorial and articles
were commented upon by the then president of South Africa, Thabo
Mbeki, in his weekly internet newsletter.
In this newsletter he said:
‘
The
ANC, its allies and supporters accepted that those who had been
granted amnesty would afterwards be treated like any other citizen.
There would have been no point to the TRC process if we insisted that
we would act in a manner that sought to penalise those who
had been
granted amnesty.
During the last
nine-and-a-half years of our liberation, both our movement and
government have respected this approach.
. . .
I do not know
whether Mr McBride was ever or is interested to be Chief of
Ekurhuleni Metropolitan Police. I do not know whether he
has the
competence to serve in this capacity. What I know is that it would be
fundamentally wrong that he is denied the possibility
to be appointed
to any position, simply because of what he did during our struggle
for liberation for which he apologised and for
which he was granted
amnesty. We will not agree that Mr McBride should be condemned for
having been a liberation fighter.
In essence what ‘The
Citizen’ is suggesting is that we were wrong to have chosen the
option of the TRC. It is arguing that Nelson
Mandela was mistaken
when he said so many times in the past – let bygones be bygones!’
[9] The Citizen thereupon, in an
editorial published on 20 October 2003, commented as follows under
the heading ‘Thabo Mbeki’s
straw man’:
‘
You
might think our globe-trotting leader, presiding over a party riven
by conflict, would have more important things to do than endorse
bomber Robert McBride’s right to become Ekurhuleni Metro Police
Chief.
. . .
In
his usual circuitous, obfuscatory language, Mbeki hints darkly at
“the grave implications of what
The
Citizen
is seeking to achieve”.
He then wanders off
down a side road of his own making, about attitudes to the TRC and
“the path of national reconciliation”.
Rubbish.
Our coverage was
aimed solely at making the irrefutable point that McBride is
unsuitable to head any decent police force.
We stand by that
opinion.
At his insistence,
the President’s functionaries emphasise race in every sphere; so he
can spare us the lecture on national reconciliation.’
[10] The
next day, being the 21 October 2003
The
Citizen
published an
article by the fourth appellant (‘the Kenny article’). He
referred to President Mbeki’s weekly newsletter and
said:
‘
At
a time of public conflict within the ANC government . . . President
Mbeki devoted his weekly newsletter to attacking The Citizen
for
suggesting that Robert McBride is unsuitable for high office in the
police.
The three most
notorious non-governmental killers of the late apartheid period were
Clive Derby-Lewis, Barend Strydom and Robert McBride.
Each was a wicked
coward who obstructed the road to democracy.
Derby-Lewis, who
targeted a specific political enemy, Chris Hani, is the only one not
to be freed. The other two killed innocent people.
Strydom looked his
helpless victims in the eyes before he murdered them. McBride did not
even do this. He planted a bomb in a bar
and slunk off, not caring
whether it killed men, women or children.
It was the act of
human scum.
. . .
McBride’s bomb was
planted in 1986, at a time when apartheid was clearly in retreat and
when legal avenues of resistance were opening
up.
His murder of the
innocent women strengthened the hand of die-hard apartheid
supporters, and had the effect of prolonging the wretched
regime.
Contrary
to Mbeki’s suggestion, I know of few public voices, and not that of
The
Citizen
,
which opposed the idea of the TRC.
Court cases against
the criminals of the apartheid era would have taken a thousand years.
The TRC was well
conceived. Its execution, however, was criticised for bias.
The more apartheid
reformed, the greater the violence against it.
When it effectively
ended in 1990, the violence reached its zenith.
There were more
political murders per year from 1990 to 1994 than in any year of
apartheid.
These were mostly
ignored by the TRC.
If the ANC regards
Robert McBride as a hero of the struggle, it should erect a statue of
him – perhaps standing majestically over
the mangled remains of he
women he slaughtered.
If he wants to serve
the community, he should work among Aids orphans or help to improve
the provision of pensions to the poor.
He should most
certainly not be made a policeman.’
[11] On 22 October 2003 the third
appellant wrote in The Citizen of that date, under the heading ‘Mbeki
no conciliator’ that:
‘For
Mbeki to project himself as a great supporter of the TRC is
laughable. It’s a ruse to whitewash McBride.
. . .
Mbeki’s support
for bomber McBride is consistent with his long-held view that any
liberation force action was justified.
This unfeeling
attitude doesn’t help genuine reconciliation. For example, in his
latest weekly Internet newsletter he airbrushes
over the horrible
reality of McBride’s deed in murdering civilians.’
[12] In yet another editorial in
The Citizen of 30 October 2003 under the heading ‘McBride cops job’
it was said:
‘
We
believe we performed a civic duty on September 10 by alerting readers
to the possibility that Robert McBride could be named Ekurhuleni’s
Metro Police chief.
We said he was not
the right person for the job. We maintain that view, as do a great
many readers.
But obviously a
decision had already been taken.
President
Mbeki even devoted one of his lengthy Internet messages to defending
McBride and attacking
The
Citizen
.
The bomber has
support in high places, but that doesn’t detract from the evil of
his multiple murders, or make him a suitable policeman.
His appointment
speaks volumes about the ANC’s attitude to crime.
God help
Ekurhuleni.’
[13] The respondent thereupon
instituted action against the appellants for the payment of damages
as a result of him having been injured
in his reputation and dignity.
In respect of each of the editorials and articles he alleged that its
publication was wrongful and
unlawful in that it was understood by
readers and intended to have one or more of the following meanings:
’
13.1 that
the plaintiff is not suited for the position of Head of the
Ekurhuleni Metro Police Force;
13.2 that the
plaintiff is a criminal;
13.3 that the
plaintiff is a murderer;
13.4 that, despite
the plaintiff having been a soldier and a disciplined member of
Umkhonto we Sizwe (“MK”), the former armed
wing of the African
National Congress (“ANC”), he remains a criminal and a murderer;
13.5 that, despite
the plaintiff having participated in the attack on the Magoo’s Bar
as part of the armed struggle waged by the
ANC and MK to eradicate
the system of apartheid, he remains a criminal and a murderer;
13.6 that, despite
the plaintiff having been granted amnesty in terms of
section 20
of
Act 34 of 1995 for, inter alia, his participation in the attack on
the Magoo’s Bar, he remains a criminal and a murderer;
13.7 that, despite
the provisions of section 20(10) of Act 34 of 1995 being applicable
to the plaintiff’s conviction for his participation
in, inter alia,
the attack on the Magoo’s Bar, he remains a criminal and a
murderer;
13.8 that, despite
the plaintiff having been absolved from all liability for, inter
alia, his participation in the attack on the Magoo’s
Bar, he
remains a criminal and murderer;
13.9 that the
plaintiff has made common cause, or attempted to make common cause,
with gun dealers in Mozambique;
13.10 that the
plaintiff has been involved in illegal activities with gun dealers in
Mozambique;
13.11 that the
plaintiff has made common cause, or attempted to make common cause,
with criminals in Mozambique;
13.12 that the
plaintiff has been involved in illegal activities with criminals in
Mozambique; and
13.13 that the
plaintiff is morally corrupt.’
[14] The appellants in their plea
denied all the aforesaid allegations. In the alternative they raised
a plea of fair comment and
alleged that the statements in the
editorials and articles were not statements of fact, but comments
concerning matters of public
interest, namely the candidacy of
plaintiff for the post of Ekhurhuleni Metro Police Chief and his
unsuitability for the post; that
the comments were fair and that the
facts on which the comments were based were true.
[15] In answer to a request for
further particulars to identify each and every fact which the
appellants alleged to be true the appellants
replied that the facts
upon which the comments were based were the following:
‘
The
Plaintiff is a murderer as a result of him planting a bomb in Magoo’s
Bar during 1986, when several people were killed;
The Plaintiff was
detained in Mozambique on alleged arms trafficking between Mozambique
and South Africa.’
[16] In
summary, it is alleged by the respondent that the editorials and
articles are defamatory of him and impaired his dignity in
that it is
stated: (i) that he is not suited for the position of Head of the
Ekurhuleni Metro Police Force; (ii) that he is a criminal;
(iii) that
he is a murderer; and (iv) that he has been involved in illegal
activities with gun dealers in Mozambique.
1
The editorials and articles clearly do contain express statements to
the effect that the respondent is not suited for the position
of Head
of the Ekurhuleni Metro Police Force; that he is a criminal and that
he is a murderer. They also, by implication, contain
a statement that
the respondent is morally corrupt. Each of these statements would
affect the good name and reputation of the respondent
and is
therefore defamatory of him. Each of these statements is also
insulting of the respondent and would therefore have impaired
his
dignity.
2
The defences available in respect of defamation are also available in
respect of an impairment of dignity. I therefore do not consider
it
necessary to refer to both the impairment of the respondent’s
dignity and the defamation and shall henceforth, in dealing with
the
defences raised, only refer to the aspect of defamation.
[17] The court below held that
the allegations of fact commented upon in the editorials and articles
were essentially untrue and not
accurately stated and that the
defence of fair comment could for that reason not be sustained.
[18] The court below would seem
to have found that the statement that the respondent’s ‘dubious
flirtation with alleged gun dealers
in Mozambique’ amounted to a
statement that the respondent was actually involved in illegal
activities with gun dealers in Mozambique.
I do not agree. Reference
to the respondent’s activities in Mozambique is made in the ‘Here
comes McBride’ editorial, the ‘Bomber
McBride to sue The Citizen’
article and the ‘Beware ambush broadcasters’ article. In the
editorial it is said that the respondent
is a criminal ‘never mind
his dubious flirtation with alleged gun dealers in Mozambique’; in
the ‘Bomber McBride’ article
the editorial is repeated and stated
that in ‘1998 he was detained in a Mozambique jail on suspicion of
gun-running’; and in
the ‘Beware ambush broadcasters’ it is
said that ‘his track record as a multiple murderer and a suspect in
gun dealing make
him unsuitable as a metro police chief’. It is not
alleged that the respondent was actually involved in illegal
activities with
gun dealers in Mozambique. It is alleged that the
respondent’s flirtation with alleged gun dealers in Mozambique is
suspicious
and may have been criminal but that it is not necessary to
get to the bottom of that to determine whether he is a criminal
because
the murders that he committed put him firmly in that
category. In other words it is alleged that the respondent may have
been involved
in criminal gun dealing in Mozambique or that there are
facts indicating that he may have been involved in criminal gun
dealing in
Mozambique not that he was indeed involved in criminal gun
dealing. That allegation is itself defamatory of the respondent but
that
is not what he is complaining about, possibly for good reason,
such as a realisation that the defamation could be justified on the
basis of truth and public benefit.
[19] That leaves the defamatory
statements that the respondent is not suited for the position of Head
of the Ekurhuleni Metro Police
Force, that he is a criminal, a
murderer and morally corrupt. The statement that the respondent is a
criminal and that he is morally
corrupt derives from and thus does
not add anything to the statement that he is a murderer. It is
therefore only necessary to deal
with the statements that the
respondent is not suited for the position of Head of the Ekurhuleni
Metro Police Force and that he is
a murderer.
[20] The
publication of a defamatory statement gives rise to a presumption
that it’s publication was wrongful and with the intention
to
inflict injury. The onus is on a defendant to rebut one or other of
these presumptions on a preponderance of probabilities.
3
The lawfulness of a defamatory publication, as in the case of any
other ‘harmful act or omission is determined by the application
of
a general criterion of reasonableness based on considerations of
fairness, morality, policy and the Court’s perception of the
legal
convictions of the community’.
4
A number of standard defences to an allegation of unlawfulness have
nevertheless developed. One such defence is the defence of fair
comment raised by the appellants. Another such defence is the defence
of truth for the public benefit. The elements of the defence
of fair
comment are the following:
(i) the relevant statement must
constitute comment (or opinion);
(ii) the comment must be fair;
(iii) the facts commented upon
must be true; and
(iv) the
comment must be about a matter of public interest.
5
[21] According to the appellants’
plea the matter that was being commented upon, which was a matter of
public interest, was the
candidacy of the respondent for the post of
Ekurhuleni Metro Police Chief and his suitability for the post. The
true facts upon which
that comment was based were, according to the
appellants, the fact that the respondent was ‘a murderer as a
result of him planting
a bomb in Magoo’s Bar during 1986, when
several people were killed’ and the fact that the respondent ‘was
detained in Mozambique
on alleged arms trafficking between Mozambique
and South Africa’.
[22] In its judgment the court
below summarised the facts which were common cause as follows:
‘
[2] At
all material times during 1986 plaintiff was a member of Mkhonto we
Sizwe (“MK”), a military wing of the African National
Congress
which was then involved in an armed struggle for political liberation
against the apartheid security forces of the Republic
of South
Africa. On 14 June 1986 a unit of MK under the leadership of the
plaintiff and acting within the context of the liberation
struggle as
aforesaid, carried out an attack by planting and exploding a car bomb
outside the Magoo’s Bar / Why Not Restaurant,
in Durban and as a
result whereof three female patrons were killed and many other
patrons were injured. Plaintiff was subsequently
arrested, charged
and convicted and sentenced to death in 1987 for the three counts of
murder and 79 counts of attempted murder and
other charges related to
the operation.
[3] After some four
years in death row, plaintiff was reprieved from the death sentence
in 1991 and on 28 September 1992 he was released
from prison.
Plaintiff applied for amnesty to the TRC (Truth and Reconciliation
Commission) which was granted on 19 April 2001 in
terms of section 20
of the Promotion of National Unity and Reconciliation Act No 34 of
1995 (the TRC Act) for his conduct in the
armed struggle including
the attack on the Magoo’s Bar / Why Not Restaurant which was
carried out on 14 June 1986 and for which
he was convicted and
sentenced to death and subsequently reprieved.
[4] During March
1998 plaintiff was arrested and detained for six months in Mozambique
on allegations or suspicions of espionage,
criminal conspiracy and
gunrunning and was subsequently released without being charged after
the allegations against him were quashed
by the Supreme Court of
Mozambique. At the time plaintiff was employed as a foreign affairs
representative for the National Intelligence
Coordinating Committee
(NICCO) Plaintiff had travelled to Mozambique in his private or
personal capacity.’
[23] The question that arises is
whether the subsequent granting of amnesty to the respondent rendered
the statement that he was a
murderer false. In terms of the
Promotion
of National Unity and Reconciliation Act 34 of 1995
a committee known
as the Committee on Amnesty was established to consider applications
for amnesty. Amnesty could in terms of
s 20(1)
be granted in
respect of offences which related to ‘an act associated with a
political objective committed in the course of the
conflicts of the
past in accordance with the provisions of subsections (2) and (3)’.
For example, in terms of subsection (2)(d)
the offence had to be
committed by, amongst others, a member of a publicly known political
organisation or liberation movement in
the course and scope of his or
her duties and within the scope of his or her express or implied
authority. It had to be directed
against, amongst others, members of
the security forces of the State engaged in a political struggle
against that political organisation
or liberation movement and had to
be committed bona fide in furtherance of the struggle.
[24] Sections 20(7)(a), (8) and
(10) of the TRC Act provide as follows:
‘
(7)(a) No
person who has been granted amnesty in respect of an act, omission or
offence shall be criminally or civilly liable in respect
of such act,
omission or offence and no body or organisation or the State shall be
liable, and no person shall be vicariously liable,
for any such act,
omission or offence.’
‘
(8) If
any person –
(a) has been
charged with and is standing trial in respect of an offence
constituted by the act or omission in respect of which amnesty
is
granted in terms of this section; or
(b) has been
convicted of, and is awaiting the passing of sentence in respect of,
or is in custody for the purpose of serving a sentence
imposed in
respect of, an offence constituted by the act or omission in respect
of which amnesty is so granted,
the criminal
proceedings shall forthwith upon publication of the proclamation
referred to in subsection (6) become void or the sentence
so imposed
shall upon such publication lapse and the person so in custody shall
forthwith be released.’
‘
(10) Where
any person has been convicted of any offence constituted by an act or
omission associated with a political objective in
respect of which
amnesty has been granted in terms of this Act, any entry or record of
the conviction shall be deemed to be expunged
from all official
documents or records and the conviction shall for all purposes,
including the application of any Act of Parliament
or any other law,
be deemed not to have taken place: Provided that the Committee
6
may recommend to the authority concerned the taking of such measures
as it may deem necessary for the protection of the safety of
the
public.’
[25] The respondent was convicted
of murder but as a result of amnesty having been granted to him the
conviction is in terms of s 20(10)
to be deemed not to have
taken place and in terms of s 20(7)(a) he cannot be held
criminally or civilly liable for the offences
he had committed.
[26] The
appellants submitted that notwithstanding the granting of amnesty the
respondent was a murderer as it was a fact that he
had committed the
crime of murder and that he was convicted and sentenced to death for
such crime. They tried to derive some support
for this submission
from the decision of this court in
Du
Toit v Minister of Safety and Security and another
[2008] ZASCA 125
;
2009 (1) SA 176
(SCA) and the decision of
Constitutional Court on appeal to it.
7
In my view these decisions are of no assistance to the appellants.
That case dealt with the effect of amnesty on past events namely
the
legal consequences that flowed from the commission and conviction of
an offence which were complete before the date on which
amnesty was
granted.
[27] The epiloque to the
Constitution of the Republic of South Africa Act 200 of 1993 (the
Interim Constitution) which in terms of
s 232(4) thereof is
deemed to form part of the substance thereof, provided:
‘
This
Constitution provides a historic bridge between the past of a deeply
divided society characterised by strife, conflict, untold
suffering
and injustice, and a future founded on the recognition of human
rights, democracy and peaceful co-existence and development
opportunities for all South Africans, irrespective of colour, race,
class, belief or sex.
The pursuit of
national unity, the well-being of all South-African citizens and
peace require reconciliation between the people of
South Africa and
the reconstruction of society.
The adoption of this
Constitution lays the secure foundation for the people of South
Africa to transcend the divisions and strife
of the past, which
generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts
and a legacy of hatred,
fear, guilt and revenge.
These can now be
addressed on the basis that there is a need for understanding but not
for vengeance, a need for reparation but not
for retaliation, a need
for ubuntu but not for victimisation.
In order to advance
such reconciliation and 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 the
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.
With this
Constitution and these commitments we, the people of South Africa,
open a new chapter in the history of our country.’
[28] Pursuant to its obligation
in terms of the Interim Constitution Parliament passed the Promotion
of National Unity and Reconciliation
Act 34 of 1995 (‘the Act’).
The provisions of the epiloque were repeated in the preamble to the
Act. The long title reads: ‘To
provide for . . . the granting of
amnesty to persons who make full disclosure of all the relevant facts
relating to acts associated
with a political objective committed in
the course of the conflicts of the past . . ..’
[29] According
to the
Shorter Oxford
Dictionary
amnesty
means ‘forgetfulness; an intentional overlooking’ or ‘an act of
oblivion, a general overlooking or pardon of past offences
by the
ruling authority’. In
Azanian
Peoples Organisation (Azapo) and others v President of the Republic
of South Africa and others
[1996] ZACC 16
;
1996 (4) SA 671
(CC) para 35 Mahomed DP said in regard to the meaning
of the word:
‘
The
word has no inherently fixed technical meaning. Its origin is to be
found in the Greek concept of “amnestia” and it indicates
what is
described by
Webster’s
Dictionary
as “an act of oblivion”. The degree of oblivion or obliteration
must depend on the circumstances. It can, in certain circumstances,
be confined to immunity from criminal prosecutions and in other
circumstances be extended also to civil liability. Describing the
effects of amnesty in treaties concluded between belligerent parties,
a distinguished writer states:
“
An
amnesty is a complete forgetfulness of the past; and as the treaty of
peace is meant to put an end to every subject of discord,
the amnesty
should constitute its first article. Accordingly, such is the common
practice at the present day. But though the treaty
should make no
mention of it, the amnesty is necessarily included in it, from the
very nature of the agreement.
Since
each of the belligerents claims to have justice on his side, and
since there is no one to decide between them (Book III,
§
188), the condition in which affairs stand at the time of the treaty
must be regarded as their lawful status, and if the parties
wish to
make any change in it the treaty must contain an express stipulation
to that effect. Consequently all matters not mentioned
in the treaty
are to continue as they happen to be at the time the treaty is
concluded. This is also a result of the promised amnesty.
All
the injuries caused by the war are likewise forgotten; and no action
can lie on account of those for which the treaty does not
stipulate
that satisfaction shall be made; they are considered as never having
happened.
”’
[30] From the aforesaid it is
clear that the purpose of amnesty provided for in the Interim
Constitution was to advance reconciliation
and reconstruction of our
society on the basis that there is no need for retribution or
victimisation. Provision had to be made for
the reintegration into
the South African society of many people who had taken part in the
armed struggle for liberation. It is, amongst
other things, to give
effect to this intention that the Act was passed and that provision
was made that a person who had been granted
amnesty in respect of an
offence should not be criminally or civilly liable in respect of the
offence, that any entry or record of
the conviction should be deemed
to be expunged from all official documents or records and that the
conviction should for all purposes
be deemed not to have taken place.
I have no doubt that the intention was not only that people to whom
amnesty had been granted
should not be held criminally and civilly
liable for offences committed by them in the course of the conflicts
of the past and with
the political object of liberation, but also
that they should be considered not to have committed the offences and
that those offences
should not be held against them, so that they
could be reintegrated into society. Without an agreement on that
basis a negotiated
settlement may well not have been possible.
[31] The
intention was to close the book on human rights transgressions of the
past in order to achieve reconciliation. As was said
by the
Constitutional Court in the
Du
Toit
case in para 55:
‘
[T]he
primary aim of the Act was to use the closure acquired as a stepping
stone to reconciliation for the future. Amnesty was an
important tool
in this process and one without which the process would not have been
agreed to by all parties, and could not have
taken place.’
And in para 56:
‘
The
conscious decision by the legislature was that amnesty would allow
people not to be trapped in the painful past, but to be given
a
pardoned freedom to go forth and contribute to society. Amnesty may
forgive the past, but in South Africa it is intended to have
the
inherently prospective effect of national reconciliation and
nation-building, for the past can never be undone. Only the future
may be forged as desired.’
[32] In
the
Azapo
case Didcott J referring to a basic object promoted by the statute
said:
8
‘
Once
the truth about the iniquities of the past has been established and
made known, the book should be closed on them so that the
catharsis
thus engendered may divert the energies of the nation from a
preoccupation with anguish and rancour to a future directed
towards
the goal which both the postscript to the Constitution and the
preamble to the statute have set by declaring in turn that
“
.
. . the pursuit of national unity, the well-being of all South
African citizens and peace require reconciliation between the people
of South Africa and the reconstruction of society”
’
.
[33] For these reasons I am of
the view that once amnesty had been granted to the respondent he
could no longer be branded a criminal
and murderer in respect of the
offences in respect of which such amnesty had been granted to him.
That is not to say that the respondent’s
actions and the
consequences of his actions are to be considered not to have taken
place. It is a fact that the respondent placed
the bomb that killed a
number of people and it is a fact that he was convicted of the murder
of those people. The amnesty granted
to the respondent could not
obliterate those facts or erase them from the historical record but
had the effect that the respondent
is no longer considered to be a
criminal in respect of the deeds committed by him. The granting of
amnesty was an attempt to shape
the future not to undo the past. The
statement in the editorials and articles that the respondent is a
murderer is therefore false.
[34] I need not address the
question whether a defence of fair comment based on some facts which
are true and others which are not
true could succeed. Counsel for the
appellants did not submit that the defence of fair comment in respect
of the defamatory allegation
that the respondent was not suited for
appointment as Ekurhuleni Metro Police Chief should nevertheless
succeed on the basis that
although the allegation that the respondent
was a criminal and a murderer was not true, the allegation that there
were facts indicating
that he may have been involved in criminal gun
dealing in Mozambique was true. It is quite understandable that they
did not do so.
It is only in the first editorial, the ‘Bomber
McBride’ article (in which that editorial was repeated) and the
‘Beware ambush
broadcasters’ article that the comment is based on
the allegation that the appellant is a murderer as well as the
allegation that
he is a suspect in gun dealing. In the other
editorial and articles the comment is based solely on the allegation
that he is a murderer.
[35] It follows that the
appellant’s pleaded defence of fair comment on a matter of public
interest, being the suitability of the
respondent for appointment as
Ekurhuleni Metro Police Chief, should have been dismissed by the
court below on the ground that the
facts on which the comment was
based are not true.
[36] The statement that the
respondent is not suitable for appointment as Ekurhuleni Metro Police
Chief is not the only defamatory
statement on which the respondent’s
action was based. The action was also based on the allegation that
the respondent is a murderer.
In respect of this defamatory
allegation the appellants did not raise a defence apart from the
general denial of the respondent’s
allegations. The alternative
defence of fair comment namely that the statements made in the
editorials and articles were not statements
of fact but comments
concerning matters of public interest, was, for the reasons that
follow, not intended to apply to the allegation
that the respondent
is a murderer. First, it is not alleged that the question whether or
not he was a murderer was of public interest,
the public interest
alleged is ‘the candidacy of (the respondent) for the post of
Ekurhuleni Metro Police Chief and his suitability
therefor’; and
second, it is specifically stated in the respondent’s further
particulars that the alleged comments were based
on the ‘true’
fact that the respondent was a murderer.
[37] Before
us counsel for the appellants nevertheless submitted that the
statement that the respondent was a murderer was not a statement
of
fact but in itself constituted fair comment on the facts stated in
the article that appeared in the Citizen of 10 September 2003
‘Mc
Bride tipped to head Metro cops’, ie on the facts that led to his
conviction on several charges of murder and attempted murder,
as well
as the fact that he had been granted amnesty. Counsel for the
appellants submitted that the authors of the editorials and
articles
were simply expressing their opinion that notwithstanding amnesty the
respondent was a murderer. Counsel contended that
the expression of
that opinion was fair. Not having pleaded this defence and having
stated expressly that it was a fact that the
respondent was a
murderer, the defence of fair comment is, on the pleadings, not open
to the appellants in respect of the allegation
that the respondent is
a murderer. See in this regard
Golding
v Torch Printing & Publishing Co (Pty) Ltd and others
1948 (3) SA 1067
(C) at 1083 where Ogilvie Thompson AJ said:
‘
As
a matter of pleading, it is my opinion essential that when the
defence of fair comment is raised the plea should, by appropriate
averment, set out the essential elements whereupon, in the light of
the circumstances of the particular case, the defence is founded.’
But the defence would in any
event have failed had it been properly raised.
[38] Whether
the effect of amnesty is that a person who had been convicted of
murder is no longer a murderer is a matter on which
opinions may
differ and such opinion if genuinely held and relevant may constitute
fair comment.
9
The question is however whether the statement was an expression of
opinion as contended for by the appellants.
[39] The appellants submitted
that it is explicit in the respondent’s cause of action that
readers of The Citizen would have understood
the assertion that he is
a murderer as a comment or opinion. The respondent did plead that the
readers of The Citizen would have
understood the editorials and
articles to mean that he is a murderer (i) despite him having been a
member of MK; (ii) despite him
having participated in the attack on
the Magoo’s bar as part of the armed struggle waged by the ANC and
MK to eradicate the system
of apartheid; and (iii) despite him having
been granted amnesty. These allegations were, however, made as an
alternative to the allegation
that the editorials and articles were
understood by the readers of The Citizen to mean that the respondent
is a murderer. The question
thus remains whether the allegation that
the respondent is a murderer was made as a statement of fact or
amounted to comment.
[40] In
Marais v Richard and
another
10
this court held that 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 have understood it.
Jansen JA, who delivered the judgment, said that whether
the ordinary
reasonable reader would have regarded it as a statement of fact or an
expression of opinion should depend largely on
the content of the
allegation, the context in which it is used and the circumstances
known to the reader.
[41] A
statement that the respondent is a murderer may be intended as a
statement of fact or may be intended as a comment based on
certain
facts. Whether the ordinary reasonable reader would understand it as
the one or the other depends on all the circumstances.
If made
without reference, express or implied, to the facts upon which the
statement is based, more particularly the fact that amnesty
had been
granted to the respondent, it will be understood as a statement of
fact and not as comment.
11
Absent amnesty, it is a well known fact that the respondent is a
murderer and it is unlikely that anybody who chose to ignore amnesty
would be expressing an opinion that he is a murderer.
[42] Counsel
for the appellants submitted that in the light of all the relevant
facts relating to the offences committed by the respondent
including
the fact that amnesty had been granted to him which were notorious
and had been mentioned in other articles published in
The Citizen,
the ordinary reasonable reader would have interpreted the statements
that the respondent is a murderer as an expression
of opinion and not
a statement of fact. However, if the statement that the respondent is
a murderer was intended as an expression
of opinion or a comment, it
is in the editorials and articles themselves that such an implication
(either express or implied) of
the facts upon which the opinion or
comment is expressed must be found. That is so because, as stated
above, whatever the prior knowledge
of the readers about the subject
matter, the assertion that the respondent is a murderer may be either
a statement of fact or an
expression of opinion and unless, having
regard to all the circumstances, there is some indication express or
implied in the editorials
and articles that it is the expression of
an opinion or inference in respect of the relevant facts, it would be
understood by ordinary
reasonable readers as a statement of fact.
Compare in this regard
Telnikoff
v Matusevitch
[1992] UKHL 2
;
[1992] 2
AC 343
(HL). That case concerned a libel action brought by Telnikoff
against Matusevitch based on a letter written by Matusevitch to a
newspaper
in reaction to an article written by Telnikoff and
published by the newspaper. One of the issues to be decided was
whether statements
made in the letter were statements of fact or
comment and the question arose whether regard could be had to the
whole of the article,
not only the sentence from it quoted in the
letter, to determine this issue. The house of lords held that it was
not permissible
to do so. Lord Keith of Kinkel said:
12
‘
In
my opinion the letter must be considered on its own. The readers of
the letter must have included a substantial number of persons
who had
not read the article or who, if they had read it, did not have its
terms fully in mind. If to such persons the letter appeared
in
paragraphs 6 and 7 to contain statements of fact about what the
plaintiff had written in his article, which as I have already
indicated might well be the case, then in the eyes of those persons
the plaintiff would clearly be defamed. The matter cannot turn
on the
likelihood or otherwise of readers of the letter having read the
article. In some cases many readers of a criticism of some
subject
matter may be familiar with that subject matter but in other cases
very few may be, for example where that subject matter
is a speech
delivered to a limited audience. The principle must be the same in
either case.’
He added at 354B-C:
‘
There
can be no doubt that where the words complained of are clearly to be
recognised as comment, and the subject matter commented
on is
identified, then that subject matter must be looked at to determine
whether the comment is fair.’
[43] In the ‘Here comes
McBride’ editorial it is stated that the respondent committed cold
blooded multiple murders. That statement
is repeated in the article
‘Bomber McBride to sue The Citizen’ and then the author of the
article added:
‘
McBride
was found guilty of the 1986 Durban bombings in which three civilian
women were killed.
He was released in
September 1992, at the same time as multiple murderer Barend
Strydom.’
In the ‘Beware ambush
broadcasters’ article it is said that the respondent has a track
record as a multiple murderer. In the Kenny
article reference is
again made to the murders committed by the respondent and he is
unfavourably compared with Clive Derby-Lewis
and Barend Strydom.
Clive Derby-Lewis was convicted of the murder of Chris Hani and
Barend Strydom was convicted of the murder of
several people. In the
‘Mbeki no conciliator’ article reference is again made to ‘Mc
Bride’s deed in murdering civilians’.
In the editorial ‘McBride
cops job’ it is said:
‘
The
bomber has support in high places, but that doesn’t detract from
the evil of his multiple murders, or make him a suitable policeman.’
In none of these editorials or
articles is any mention made of the fact that amnesty had been
granted to the respondent and in none
of them is any express or
implied indication to be found that a comment or opinion in respect
of the effect of amnesty on the offences
committed by the respondent
is being expressed. In the absence of any such indication it is not
possible to construe the statement
that the respondent is a murderer
simply as an expression of an opinion on the effect of amnesty.
Moreover, in the Kenny article
the respondent is classified in the
same category as Derby-Lewis and Barend Strydom both of whom had not
been granted amnesty which
in itself is an indication that, far from
expressing an opinion on the effect of amnesty, the fact that amnesty
had been granted
to the respondent was ignored by the author.
[44] For these reasons, had a
defence of fair comment been raised in respect of the defamatory
allegation that the respondent is a
murderer, it would not have
succeeded. It follows that the respondent’s action in the court
below in so far as it is based on the
defamatory allegations that he
is unsuited to be appointed to the post of Ekhurhuleni Metro Police
Chief and that he is a criminal,
a murderer and morally corrupt
should have succeeded whereas it should not have succeeded in respect
of the allegation that he had
been involved in illegal activities
with gun dealers in Mozambique.
[45] I now turn to the question
of damages. The court below awarded R100 000 damages against the
first to fourth appellants jointly
and severally in respect of the
Kenny article and an additional R100 000 against the first to
third appellants in respect of
the other articles. It must have done
so because the Kenny article contained no reference to the
respondent’s activities in Mozambique
and because the statement
that the respondent is a murderer were repeated several times over a
period of more than a month.
[46] Before us counsel for the
appellants did not persist in an argument advanced in their heads of
argument that, in the event of
this court finding that the appeal in
respect of the appellants’ liability should be dismissed the court
below misdirected itself
in respect of its award of damages. However,
the damages awarded against the first, second and third appellants
have to be adjusted
in the light of my finding that the court below
should not have found that they had made the defamatory allegation
that the respondent
had been involved in illegal activities with gun
dealers in Mozambique. In my view a fair and just adjustment would be
to reduce
the award against the first, second and third appellants by
an amount of R50 000.
[47] The downward adjustment of
the damages awarded to the respondent should not have any effect on
the costs order made by the court
below. On appeal the fourth
appellant has achieved no success. He should therefore be liable for
the respondent’s costs of appeal,
but only in respect of the claim
against him. The other appellants have achieved a measure of success
in having had the damages awarded
against them reduced by R50 000.
But although the damages award, which is a composite award in respect
of several claims, is
reduced, their appeal is largely unsuccessful.
In this court the question whether the respondent’s action should
have succeeded
in respect of the allegations in respect of his
activities in Mozambique was of relatively minor importance. Some
recognition should
nevertheless be given in the costs order to the
limited success achieved by the appellants on appeal. In my view it
would be fair
and just if the respondent is awarded 75% of his costs
on appeal against the appellants jointly and severally.
[48] In the result the following
order is made:
(i) The appeal is partially
upheld.
(ii) The appellants are ordered,
jointly and severally, to pay 75% of the respondent’s costs.
(iii) The order of the court
below is set aside and replaced with the following order:
‘(a) The fourth, fifth and
sixth defendants are ordered, jointly and severally, to pay to the
plaintiff the sum of R150 000
together with interest thereon at
the rate of 15,5% per annum calculated 14 days from date of service
of summons to date of payment.
(b) The seventh defendant is
ordered jointly and severally with the fourth, fifth and sixth
defendants to pay to the plaintiff R100 000
of the said sum of
R150 000 in paragraph (a) above, together with interest thereon
at the rate of 15,5% per annum calculated
14 days from date of
service of summons to date of payment.
(c) The fourth, fifth, sixth and
seventh defendants are ordered jointly and severally to pay to
plaintiff the costs of suit.’
_________________
P E STREICHER
JUDGE OF APPEAL
MTHIYANE
JA
: (dissenting)
[49] I have had the benefit of
reading the judgment of my colleague, Streicher JA and regret that I
am unable to agree with the reasoning
and the conclusion to which he
has come. The reason, which relates to the claim of defamation based
on the statement that the plaintiff
was unfit for appointment as a
Metro Police Chief because he is a murderer, is that we differ over
the proper interpretation of the
relevant provisions of the Promotion
of National Unity and Reconciliation Act 34 of 1995 (‘the TRC
Act’). That difference will
need to be explained more fully after
dealing with the basis for the respondent’s (plaintiff’s) claim
and the relevant legal
principles. Broadly speaking however we are in
agreement, as he says in para 41 that as a matter of fact the
plaintiff is a murderer.
Where we disagree is in the conclusion (in
para 33) that the effect of the provisions of the TRC Act is that he
may no longer be
described as such and is no longer to be regarded as
a murderer thereby rendering a statement to that effect false and
hence fatal
to the defence of fair comment advanced by the appellants
(the defendants). In my view the relevant provisions of the TRC Act
under
which amnesty is granted do not have that effect. The result of
our disagreement on this point is that I would uphold the defence
of
fair comment and also the appeal.
[50] The statements relevant to
the plaintiff’s action are contained in two editorials and five
articles published in The Citizen
newspapers between September and
October 2003. In the offending statements the authors contended that
the plaintiff was not suitable
for appointment as the Head of the
Ekurhuleni Metro Police Force for two reasons. First, that he is a
murderer and in consequence
he is also described in the first
editorial as a criminal. The articles and editorials cite the bombing
by the plaintiff of Magoo’s
bar, his conviction and sentence for
murder and attempted murder to justify their stance. Second,
reference is made to the plaintiff’s
arrest and detention in
Mozambique on the suspicion of gun-running although this is clearly
treated as being of less significance.
[51] The plaintiff took offence
to these statements and instituted action for defamation, alleging in
his particulars of claim that
the said allegations were defamatory
(and injurious) of him, because he had been granted amnesty by the
Truth and Reconciliation
Commission (the TRC) for the murders and the
other offences he had committed, and his convictions had thereby been
expunged. He took
offence to the allegations pertaining to his arrest
and detention in Mozambique claiming that they amounted to saying
that he had
been involved in unlawful activities involving gun
dealers in that country.
[52] In their defence the
defendants pleaded that the published statements constitute comment
or opinion, which was fair and related
to a matter in the public
interest. They contended that the factual allegations being commented
upon were true.
[53] Although the
plaintiff had pleaded that the allegation that he was unsuitable for
the post of Metro Police Chief was in itself
defamatory of him, the
evidence presented at the trial on his behalf and by himself limited
his complaint to two grounds. The first
was that he was labelled a
murderer and a criminal notwithstanding that he had been granted
amnesty under the TRC Act. The second
was that the statements
relating to his arrest and detention carried the imputation that he
had consorted with gun-runners in Mozambique
notwithstanding that the
charges against him arising out of these allegations had been quashed
by the Supreme Court of Mozambique.
[54] At the trial it seemed that
the allegation in relation to the plaintiff’s suitability for the
position of police chief fell
away as a basis for the defamation
claim, when reliance thereon was disavowed by the plaintiff. The
plaintiff’s apparent change
of tack was recorded and dealt with by
Maluleke J when he said:
‘
it
was correctly conceded on behalf of the plaintiff that the statements
that “he [meaning the plaintiff] is blatantly unsuited
for the post
of Ekurhuleni Metro Police Chief” and is, not qualified for the
job’ qualify to be comment or an opinion and that
such a statement
is not an allegation of fact and cannot be defamatory.’
My colleague’s
judgment proceeds on the basis that the plaintiff’s suitability was
still in issue on appeal. With this I have
no difficulty. Even if it
is in issue it is, in my view, disposed of together with the defence
relating to the claim that he is a
murderer. If it is fair comment
then the statement that he is not suitable is also justified on the
same basis.
[55] In
conclusion Maluleke J held that the impugned statements (relating to
the murder and the allegations of gun-running
in
Mozambique) could not be understood by the right thinking reader of
The Citizen to be ‘a comment or an opinion but rather as
an
allegation of fact’ which could only be justified if it was true or
accurately stated.’ The learned judge continued that ‘the
statement that the plaintiff is a “criminal, a coldblooded multiple
murderer” . . . who behaves suspiciously with gun-runners
in
Mozambique will be defamatory in the absence of proof that such
allegations are in fact true and accurately stated.’
[56] In my view the above
conclusion is in the context of the offending articles read as a
whole, flawed as I will attempt to show
presently.
[57] Before dealing with the
question whether the defence of fair comment is sustainable it is
necessary to refer to the relevant
texts. They comprise the two
editorials and the articles quoted in paragraphs 3 to 10 of my
colleague’s judgment. For convenience
they will not be repeated
here save for two which will be dealt with in full. For the rest it
will suffice to refer merely to the
headings of the texts.
[58] Of the articles referred to
above that which appeared on 10 September 2003 and quoted in
paragraph 3 does not form the subject
of the complaint. The article
in question made the front page of The Citizen under the heading
‘McBride tipped to head Metro Cops’
and dealt with the
possibility that the plaintiff might be appointed as the new chief of
police for the Ekurhuleni Metropolitan Municipality.
It traced the
plaintiff’s past activities and alluded to the fact that he had
served four years on death row upon being convicted
of murder and
other offences, arising out the explosion of a bomb he had planted in
consequence of which three women were killed
and 79 persons injured.
The article stated that the plaintiff was widely condemned for the
attack on what was perceived to be a soft
civilian target, although
the plaintiff insisted that the pub, the site of the attack, was
frequented by SADF military personnel
from the main local barracks.
The article referred to his application for and the grant of amnesty
to him by the TRC. It was also
reported that the plaintiff was on a
later occasion arrested, detained and charged with gun-running in
Mozambique and sent home.
[59] The above article set the
scene for the fierce and robust debate that followed on the
plaintiff’s suitability for appointment
to the post of police
chief. The impact was felt in the higher echelons of political power,
which saw the then President, Thabo Mbeki,
joining the debate through
his weekly news letter. The president was critical of those who
opposed the appointment of the plaintiff.
The full text of his
comment appears in paragraph 8 of my colleague’s judgment.
[60] Subsequent to what may be
referred to as a forerunner article on 10 September 2003, The Citizen
carried an editorial on 11 September
entitled ‘Here comes McBride’.
I quote the text in full. It reads as follows:
‘
Robert
McBride’s candidacy for the post of Metro Police Chief is
indicative of the ANC’s attitude to crime.
They can’t be
serious, he is blatantly unsuited, unless his backers support the
dubious philosophy: set a criminal to catch a criminal.
Make no mistake that
is what he is. The cold-blooded multiple murders which he committed
in the Magoo’s Bar bombing puts him firmly
in that category.
Never mind his
dubious flirtations with alleged gun dealers in Mozambique. Those who
recommend him should have their heads read. McBride
is not qualified
for the job. If he is appointed it will be a slap in the face for all
those crime battered folk on the East Rand
who look to the government
for protection.’
[61] The second item I wish to
refer to appeared in The Citizen on 21 October 2003 and is referred
to in paragraph 10 of my colleague’s
judgment as ‘the Kenny
article’. It reads as follows:
‘
At
a time of public conflict within the ANC government . . . President
Mbeki’s devoted his weekly newsletter to attacking The Citizen
for
suggesting that Robert McBride is unsuitable for high office in the
Police.
The three most
notorious non-government killers of the later apartheid period were
Clive Derby-Lewis, Barend Strydom and Robert McBride.
Each was a wicked
coward who obstructed the road to democracy.
Derby-Lewis who
targeted a specific enemy, Chris Hani, is the only one not to be
freed. The other two killed innocent people. Strydom
looked his
helpless victims in the eyes before he murdered them.
McBride did not even
do this. He planted a bomb in a bar and slunk off not caring whether
he killed men, women or children.
It was the act of
human scum.
. . .
McBride’s bomb was
planted in 1986, at a time when apartheid was clearly in retreat and
when legal avenues of resistance were opening
up.
His murder of the
innocent women strengthened the hand of die-hard apartheid
supporters, and had the effect of prolonging the wretched
regime.
Contrary to Mbeki’s
suggestion, I know of few public voices and not that of The Citizen
who opposed the idea of the TRC.
Court cases against the
criminals of the apartheid era would have taken a thousand years.
The TRC was well
conceived. Its execution however, was criticised for bias.
The more apartheid
reformed, the greater the violence against it.
When it effectively
ended in 1990, the violence reached its zenith.
There were more
political murders per year from 1990 to 1994 than in any year of
apartheid.
These were mostly
ignored by the TRC.
If the ANC regards
Robert McBride as a hero of the struggle it should erect a statue of
him ─ perhaps standing majestically over
the mangled remains of the
women he slaughtered.
If he wants to serve
the community, he should work among Aids orphans or help improve the
provisions of pensions to the poor.
He should most
certainly not be a policeman.’
[62] In
my view on a proper reading of the above articles the right thinking
reader of The Citizen would have been left with the impression
that
the authors are clearly and principally commenting or expressing an
opinion on the suitability of the plaintiff as a candidate
for
appointment as police chief. As I see it the reader would have
understood the writers to be arguing, rightly or wrongly, that
because of the plaintiff’s involvement in the bombing of Magoo’s
bar and the Why Not restaurant in 1986, which had fatal and
disastrous consequences for many innocent people, and his subsequent
conviction and sentence, he ought not to be appointed to the
post of
chief law enforcement officer of a large municipality.
13
Despite the strong and robust language used and the somewhat extreme
(if not, right-wing) views expressed, the articles and editorials
remain comment or opinion on the issue of his suitability for the
position of the Metro Police Chief. The other articles I have not
quoted also deal with the plaintiff’s suitability for that post.
[63] I agree with Maluleke J that
the appointment of a police chief is a matter of public interest. I
also think judicial notice can
be taken of the fact that with the
advent of the Constitution and the new democratic order South African
citizens feel very strongly
about who gets to be appointed to public
office and do not hesitate to venture opinions in matters of that
nature. Accordingly the
right thinking reader of The Citizen would
have to be aware of this and his or her right to freely express an
opinion in matters
of public interest. In this regard it has been
said:
‘
In
cases of comment on a matter of public interest the limits of comment
are very wide indeed. This is especially so in the case of
public
men. Those who fill public positions must not be too thin-skinned in
reference to comments made upon them.’
(
Pienaar
& Another v Argus Printing and Publishing Co Ltd
)
14
It therefore follows that the impugned statements would
prima
facie
have been
protected as free speech.
[64] In
Khumalo & Others v
Holomisa
15
we were reminded of the importance of the right of freedom of
expression. This right has been acknowledged by the Constitutional
Court and other South African courts as integral to democratic
society for many reasons. We are also reminded that freedom of
expression
is constitutive of the dignity and autonomy of human
beings and that without it the ability of citizens to make
responsible political
decisions and to participate effectively in
public life would be stifled. Dealing with the role of the media
(that is The Citizen
in this case, as it is one of the defendants)
the Constitutional Court said:
‘
In a democratic society,
then, the mass media play a role of undeniable importance. They bear
an obligation to provide citizens both
with information and with a
platform for the exchange of ideas which is crucial to the
development of a democratic culture. As primary
agents of the
dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy and they
have a
constitutional duty to act with vigour, courage, integrity and
responsibility. The manner in which the media carry out their
constitutional mandate will have a significant impact on the
development of our democratic society. If the media are scrupulous
and
reliable in the performance of their constitutional obligations,
they will invigorate and strengthen our fledging democracy. If they
vacillate in the performance of their duties, the constitutional
goals will be imperilled. The Constitution thus asserts and protects
the media in the performance of their obligations to the broader
society, principally through the provisions of s 16.’
16
Section 16 reads as follows:
‘
(1) Everyone
has the right to freedom of expression, which includes ─
freedom of the
press and other media;
freedom to receive
or impart information or ideas . . .’.
[65] The
right to free speech is of course not unlimited as pointed out in
Khumalo
17
and must be construed in the context of the values enshrined in the
Constitution, in particular the values of human dignity, freedom
and
equality. It is the task of the law of defamation to hold a balance
between these competing interests.
[66] Against
the background of the above broad principles of the right to free
speech and expression of opinion and the limits placed
on that by the
countervailing interest in dignity it remains to consider whether the
defence of fair comment or opinion advanced
by the defendants is
sustainable. The nature of the defence was articulated by Cameron JA
in
Hardaker v Phillips
18
as follows:
‘
Defendants
in this country first sought to invoke the deference as early as the
19
th
century; and it was authoritatively imported into our law from the
English law of libel nearly 90 years ago in
Crawford
v Albu
(1917 AD 102
at 114.) Innes CJ explained that the defence “rests
upon the right of every person to express his real judgment or
opinion upon
matters of public interest.”’
Drawing
on that explanation by Innes CJ this court in
Marais
v Richard & ‘n Ander
19
summarised the requirements of the defence as follows: (i) The
statement must constitute comment or opinion; (ii) it must be fair;
(iii) the factual allegations being commented upon must be true; and
(iv) the comment must relate to a matter of public interest.
If the
defence of fair comment is well-founded it follows that a claim for
defamation that is based on the facts on which that comment
is based
must also fail because it will be justified.
[67] I
turn to consider whether the impugned statements comply with the
requirements of fair comment or opinion. The test for fair
comment is
whether the reasonable reader would understand the statements as a
comment. One of the hallmarks of comment is that it
is connected to
and derived from discernible fact. In each of the offending
statements it is clear that the authors are expressing
an opinion as
to the suitability of the plaintiff as a candidate for the post of
police chief. The two editorials and the articles
that caused offence
appear to be part of a series of interrelated commentary on the
suitability of the plaintiff as a candidate for
the position of
police chief. One has only to consider the sequence and context in
which the statements are made to come to the conclusion
that this
constitutes comment or opinion. The article dated 10 September 2003
entitled ‘McBride tipped to head Metro cops’ provided
the
background facts and served as a launching pad for the subsequent
editorials and the rest of the articles on the subject of the
plaintiff’s pending appointment to the position he had applied for.
The location of the two editorials within the comment and opinion
section of the newspaper and the proper construction to be placed on
the editorials and articles suggest nothing other than comment
and
free expression of views as to whether the plaintiff should be
appointed as police chief. Accordingly, the conclusion is in my
view
inescapable that the impugned statements constitute comment or
opinion and requirement (i) in
Marais
v Richard
has
therefore been met. The concluding sentence in the Kenny article says
it all where it is asserted:
‘
He
should mostly certainly not be made a policeman.’
It is arguable that the reference
in the article to the plaintiff being a murderer was also comment or
opinion to advance the view
that the plaintiff was not the right
person for the job but in view of my later conclusions it is
unnecessary for me to explore this.
The statement that he was a
criminal is clearly dependent upon the statement that he is a
murderer. If the latter is correct the
plaintiff can hardly complain
about the former. It is the factual correctness of the latter
statement that matters.
[68] To
this may be added the fact that the plaintiff was a public figure,
having previously been the subject matter of public commentary,
on
occasion both controversial and critical, and the focus of many a
newspaper publication. Where one is dealing with the criticism
of a
public figure a measure of leeway is allowed by our courts and the
limits of public criticism are wider as compared to a private
individual (
Mthembi-Mahanyele
v Mail & Guardian Ltd
).
20
[69] The
second requirement is that the offending statement ‘must be fair’.
What the authors of the editorials and the articles
did was to base
their assertions that the plaintiff was not suitable for appointment
on two grounds namely that the plaintiff had
committed murder and
other crimes for which he was convicted and sentenced to death. In
their minds, rightly or wrongly, a person
with that track record
ought not to be a police chief. The second matter that they advanced
as a disqualification was his alleged
activities in Mozambique for
which he was arrested and detained for 6 months. The question is
whether, based on those matters, the
comment that the plaintiff was
unsuited for appointment as a Metro police chief was fair. In
determining whether the comment is ‘fair’
there is no room for
consideration of the merit of the comment of opinion. As Cameron JA
observed in
Hardaker
,
21
‘
More
importantly, whether the jibe is “fair” does not in law depend
solely or even principally on reason or logic. In
Crawford
v Albu
,
Innes CJ suggested that the use of the word “fair” in connection
with the defence “is not very fortunate”. This is because
it is
not what the court thinks is fair (a critical comment or opinion,
Innes CJ said, need not “necessarily commend itself to
the judgment
of the Court”). Nor does the comment have to “be impartial or
well-balanced”. Indeed, “fair” in this context
means only that
the opinion expressed must be one that “a fair man, however extreme
his views may be, might honestly have, even
if the views are
prejudiced”. Hence Innes CJ's observation that the defendant “must
justify the facts; but he need not justify
the comment”.’
[70] I have already alluded to
the fact that the views expressed in the impugned statement may well
be regarded as extreme or even
right-wing but on the above test they
cannot be taken to be unfair. To succeed in their defence all that
was required of the defendants
was to justify the facts and not their
comment and it was sufficient for them to show that they were
expressing a genuine view on
the subject of whether the plaintiff
should be appointed as police chief. The plaintiff has not raised
malice on the part of the
defendants and none has been proved.
Accordingly, requirement (ii) relating to fairness has been met.
[71] The
third requirement, which holds the key to the outcome of this case,
is that the factual allegations being commented upon
must be true. If
they are and the defence of fair comment is established in relation
to the comment or opinion based on those facts
then it follows
a
fortiori
that the
publication of the stated fact is justified. The statement that the
plaintiff was not suitable for appointment was not a
factual
allegation. It was a comment and as indicated above the plaintiff,
rightly or wrongly, conceded that it cannot found a claim
for
defamation. The allegations in relation to murder and the commission
by the plaintiff of the other crimes were expressly said
to be the
facts on which the comment or opinion on the suitability of the
plaintiff for appointment as chief of the Metro Police
was based.
Their factual accuracy is thus fundamental.
[72] In
principle I have difficulty with the notion that a person who has
been convicted of the crime of murder may not be described
as a
murderer or as a criminal if he has been granted amnesty. In
Crawford
v Albu
,
22
Innes CJ had occasion to address the subject where he said:
‘
The
ordinary meaning of criminal is one who has committed a crime, that
is, an offence against society punishable by the State. As
generally
used it connotes moral guilt.’
The plaintiff placed a
car bomb outside a bar and when it exploded three people were killed
and many injured. This is not in dispute
and he does not cavil at
being described as a ‘bomber’. Nor does he suggest that his
conviction on charges of murder and attempted
murder was wrong. My
colleague says that these facts cannot be obliterated from the
historical record and that it is a well known
fact that he is a
murderer, but then goes on to suggest that the granting of amnesty
rendered that fact false ─ a suggestion with
which I join issue.
This is by no means intended to downplay the broader motives which
the plaintiff may have had, namely to free
the then downtrodden
majority of the people of this country from the evil system of
apartheid.
[73] It follows therefore that
the reference to the plaintiff as a murderer or a criminal is
strictly speaking factually correct.
The question is whether it is in
law rendered untrue or false by the granting of amnesty. In my view
the TRC Act does not have this
effect. The consequences of the
granting of amnesty in respect of the murder and other offences
committed by the plaintiff and for
which he was convicted is governed
by s 20 of the TRC Act. The relevant portion of s 20 reads as
follows:
‘
(7)
(a) No person who has been granted amnesty in respect of an act,
omission or offence shall be criminally or civilly liable . .
. and
no person shall be vicariously liable, for any such act, omission or
offence.’
‘
(8)
If any person ─
. . .
has been convicted
of, . . . an offence constituted by the act or omission in respect
of which amnesty is so granted . . . the
sentence so imposed shall
upon such publication lapse . . .’.
Section 20(10) reads as follows:
‘
Where
any person has been convicted of any offence constituted by an act or
omission associated with a political objective in respect
of which
amnesty has been granted in terms of the Act,
any
entry or record of the conviction shall be deemed to be expunged from
all official documents or records
and the conviction shall for all purposes, including the application
of any Act of Parliament or any other law, be deemed not to
have
taken place: Provided that the Committee may recommend to the
authority concerned the taking of such measures as it may deem
necessary for the protection of the safety of the public.’
[Emphasis added]
[74] The consequences of
a grant of amnesty are dealt with first in s 20(7)(a), which provides
that no person who has been granted
amnesty ‘shall be criminally or
civilly liable’ in respect of the actions that gave rise to the
application for and grant of
amnesty. The later provisions of that
section deal with the situation where criminal or civil proceedings
have been commenced and
held in abeyance pending consideration of the
application for amnesty and also with the position of persons who
have already been
tried and sentenced for crimes in respect of which
amnesty is granted. In the former instance the grant of amnesty puts
an end to
the proceedings and in the latter the prior criminal
proceedings are rendered void, the sentence imposed lapses and the
person is
released. In terms of s 20(10) any entry or record of
the conviction is deemed to be expunged from all official documents
or
records and the conviction shall ‘for all purposes’ be deemed
not to have taken place. It is this last provision that is relevant
for present purposes.
[75] In
Du Toit v Minister of
Safety and Security & Another
23
the Constitutional
Court considered the scope and effect of s 20(10) and said:
‘
The
section is couched in very broad terms and appears capable of the
widest possible interpretation. A purely literal and decontextualised
reading might suggest that the grant of amnesty has the effect of
expunging not only the record of the conviction and sentence imposed
on the perpetrator, but also all consequences that follow that
conviction and sentence, past, present and future. There are,
however,
serious difficulties with that interpretation.
24
Read
in its context it is inconceivable that the purpose of s 20(10) of
the Reconciliation Act could be the undoing of the past to
a
limitless degree. Not even the applicant contends for unrestricted
retrospectivity. For, indeed, factual events that occurred in
the
past cannot be undone.’
25
In that case the Constitutional
Court held that the effect of a grant of amnesty was not to reverse
the consequence of the appellant’s
conviction that his service with
the South African Police Services was terminated in accordance with
the regulations governing that
service. It is significant that in
doing so it said that an interpretation of s 20(10) that it
expunged all the consequences
of the appellant’s conviction and
sentence including future consequences occasioned serious
difficulties. In my view such an interpretation
in the present case
illustrates the legitimacy of that concern.
[76] The plaintiff contends that
the effect of the grant of amnesty is that it is now impermissible to
say that he committed murder
or is a murderer irrespective of the
factual accuracy of that description. That is a far-reaching
construction of s 20(10) that
does not appear expressly in the
language of the section. It is necessary to consider that language in
order to see what it does
say before turning to consider from whence
the respondent derives his contention.
[77] In the first place what the
section says expressly is that the entry or record of any conviction
shall be deemed to be expunged
from all official documents or
records. In other words the records of conviction that are produced
in criminal courts on a daily
basis in this country on the form SAP
69 are, in the case of a person granted amnesty, to be read on the
basis that any reference
to their convictions are expunged. Any other
official record kept for any purpose that refers to those convictions
is to be read
as if reference to it had been expunged. The purpose of
the deeming provision is to avoid the need to trawl through all
public documents
that record the conviction and amend them to delete
that reference. Instead the simpler expedient is adopted of deeming
such reference
to have been expunged. Accordingly all public records
of the plaintiff’s conviction are effectively expunged and show
that, as
far as official records in this country are concerned, he
has not been convicted of the crime of murder.
[78] Altering public records is
one thing, but expunging from the historical record the fact of what
the plaintiff did is another.
That can only be said to follow, if at
all, from the further provision that his ‘conviction shall for all
purposes . . . be deemed
not to have taken place’. However this
relates only to his conviction and is a ‘catch-all’ provision
intended to supplement
the deemed expungement of the convictions from
official records. It does not in terms relate to what may be said
about the plaintiff
arising from the conduct that gave rise to the
application for and grant of amnesty. The section nowhere says that
it is no longer
permissible to refer to what the plaintiff did that
caused him to apply for amnesty. That would be contrary to the
requirement of
his application that he make a full disclosure to the
Committee on Amnesty of all relevant facts concerning the act,
omission or
offence associated with a political object in respect of
which he sought amnesty. In the case of the plaintiff those facts are
set
out in the passage from the judgment of the court below quoted in
paras 22 and 33 of my colleague’s judgment. The offences were
the
murders and attempted murders he committed when he planted a car bomb
outside Magoo’s Bar/Why Not Restaurant in Durban, killing
three
women and injuring many other patrons. Those are part of the public
and historical record of this country. As Langa CJ said
in the
passage quoted above ‘factual events that occurred in the past
cannot be undone’. If, as my colleague says, they are part
of the
historical record and not obliterated by the grant of amnesty I fail
to see on what basis it has become impermissible to say
simply and in
summary of their effect that the plaintiff is a murderer. That is a
conventional description in common parlance of
someone who
perpetrates such acts and to say it is false in these editorials and
articles is, with respect, not correct and involves
an alteration of
the historical record.
[79] It
is hardly surprising that s 20 does not in its terms require that the
historical record be altered so that there can be no
reference to the
plaintiff’s deeds. That would be wholly contrary to the expressed
purpose of the TRC Act which was amongst other
things ‘to establish
the truth in relation to past events as well as the motives for and
circumstances in which gross violations
of human rights have
occurred, and to make the findings known in order to prevent a
repetition of such acts in future’.
26
The interim Constitution that sanctioned the entire process of the
Truth and Reconciliation Commission, including the amnesty process,
protected the right of freedom of expression as the Constitution now
does.
27
It is in my opinion wholly contrary to that constitutional guarantee
to require that the facts of our historic past should be disregarded
and, if stated, treated as false, which is what the respondent wishes
this court to do.
[80] I do not differ from my
colleague in his broad statement of the purpose of the TRC Act or the
importance of the role of the Truth
and Reconciliation Commission,
including the amnesty process, in furthering the purpose of
reconciliation in this country. Where
we differ is that in
establishing the amnesty process the TRC Act quite clearly spells out
the consequences of the grant of amnesty
and those stated
consequences do not involve a blotting out of the historical record
nor do they impose a prohibition on saying that
persons to whom
amnesty was granted may no longer be described as having committed
the offences for which they obtained amnesty.
[81] In
my view the reference to the plaintiff as a murderer is not false
because as a matter of historical record that is a correct
statement
and it is a statement the truth of which the plaintiff had to
acknowledge when he applied for amnesty. It is unnecessary
in order
for the statement to be true that the person about whom it is made
has been convicted of that offence, although the respondent
had been
so convicted, or that any conviction is still to be held against him
in the public record. The Biblical descriptions of
Cain, Moses and
King David as murderers
28
have never so far as I am aware been challenged as false because they
had not been convicted in a court of law of that crime. Accordingly
the primary foundation for the defence of fair comment, namely that
the comment is upon facts that are themselves truly stated is
established. I should add in this regard that, as appears from the
various articles and editorials, the facts giving rise to the
description of the plaintiff as a murderer are briefly mentioned and
their accuracy is not challenged. Equally the fact that he was
granted amnesty was also stated at the outset and is in any event
well-known.
[82] I
conclude therefore that
the
fact of the murders and other criminal acts perpetrated by the
plaintiff having taken place is not obliterated in the sense that
mention thereof may not be made if an occasion arises. The TRC Act
does not have the effect of obliterating these facts. The impact
of
the relevant sections referred to above is limited to protecting
convicted persons (such as the plaintiff) from civil or criminal
liability as a consequence of an act committed with a political
motive (ss (7)(b)). Secondly the effect is that the sentences imposed
on the plaintiff lapsed (ss (8) (b))). Thirdly the offence is deemed
not to have taken place in the sense that the ‘any entry or
record
of the conviction shall be deemed to be expunged from all official or
documents records . . . ’. The TRC Act does not proscribe
all
reference to the criminal conduct that formed the subject matter of
an amnesty application, in the sense that if one does so
he or she
would be liable for defamation. That construction will have a
chilling effect on freedom of expression guaranteed under
the
Constitution and is not required by the wording of s 20 or the fact
that what is sought and granted is amnesty. Accordingly requirement
(iii) of the defence of fair comment is satisfied insofar as the
statement that the plaintiff is a murderer is concerned. For the
reasons given by my colleague in para 18 of his judgment I agree that
there is no falsehood in relation to the plaintiff’s activities
in
Mozambique nor any foundation for a separate claim for defamation
based on these statements.
[83] The fourth and final
requirement is that the comment must relate to a matter of public
interest. In this particular case the
comment could relate to a
matter of public interest only if it was germane to the issues in
those proceedings. This is because there
is no discernible value in
protecting litigants who make irrelevant comments to injure the
reputation of others. In this case the
comment was relevant. The
reference in the articles to the plaintiff’s conviction for murder
was, in the context of the view, contended
for by the authors of the
articles, relevant to the plaintiff’s alleged unsuitability as
police chief and it was a matter of public
interest. The reference to
the bombing incident was not a question of raking up the ashes of the
past but, as the defendants saw
it, bore relevance to the law
enforcement post applied for by the plaintiff. There can be no
question that this was relevant to that
appointment.
[84] The position applied for is
of great importance and aroused public interest and the plaintiff
himself was a public figure. At
the time of the publication of the
offending articles he was the Director of Foreign Affairs. It is not
disputed that the question
of the plaintiff’s appointment to the
position was a matter in which the public was legitimately
interested. Accordingly the (iv)
fourth requirement of fair comment
was met.
[85] In my view the defence of
fair comment raised by the defendants is well taken and should have
been upheld by the court a quo.
I would accordingly uphold the appeal
and dismiss the plaintiff’s claims with appropriate orders for
costs.
____________________
KK MTHIYANE
JUDGE OF APPEAL
PONNAN
JA
:
[86] I have had the benefit of
reading the judgments of my colleagues Streicher and Mthiyane. I
concur in the order proposed by Streicher
JA and agree in general
with the comprehensive reasons given by him for the conclusions to
which he has come. That Mthiyane JA arrives
at a different
destination is attributable, as he himself acknowledges, to the view
that he takes on the reach of the amnesty granted
to the respondent
under the provisions of the TRC Act. I feel constrained to disagree
with my learned colleague and to explain separately
the line that I
take in attempting to resolve this complex and troublesome issue.
[87] The task of building a new
democratic social order, given the deep conflict that dominated our
social landscape, was a difficult
one. It ultimately became manifest
to the minority who controlled the levers of state power that the
only way out of that quagmire
was to negotiate a different (hopefully
brighter) future with those who had sought to resist that domination.
Those negotiations
culminated in an interim Constitution that ushered
in our new democratic political order. There was an appreciation even
at that
stage that much of what had occurred during that protracted
period of internal political dissension could never ever be fully
reversed
and that nation building required a selfless and generous
commitment to reconciliation and national unity. The genesis of
amnesty
is founded in that pragmatic appreciation. But for it the
negotiated settlement and our new social contract may well have been
stillborn.
Amnesty was born out of the recognition that
notwithstanding the lingering pain and personal reticence of some to
it, that painful
chapter of our history had to be brought to a close.
[88] It
is against that historical backdrop that the matter must be viewed.
For, it informed the epilogue to the interim Constitution,
pursuant
to which the TRC Act came to be enacted. Mahomed DP thought it more
reasonable to infer that what the epilogue contemplated
was
legislation that would be wide enough to allow for an amnesty that
would protect a wrongdoer who told the truth from both the
criminal
and civil consequences of his or her admissions (
AZAPO
29
para36). But for the
promise of amnesty the ‘historic bridge’ contemplated in the
epilogue might not have seen the light of day
and the prospect of
unending revenge and retaliation may well have continued to bedevil
us. The grant of amnesty was dependent on
the perpetrator of the
misdeed making full disclosure of all relevant facts. Were it not so,
it could hardly have engendered the
catharsis that Didcott J talks of
(
AZAPO
para
59].
[89] What
is clear from s 20(7), read with s 20(8), (9) and (10) of the TRC
Act, is that, once a person has been granted amnesty in
respect of an
act, omission or offence, the offender can no longer be held
criminally liable for such offence and no prosecution
can be
maintained against him or her (
AZAPO
para 7). Tellingly, what the Act envisaged was the grant of amnesty
not just in respect of ‘offences’ but also ‘acts’ and
‘omissions’. Subsection 10 provides in clear and unambiguous
terms that the conviction shall for all purposes be deemed not to
have taken place. That such is the case was recognized by Langa CJ
who stated: ‘In return, the weight of the offence is lifted
from
the perpetrator’s shoulders with a guarantee of immunity from
prosecution, a clean criminal record, and the assurance that
never
again can the conviction be counted against him or her’ (
Du
Toit
30
para 28). Consistent
with that theme, subsection 8 provides for the discontinuation of
criminal proceedings that have not yet been
finalized, the voiding of
criminal proceedings, the lapsing of sentences and the release
forthwith of persons in custody. Accordingly,
from the date on which
amnesty is granted, the direct legal consequences of the criminal
conduct for which amnesty was granted will
no longer obtain (
Du
Toit
para 43).
[90] Whilst
the TRC Act seeks to advance reconciliation and promote national
unity, it cannot undo, obliterate or blot out what has
happened in
the past. There was thus a conscious decision on the part of the
legislature, acting in accordance with the mandate given
to it by our
new social contract, that people not be trapped in the painful past
but that they ‘be given a pardoned freedom to
go forth and
contribute to society’ (
Du
Toit
para 56). That
entails, as it must, a conscious acknowledgement that not only should
the perpetrators not be considered to have committed
the offences in
question but moreover that those offences should not count against
them. Were that not to be so, the grant of amnesty
would be rendered
meaningless and illusory. There would thus be little incentive for a
perpetrator to seek amnesty.
[91] Amnesty
was not to be had simply for the asking. The Truth and Reconciliation
Commission established in terms of the Act was
required to facilitate
the granting of amnesty to persons who made ‘full disclosure of all
the relevant facts relating to acts
associated with a political
objective’ (s 3(1)(b)). The main objective of the Commission as set
out in s 3 was to promote
national unity and reconciliation ‘in
a spirit of understanding that transcends the conflicts and divisions
of the past’. The
Act enjoined the Commission to establish as
complete a picture as possible of ‘the causes, nature and extent of
the gross violations
of human rights’ committed during the relevant
period. Amnesty was thus but one, yet significant, facet of the
entire TRC process.
The whole TRC process was in no small measure
dependent for its success on perpetrators, particularly of gross
human rights violations,
making full and frank disclosure. I can
hardly imagine that those perpetrators would have embraced the
process if it were to have
been suggested to them that
notwithstanding the grant of amnesty, they could never ever rid
themselves of the stigma and moral opprobrium
of their deeds.
Moreover, such an approach would run counter to the ‘spirit of
understanding’ postulated by the Act and far from
transcending
would actually have exacerbated the conflicts of the past. After all
as Langa CJ put it (
Du
Toit
para 52): ‘…
section 20 (7) to (10) pays due regard to the interplay of benefit
and disadvantage so important to the process of
national
reconciliation’.
[92] The historical purpose of
the legislation and the social need it was designed to address, as
also the scheme established by the
provisions of s 20 (7) to (9)
as already discussed, all point ineluctably to the conclusion that it
was impermissible to continue
to brand the respondent a murderer and
criminal in respect of those acts and offences for which amnesty had
been granted to him.
Any other approach would be to treat the
respondent as if amnesty had not been sought and obtained by him.
That could hardly have
been the intention of the legislature, which
plainly envisaged a change in the status of the person who had
successfully applied
for amnesty.
[93] The
grant of amnesty to the respondent heralded the promise of his
reintegration into South African society. To continue branding
him a
criminal and murderer runs counter to that promise. It strikes me as
inconsistent that he be obliged to continue wearing the
mantle of a
criminal or murderer notwithstanding the fact that his conviction is
‘deemed not to have taken place’ and any record
of it is ‘deemed
to be expunged from all official documents or records’. After all,
expunging the conviction means that the
person no longer has a
previous conviction (
Du
Toit
para 45). That is
not to suggest that the fact that the respondent planted a bomb that
killed several people for which he was convicted
is likewise deemed
not to have occurred. On the contrary that remains as deeply embedded
in this nation’s psyche as it does in
our national records. The
granting of amnesty to the respondent does not and cannot obliterate
or erase the fact of those occurrences.
That would be at odds with
the notion of establishing as complete a picture as possible. What
s 20(7) does do is it changes
the legal consequences of the acts
for which amnesty was granted, for the future, from the date on which
amnesty was granted (
Du
Toit
para 40). It
must follow that to have ignored the grant of amnesty as the
appellants had done in describing the respondent was plainly
impermissible. Streicher JA can hardly be faulted therefore in
concluding that
the
statement in the editorials and articles that the respondent is a
murderer (made with full knowledge of the grant of amnesty and
the
respondent’s changed status it must be added) is therefore false
.
[94] In my view our template for
transition - an imperfect one some have suggested – clearly
contemplated two parallel yet intertwined
processes. Neither, I
daresay, conceptually incompatible with the other. First, disclosure
with as full a recordal as possible by
the Commission of the deeds of
perpetrators and, second, amnesty. The second was clearly designed to
go hand in hand with the first,
and as was intended, altered markedly
the standing of the perpetrator. That it did without a re-writing of
our history. The first
ensured as much. Thus when the Act came to be
passed, sections 20(7) to (10) expressly encapsulated the various
formal and procedural
consequences of amnesty designed to achieve
that end.
[95] I
have favoured an interpretation that not only accords with the scheme
of s 20 but also best achieves the goal of reconciliation
and
national unity (
Du Toit
para 50). The primary
aim of the Act as the Constitutional Court has pointed out is to ‘use
the closure acquired as a stepping stone
to reconciliation for the
future’ (
Du Toit
para
55). Amnesty was an important tool in that process, for without it,
the closure sought could not have been achieved. Nor, without
it,
could the much desired and anticipated consensus between the
political foes during the negotiation process have materialized.
To
thus render the effect of amnesty nugatory would be the very
antithesis of all that our negotiated settlement has come to
symbolize.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES
:
For appellant: S Symon SC
S Stein
Instructed by:
Willem de Klerk Attorneys,
Greenside
Honey Attorneys, Bloemfontein
For respondent: P W Makhambeni
Instructed by:
Mashiane Moodley Monama Inc,
Sandton
Lovius Bloch Attorneys,
Bloemfontein
1
It is also alleged that the respondent made common cause with gun
dealers in Mozambique without classifying the gun dealers as
criminal gun dealers as is done in the next paragraph but that would
not have been defamatory of the respondent.
2
See Neethling, Potgieter and Visser
Law of Delict
5 ed p 321.
3
Hardaker v Phillips
2005 (4) SA 515
(SCA) para 14.
4
National Media Ltd and others v Bogoshi
1998 (4) SA 1196
(SCA) at 1204D-E.
5
Marais v Richard and ano
ther
1981 (1) SA 1157
(A) at 1167E-G.
6
The Committee referred to is the Committee on Amnesty.
7
Du Toit v Minister for Safety and Security of the Republic of
South Africa and another
[2009] ZACC 22;
2009 (6) SA 128
(CC).
8
At 701G-I.
9
Marais v Richard and another
1981 (1) SA 1157
(A) at 1167F-H.
10
At 1168G-H.
11
See in this regard
Kemsley v Foot and others
[1952] 1 All ER
501
(HL) at 504H-505H referred to with approval in
Johnson v
Beckett and another
[1991] ZASCA 175
;
1992 (1) SA 762
(A) at 780F-G and 782G.
12
At 352E-G.
13
Reference is also made to his arrest and detention in Mozambique,
which I deal with separately but this is in passing and is not
the
major thrust of the original editorial.
14
1956 (4) SA 310
(W) at 318D-G.
15
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at para 21.
16
Para 24.
17
Para 25.
18
2005 (4) SA 515
(SCA) at para 26.
19
1981 (1) SA 1157
(A) at 1167F.
20
2004 (6) SA 329
(SCA) at 356A-E.
21
Para 32.
22
At 118.
23
2009 (6) SA 128
(CC).
24
Para 31.
25
Para 32.
26
The purpose is stated in both the long title to the TRC Act and its
preamble.
27
Section 16(1) of the Constitution. In particular s 16(1)(b) protects
the right to impart information.
28
Genesis 4 vs 8; Exodus 2 vs 14 and 2 Samuel 12 vs 9.
29
Cited in para 29 of Streicher JA’s judgment.
30
Cited in footnote 7 of Streicher JA’s judgment.