The Citizen 1978 (Pty) Ltd and Others v McBride (CCT 23/10) [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) (8 April 2011)

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The Citizen 1978 (Pty) Ltd and Others v McBride (CCT 23/10) [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) (8 April 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 23/10
[2011] ZACC 11
THE CITIZEN 1978 (PTY) LTD
….............................................................
First
Applicant
KEVIN KEOGH
…...................................................................................
Second
Applicant
MARTIN WILLIAMS
…............................................................................
Third
Applicant
ANDREW KENNY
…...............................................................................
Fourth
Applicant
and
ROBERT JOHN MCBRIDE
….........................................................................
Respondent
together with
LARA JOHNSTONE
….......................................................................
First
Amicus Curiae
FREEDOM OF EXPRESSION INSTITUTE
…..............................
Second Amicus Curiae
SOUTH AFRICAN NATIONAL EDITORS’ FORUM
…................
Third Amicus Curiae
JOYCE SIBANYONI MBIZANA
…................................................
Fourth
Amicus Curiae
MBASA MXENGE
….........................................................................
Fifth
Amicus Curiae
Heard on : 30 September 2010
Decided on : 8 April 2011
JUDGMENT
CAMERON J:
Introduction
This
case turns on the effect of amnesty granted under the Promotion of
National Unity and Reconciliation Act
1
(Reconciliation Act). The statute provides that once a person
convicted of an offence with a political objective has been granted

amnesty, any entry or record of the conviction shall be deemed to be
expunged from all official documents 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”.
2
What effect does the fact that a conviction is deemed “for all
purposes” not to have taken place have on the law
of
defamation? The main question before this Court is whether a person
convicted of murder, but granted amnesty for the offence,
can later
be called a “criminal” and a “murderer” in
comment opposing his appointment to a public position.
The case thus
cuts deeply into charged issues about the meaning of the legislative
and social compact that ended apartheid, and
the extent to which our
Constitution guarantees freedom of expression, including freedom of
the press and other media.
3
In
the latter half of 2003, the respondent, Mr Robert John McBride, was
a candidate for a senior police post – that of head
of the
metro police in one of South Africa’s largest municipalities,
Ekurhuleni. Seventeen years before, on 14 June 1986,
as an operative
of the African National Congress (ANC), he carried out a car bomb
attack outside the Magoo’s Bar and Why
Not Restaurant on the
Durban beachfront. The explosion killed three young women and
injured 69 other people. For this Mr McBride
was found guilty of
multiple murders and was sentenced to death.
4
But in 1991 he was reprieved, and in 1992 he was released. In 1997
he applied for amnesty under the Reconciliation Act for the
murders
and associated crimes. This was granted on 19 April 2001.
The
Citizen newspaper, the first applicant (Citizen), is widely
distributed and read throughout South Africa. It was vehemently

opposed to Mr McBride’s appointment. In September and October
2003 it published a number of articles and editorials critical
of
his candidacy. The then-editor was Mr Kevin Keogh (second
applicant). The articles were written by two journalists, Mr Martin

Williams (third applicant), and Mr Andrew Kenny (fourth applicant)
(together, journalists). They contended that Mr McBride was

unsuitable for appointment because he was a criminal and a murderer,
and because in 1998 he had been arrested and detained in
Mozambique
on suspicion of gun-running.
Soon after the last article appeared, Mr McBride instituted action
against the Citizen and the journalists. He claimed damages

totalling R3.6 million for defamation and for impairment of
dignity.
5
He also asked that the defendants be ordered to publish an
unconditional and full apology to him on the front page. The South

Gauteng High Court, Johannesburg (Maluleke J) upheld his monetary
claims and awarded him damages of R200 000. On appeal, the
Supreme
Court of Appeal reduced this to R150 000, because it found that Mr
McBride had not established his case of defamation
on the
gun-running allegations. But on the substance of the other
allegations, the majority of that Court upheld the findings
of the
trial court.
6
The
Citizen and the journalists now apply for leave to appeal against
the judgment of the Supreme Court of Appeal. Mr McBride
seeks leave
to cross-appeal against the reduction of his damages. On appeal to
this Court, Ms Lara Johnstone, the Freedom of
Expression Institute
(FXI), the South African National Editors’ Forum (SANEF) and
Ms Joyce Mbizana and Mr Mbasa Mxenge
were admitted as amici, and the
Minister for Justice and Constitutional Development was invited to
and did submit argument.
7
Before setting out the litigation history, I first deal with
jurisdiction and then set out the statements complained of, and
how
the parties pleaded.
Jurisdiction
There
is an application for leave to appeal, as well as to cross-appeal.
For this Court to entertain either, there must be a constitutional

issue,
8
and it must be in the interests of justice to hear the matter.
9
As indicated, the case concerns the impact of the Reconciliation Act
on the right to freedom of expression. It concerns also
Mr McBride’s
right to dignity and reputation.
10
Important constitutional issues are clearly implicated. The central
issue provoked division in the Supreme Court of Appeal, which

decided it by a majority of four to one. The matter is thus plainly
arguable, with prospects of success. Leave to appeal should

therefore be granted.
The Citizen articles and the defamatory statements
The
first article in a series focusing on Mr McBride’s appointment
as metro police chief appeared on the front page of the
Citizen on
10 September 2003. It was titled “McBride tipped to head Metro
cops”. It referred to Mr McBride’s
rumoured candidacy
for the position of police chief in Ekurhuleni Municipality, and
gave an account of his role in the Magoo’s
Bar and Why Not
Restaurant attack, his amnesty application, and his arrest on
gun-running charges in Mozambique:
“
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.”
This
was followed the next day, 11 September 2003, by an article titled
“No comment on McBride – Tipped as top cop
for E Rand
Metropole”. Mr McBride, it stated, “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 [TRC] also granted
him amnesty.”
Like the first article, its contents were largely factual. To the
previous day’s reporting it merely
added that neither the
municipality nor the Department of Foreign Affairs, where Mr McBride
was then employed, would comment
on his rumoured candidacy.
Deeper
in the same issue of the newspaper appeared the first of the
articles on which Mr McBride sued. This was an editorial headed

“Here comes McBride” (first editorial). It read:
“
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 recommended 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.”
The
next article appeared a week later, on 18 September. It was titled
“Beware ambush broadcasters operating under false
pretences”
(first Williams article). The author explained that he had been
invited to join a radio debate on amnesty and
proceeded (the
portions Mr McBride claimed defamed him are in italics):
“
If
anyone wants my opinion about Robert McBride and forgiveness, here it
is.
Forgiveness is intensely
personal. Each individual makes their own decision. If you don’t
forgive, you harm yourself. That’s
why to forgive is divine.
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.
Boesak wants a pardon for
something he says he didn’t do. That defies logic.
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.
”
After
a letter from Mr McBride’s attorneys arrived, demanding an
apology and claiming damages, the newspaper responded on
22
September 2003 with a main front page lead story. It was titled
“Bomber McBride to sue The Citizen”. The article
quoted
the letter of demand, and repeated the nub of the first editorial.
It added:
“
McBride
was found guilty of the 1986 Durban bombings in which three civilian
women were killed.
. . . .
In 1998 he was detained in a
Mozambique jail on suspicions 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.”
Nearly
four weeks later, on 17 October 2003, then-President Thabo Mbeki
published a letter on the
ANC Today
website. It was titled
“We will not abandon national reconciliation”. The
letter reflected on the amnesty process
and commented that:
“
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.”
This
triggered a flurry of responses in the Citizen. An editorial on 20
October 2003, titled “Thabo Mbeki’s straw
man”
(second editorial), contained two passages Mr McBride claimed were
defamatory. These were (allegedly defamatory portions
in italics):
“
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.
Yet Thabo Mbeki devotes his
weekly Internet newsletter to that dubious cause and to denigrating
The Citizen.
. . . .
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.
”
The
next article, “McBride, ANC Hero” by Andrew Kenny (Kenny
article) was published the next day, on 21 October (portions
Mr
McBride claimed were defamatory of him are in italics):
“
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.
. . . .
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 to improve the
provision of pensions to the poor.
He should most certainly not
be made a policeman.
”
The
Kenny article was followed the next day, on 22 October, by the
second of the Williams articles. It was titled “Mbeki
no
conciliator” (second Williams article). Mr McBride alleged
that it contained the following defamatory and injurious
statements:
“
Mbeki’s
support for bomber McBride is consistent with his long-held view that
any liberation force action was justified.
This unfeeling attitude does not
help genuine reconciliation. For example, in his latest Internet
newsletter he airbrushes over
the horrible reality of McBride’s
deed in murdering civilians”.
At
the end of October 2003, it became known that Mr McBride had secured
the job of police chief of Ekurhuleni. The Citizen responded
with an
editorial on 30 October 2003, “McBride cops job” (third
editorial). This repeated the newspaper’s views
on his
candidacy in a way Mr McBride claimed injured his reputation and
dignity (portions alleged to be defamatory in italics):
“
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.”
High
Court proceedings
Mr
McBride formulated his claim on the first editorial of 11 September.
His pleading set out the grounds on which he claimed that
this
publication was defamatory of and injurious to him. In the case of
each of the other articles, his claim referred back to
this primary
exposition. It averred that the article was intended to mean, and
was understood by readers to mean (in slightly
paraphrased form)
that Mr McBride:
1. is not suited for the
position of Head of the Ekurhuleni Metro Police Force;
2. is a criminal;
3. is a murderer;
4. remains a criminal and a
murderer despite his:
a. having been a soldier and a
disciplined member of Umkhonto we Sizwe (MK), the former armed wing
of the ANC;
b. 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;
c. having been granted amnesty
in terms of section 20 of the Reconciliation Act for, inter alia, his
participation in the attack
on the Magoo’s Bar;
d. conviction for participation
in, inter alia, the attack on the Magoo’s Bar being subject to
the provisions of section 20(10)
of the Reconciliation Act; and
e. having been absolved from all
liability for, inter alia, his participation in the attack on the
Magoo’s Bar.
5. has made common cause, or
attempted to make common cause, with gun dealers and criminals in
Mozambique;
6. has been involved in illegal
activities with gun dealers and criminals in Mozambique; and
7. is morally corrupt.
The
Citizen and the journalists filed a joint plea resisting the claim.
They denied that the statements published were defamatory,
but that
defence was later abandoned. Rightly. It is incontestable that the
statements in the articles diminished Mr McBride
in the estimation
of reasonable readers. The alternative defence pleaded was “fair
comment”. The newspaper and the
journalists alleged that the
articles contained comments concerning matters of public interest,
namely Mr McBride’s suitability
for the post of police chief.
They further allege that the comments were fair in the circumstances
and that the facts on which
the comments were based were true.
In
response, Mr McBride asked the defendants to identify each and every
fact on which the comments were based, that they alleged
to be true.
In reply they listed these facts: (a) Mr McBride “is a
murderer as a result of him planting a bomb in Magoo’s
Bar
during 1986, when several people were killed”; and (b) Mr
McBride “was detained in Mozambique on alleged arms

trafficking between Mozambique and South Africa.”
At
the trial, Mr Brian Curren, former national director of Lawyers for
Human Rights, who had acted on Mr McBride’s behalf
in the
early 1990s, testified as to his experience of Mr McBride’s
contrition and why he applied for amnesty. Mr McBride
himself also
testified. The defendants called only two witnesses, Mr Kenny and Mr
Williams.
The
trial judge found that the articles were defamatory and that the
defence of fair comment could not be sustained. He considered
the
publications separately, article-by-article and found that the facts
on which the comments were based were not true or accurately
stated,
and that the comments were not in the public interest. The judge
found that the effect of amnesty cannot “be willy-nilly

limited and circumscribed” and that section 20(10) of the
Reconciliation Act should be given its ordinary, wide meaning
rather
than being confined to absolution from criminal and civil liability
alone.
11
Thus read, the provision expunged Mr McBride’s conviction for
murder “for all purposes”, including the law
of
defamation. And the discussion as to Mr McBride’s candidacy
for police chief was no longer in the public interest as
his past
conviction was not relevant, particularly in the light of his
successful amnesty application.
Thus,
the High Court held, the statement that Mr McBride is a murderer was
not true, accurately stated or in the public interest.
On Mr
McBride’s arrest for gun-running, the Court held that the
reference to McBride’s “dubious flirtation
with alleged
gun dealers in Mozambique” was not accurately stated as it
failed to refer to the fact that his charges had
been quashed.
The High Court held that each of the articles sued upon repeated the
injurious defamation. However, the Court singled out the
Kenny
article (“McBride, ANC Hero”) for particular scrutiny,
finding that two factual inaccuracies vitiated its claim
to be fair
comment: the article was wrong to claim that apartheid was “in
retreat” in 1986, and it ignored the fact
that Mr McBride
received amnesty for the Magoo’s Bar and Why Not Restaurant
attack.
The
High Court found that ordering an apology would serve no useful
purpose. So the Court ordered the applicants to pay R200 000
in
damages for defamation and for the infringement of Mr McBride’s
dignity: R100 000 for the editorials, front page stories
and the
Williams articles, and R100 000 for the Kenny article. The High
Court granted leave to appeal to the Supreme Court of
Appeal.
Supreme
Court of Appeal
The
Supreme Court of Appeal overturned the High Court’s finding
that the statement about Mr McBride’s “dubious

flirtation with gun dealers in Mozambique” was defamatory. The
Court rejected the High Court’s finding that this
meant that
he was actually involved with gun dealers. It found instead that the
assertion was only that Mr McBride’s flirtation
with gun
dealers was suspicious and may have been criminal (but that he was a
criminal anyhow because of the murders). The Court
found that, while
asserting “a dubious flirtation with alleged gun dealers”
was itself defamatory, the defamatory
meaning on which Mr McBride
based his claim was not mere dubious flirtation, but actual
gun-running (perhaps because he realised
that the flirtation
defamation “could be justified on the basis of truth and
public benefit”).
12
That leg of his claim could thus not succeed.
The
Court held that the statement that Mr McBride was a criminal and
morally corrupt derived from, and added nothing to, the claim
that
he was a murderer.
13
The pivotal question was therefore whether the defence of fair
comment should have succeeded in respect of “murderer”.
The
Court found that the crucial question was whether amnesty once
granted rendered the statement that Mr McBride is a murderer
false.
14
Streicher JA, for the majority, found that the intention of amnesty
was “to advance reconciliation and reconstruction of
our
society on the basis that there was no need for retribution or
victimisation.”
15
The purpose was that those who received amnesty “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.”
16
The majority concluded that the statement that Mr McBride is a
murderer “is therefore false.”
17
Accordingly the Citizen’s defence of fair comment fell to be
dismissed “on the ground that the facts on which the
comment
was based are not true”.
18
The
Court however added:
“
That
is not to say that [Mr McBride’s] actions and the consequences
of his actions are to be considered not to have taken
place. It is a
fact that [Mr McBride] 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 [Mr McBride] could not obliterate those facts
or erase them from the historical
record”.
19
In
the Supreme Court of Appeal the Citizen also urged that calling Mr
McBride a “murderer” was itself a comment on
the effect
of amnesty. This defence the Court rejected because the Citizen did
not plead it. Its defence was that to call Mr
McBride a “murderer”
was a fact supporting a comment. In its context it was anyhow not
possible to construe the statement
as a comment. This was because
not all the Citizen articles mentioned amnesty, and, absent amnesty,
“it is a well known
fact that [Mr McBride] is a murderer and
it is unlikely that anybody who chose to ignore amnesty would be
expressing an opinion
that he is a murderer.”
20
In
determining whether “murderer” was fact or comment, the
Court noted that several of the articles used the term
without
referring to Mr McBride’s amnesty. The Court found that these
articles were to be assessed as if read by the reasonable
reader in
isolation from others that did mention amnesty.
21
In a
separate concurrence, Ponnan JA emphasised the purpose of amnesty.
Reconciliation entailed a conscious acknowledgment that
perpetrators
granted amnesty should not only be considered not to have committed
the offences in question, but “that those
offences should not
count against them.”
22
The success of the process required that offenders should be able to
“rid themselves of the stigma and moral opprobrium
of their
deeds.”
23
The fact that Mr McBride planted a bomb that killed several people,
for which he was convicted, is not deemed not to have occurred:
on
the contrary, this remains “as deeply embedded in this
nation’s psyche as it does in our national records.”
The
granting of amnesty “does not and cannot obliterate or erase
the fact of those occurrences.” What the provision
did was to
change for the future the legal consequences of the acts for which
amnesty was granted. Hence the statement that Mr
McBride was a
“murderer” was false.
24
Mthiyane
JA dissented. Noting Streicher JA’s observation that, absent
amnesty, “it is a well-known fact that [Mr McBride]
is a
murderer”,
25
he found that the Reconciliation Act did not render this statement
false. He had difficulty in principle with the notion that
one
convicted of murder may not be described as a murderer or a criminal
because he has been granted amnesty.
26
Section 20(10) did not expunge the fact of a crime from the
historical record, but merely protected the perpetrator from
criminal
and civil liability and required the conviction to be
expunged from the state’s records. Amnesty thus protected a
perpetrator
from state-sanctioned penalties.
The
judgment of Mthiyane JA reflects three justifications for this
approach. First, the language of section 20(10) did not support
the
expansive interpretation the majority endorsed, as it largely
relates to official sanctions.
27
It is primarily a deeming provision expunging all references to the
conviction in state records – obviating the need to
“trawl”
through records to delete the conviction.
28
Second, the majority’s expansive interpretation unwarrantably
curtailed freedom of expression.
29
And, third, the aim of the truth and reconciliation process was not
to suppress expression but to promote an understanding of
the
truth.
30
Proceedings
in this Court
The
Citizen abandoned its argument that calling Mr McBride a “murderer”
was protected as comment. It reverted to its
original pleading that
this was a fact forming the basis for protected comment. The
principal issue before us was therefore whether
it could properly be
stated as a fact that Mr McBride was a “murderer”. The
Citizen submits that the ordinary reader
of the Citizen would have
understood the statement to mean that Mr McBride is not fit for
appointment as police chief because
he is a murderer despite
receiving amnesty. While Mr McBride sued only on the articles that
did not mention amnesty, the ordinary
reader would have known that
he had received amnesty and understood this to underlie the critical
comments.
The
Citizen submits that the requisites of fair comment are fulfilled,
bar only the question whether the facts on which the comment
was
based are true. It also submits that the decision of the Supreme
Court of Appeal entails that crimes for which amnesty has
been
granted are for all purposes deemed not to have been committed so
that it will always be false to say that they were committed,

whatever the purpose. It would follow that many high profile
killings for which amnesty was granted could not be called
“murders”,
nor their perpetrators “murderers”.
The Citizen cites as an example a speech delivered extra-curially by
Deputy Chief
Justice DE Moseneke, in which he called the killers of
Griffiths Mxenge, a Durban lawyer who represented many ANC clients,
“murderers”.
31
The
Citizen urges that this interpretation runs counter to the language
of the Reconciliation Act. It emphasises the historical
purpose of
the Act. In finding a balance between amnesty and justice, it
focussed on truth-telling. The process sought to reveal
and preserve
the truth about the past so that it might never be repeated.
Mr
McBride submits that there is no basis for assuming that the
ordinary reader of the Citizen reads every article and every
editorial in every edition of the paper. The articles should
therefore be treated separately, as if read one at a time. He
contends
that the defence of fair comment cannot justify the
publication of defamatory allegations of fact. These include the
assertions
that Mr McBride is a criminal; that he is a murderer;
that he consorted with alleged gun dealers; and that he was detained
in
Mozambique on suspicion of gun-running. Because the Citizen and
the journalists did not plead the defence of truth in the public

interest, it cannot now help them.
In
his written argument, Mr McBride contended that
the
statement that he is a murderer is not true as a result of section
20(10) of the Reconciliation Act. Counsel contended that
a person
may be considered a murderer only after a court of law has found him
to be guilty of murder. And because he was granted
amnesty, Mr
McBride no longer has any convictions for murder and can thus not be
called a murderer
. The wide terms of section 20(10) make
clear that the effect of the granting of amnesty is
all-encompassing. It is therefore
not permissible for the media to
label him a murderer: his conviction is deemed, for all purposes,
not to have taken place. One
of the principal objectives of the Act
was to facilitate as complete a picture as possible of the causes,
nature and extent of
gross human rights violations committed during
the conflicts of the past. Once the truth of the past has been
exposed, the intention
is to “close the book” on that
past. This allows perpetrators to start their lives anew without
being labelled forever.
In
argument, counsel for Mr McBride insisted that “murderer”
has a technical legal meaning only – that is, a
person
convicted in a court of law of an unlawful premeditated killing.
Since Mr McBride’s conviction has been expunged,
it is no
longer permissible to call him a “murderer”.
Mr
McBride contends that relevance is important when determining the
fairness of a comment. His operations at the Magoo’s
Bar and
Why Not Restaurant 17 years earlier were of no relevance to his
suitability for the police chief position in 2003. The
repeated
defamatory statements by the Citizen were, he submits, malicious.
Mr
McBride also seeks leave to cross-appeal against the Supreme Court
of Appeal’s finding that “dubious flirtation
with
alleged gun dealers” was not defamatory. He submits that
ordinary readers would have understood this to imply that
his
conduct in Mozambique was a crime, thus providing further proof that
he is a criminal. He submits that the distinction drawn
by the
Supreme Court of Appeal between asserting that his flirtation with
gun dealers may have been criminal, as against alleging
that he was
actually involved in illegal activities, is without substance.
Submissions
of the amici curiae
FXI
and SANEF urge that the judgment of the Supreme Court of Appeal
should be overturned. They submit that the Court failed to
take into
account the impact of its decision on freedom of expression. Its
interpretation ousted the expressive conduct of the
Citizen, despite
the fact that section 20(10) did not expressly envisage this. They
join the Citizen in urging that the discovery
of truth is one of the
primary values underlying freedom of expression. It would be
contrary to the purpose of the Reconciliation
Act to require the
suppression of truth and expression.
FXI and SANEF also take issue with the Supreme Court of Appeal’s
finding that the statement that Mr McBride is a murderer
would not
have been understood by reasonable readers as comment or opinion
because the facts underlying the opinion were not
disclosed in the
articles.
32
They contend that where facts are incorporated by reference or where
they are notorious, they need not be explicitly stated.
Furthermore,
where an article forms part of a series, the courts should consider
each article in the context of that series.
Ms
Joyce Mbizana is the sister of Justice Mbizana, one of four youths
killed by apartheid security police, who came to be known
as the
Mamelodi Four. Mr Mbasa Mxenge is the son of Griffiths and Victoria
Mxenge. They also urge that the Supreme Court of Appeal
judgment
should be reversed. They submitted that the ruling will have a
significant effect on their ability to speak out freely
about the
crimes committed against their family members, and about the
wrongdoers who received amnesty. Ms Mbizana and Mr Mxenge
contend
that freedom of expression is constitutive of dignity: to deny
persons in their position the right to speak the truth
without fear
of being sued for defamation strips them of their dignity. The
proper interpretation of the Reconciliation Act,
they contend, is
that the effect of amnesty is only on a conviction and not on the
historical facts. This interpretation is also
found in the dissent
of Mthiyane JA.
Further,
they contend that individuals have a “right to truth”,
which is recognised as an emerging right in customary
international
law. They argue that the constitutional protection of this right
(and the ability to engage with the truth) emerges
from the values
of human dignity, equality, the rule of law, free expression and
access to information.
Minister’s
submissions
The
Court issued directions granting the Minister for Justice and
Constitutional Development leave to file written argument on
the
history, objectives and processes leading to the enactment of the
Reconciliation Act, in so far as these were relevant to
the issues,
and the interpretation of section 20. The Minister’s written
argument recounted the legislative history of
the Reconciliation
Act, contrasting it with the legislation on indemnities from
prosecution and civil claims that preceded it.
They contained no
requirement of full disclosure and truth-telling. And their
procedures were largely opaque, entailing the exercise
of a
ministerial or presidential discretion. By contrast, the provisions
of the Reconciliation Act, specifically section 20(10),
“take
account of the history, the concerns of victims, perpetrators and
the general public in the quest for real reconciliation.”
In
argument, counsel for the Minister emphasised that the
Reconciliation Act could not be interpreted to mean that a
perpetrator
granted amnesty could be called a criminal “forever
and a day”. She also submitted that mere labelling could not

serve the purposes of the amnesty process.
The
construction of the Reconciliation Act
The
provisions of the Reconciliation Act that are pivotal to this appeal
are sub-sections 20(7)-(10):
“
(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.
(b) Where amnesty is granted to
any person in respect of any act, omission or offence, such amnesty
shall have no influence upon
the criminal liability of any other
person contingent upon the liability of the first-mentioned person.
(c) No person, organisation or
state shall be civilly or vicariously liable for an act, omission or
offence committed between 1
March 1960 and the cut-off date by a
person who is deceased, unless amnesty could not have been granted in
terms of this Act in
respect of such an 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)
33
become void or the sentence so imposed shall upon such publication
lapse and the person so in custody shall forthwith be released.
(9) If any person has been
granted amnesty in respect of any act or omission which formed the
ground of a civil judgment which was
delivered at any time before the
granting of the amnesty, the publication of the proclamation in terms
of subsection (6) shall
not affect the operation of the judgment in
so far as it applies to that person.
(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 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.”
(Footnote added.)
The Reconciliation Act has been the focus of two decisions of this
Court. In
Azanian Peoples Organisation (AZAPO) and Others v
President of the Republic of South Africa and Others
34
(
AZAPO
), the applicants challenged section 20(7) on the basis
that to grant amnesty to perpetrators of offences whom the state
owed
a duty to prosecute, and to leave their victims without
recourse to civil remedy, was constitutionally untenable.
35
This Court rejected the challenge. Despite its severe impact on
fundamental rights, both criminal and civil amnesty was warranted

and indeed constitutionally envisaged, since a fraught transition
from grievous injustice and conflict under apartheid to realising

the “objectives fundamental to the ethos of a new
constitutional order”
36
demanded it.
37
The
Court emphasised that amnesty was a means to an end. The mechanism
the statute created, the TRC, with its three committees
(human
rights violations, reparations and rehabilitation, and amnesty), was
necessary to uncover the truth about the injustices
that scarred our
country’s oppressive past. The statute addressed this by
encouraging “survivors and the dependants
of the tortured and
the wounded, the maimed and the dead to unburden their grief
publicly, to receive the collective recognition
of a new nation that
they were wronged, and, crucially, to help them to discover what did
in truth happen to their loved ones”:
38
“
That
truth, which the victims of repression seek so desperately to know
is, in the circumstances, much more likely to be forthcoming
if those
responsible for such monstrous misdeeds are encouraged to disclose
the whole truth with the incentive that they will not
receive the
punishment which they undoubtedly deserve if they do.”
39
Without
that incentive, the Court pointed out, “there is nothing to
encourage such persons to make the disclosures and to
reveal the
truth”.
40
In
Du
Toit v Minister for Safety and Security
41
(
Du Toit
) the question was whether section 20(10) entitled a
senior police officer who had received amnesty for murder to be
reinstated
to a post he lost by operation of a statutory provision.
The statute provided that a member of the police force convicted of

an offence and sentenced to imprisonment without the option of a
fine “shall be deemed to have been discharged from the
Service”.
42
Did the later grant of amnesty entitle him to be reinstated? This
Court held No. The provision could not be given “a purely

literal and decontextualised reading”.
43
Contextually read, it was “inconceivable” that section
20(10) could be intended to undo “the past to a limitless

degree”, for past factual events cannot be undone.
44
The granting of amnesty “does not obliterate all the direct
legal consequences of conduct in respect of which amnesty is

granted.”
45
There is good reason for the statute’s distinction between
criminal and civil liability; the consequences of a prior conviction

are “primarily limited to an entry in official documents or
records and the sentence that the person is serving.”
46
Undoing the conviction and sentence “principally affects these
records and the sentence to be served in the future”
47
– but it cannot affect time already served.
Du
Toit
noted that while the statute seeks to advance
reconciliation and national unity, it cannot undo what has happened
in the past.
Just as the statute cannot restore to the victims what
they lost, it does not restore the perpetrator in every respect to
his
or her position before the commission of the offence, since to
undo all the consequences of a conviction would be endless and
unduly burdensome.
48
Alive to this, section 20(7)-(10) does not undo the direct legal
consequences of the conviction and sentence “beyond the
public
consequences such as the removal of the record of conviction and
sentence from official documents and the voiding of sentences
still
to be served.”
49
Even in respect of public consequences, ordinary legal consequences
already complete by the time amnesty is granted are not undone:
“
In
this manner, section 20(7)-(10) pays due regard to the interplay of
benefit and disadvantage so important to the process of national

reconciliation.”
50
To
textual clues the Court added historical context. It was important
that perpetrators coming forward to the TRC “did not
receive
the lion’s share of benefits from the process.”
51
The statute was not enacted “in order to ameliorate hardship
for the perpetrators of human rights abuses and to provide
these
perpetrators with remedies.”
52
Mr Du Toit’s dismissal could therefore not be undone.
The
two decisions set up signposts to the main questions before us. Each
emphasises the instrumental role of amnesty – it
was not an
end in itself, but a means to the end of national transition and
reconciliation.
53
They establish that truth-telling, as a means to these ends –
and hence the offer of amnesty – lay at the base of
the moral
and operational structure of the statute and the TRC.
54
They further establish that amnesty has no necessary meaning or
intrinsic effect: its operation depends on history, context and

statutory wording.
55
And they emphasise that its implementation must reflect the delicacy
of the constitutionally required balance implicit in the

legislation.
56
On
section 20(10),
Du Toit
asserts that the practical meaning of
amnesty cannot be read down from the literal wording of the statute,
but must depend on
history and statutory setting. It explicitly
rejects a literal reading in favour of a limited construction,
57
in which the wording of section 20(10) reflects a balance between
disparate interests on the path to transition.
58
Mr
McBride’s argument urges a literal reading of section 20(10):
the grant of amnesty expunges his conviction of murder
“for
all purposes”. It is deemed not to have taken place. It is as
though he was never a criminal convicted of murder.
It is as though
the fact that he committed “murder” did not occur. In
the formulation of the Supreme Court of Appeal,
he is “no
longer considered to be a criminal in respect of the deeds committed
by him.”
59
To call him a murderer is thus false. And comment for his fitness
for public office can never invoke the fact of the murders.
Mr Du
Toit, too, relied on a literal interpretation of section 20(10). If
his conviction for murder had indeed been deemed “for
all
purposes” not to have taken place, he would have got his job
back. The operation of the statute that deemed his discharge
would
have been set at naught. But this Court rejected the literal
reading. Instead, it upheld the finality of Mr Du Toit’s

discharge.
Mr
McBride’s argument runs counter to the meaning and effect of
Du Toit
. The consequences are considerable. His argument
implies that the Reconciliation Act not only granted perpetrators
exemption
from the legal consequences of their convictions, but that
it mutes the voices of those seeking to discuss their deeds. Here,
the amici whose family members were killed make a plangent point.
Their main concern is not public debate about a perpetrator’s

fitness for office. They assert primarily a subjective and
expressive entitlement, one that springs from their dignity as
siblings
and children. They seek to vindicate their right to
describe with truth and accuracy the perpetrators of the gross
wrongs inflicted
on their loved ones. They claim the entitlement,
despite amnesty, to continue to call the unlawful intentional
killing of their
loved ones “murder”, and those who
perpetrated the killings “murderers”. The literal
reading urged by
Mr McBride would render these descriptions false,
and impose legally enforced inhibition on those expressing them.
That
cannot be correct. The statute’s aim was national
reconciliation, premised on full disclosure of the truth.
60
It is hardly conceivable that its provisions could muzzle truth and
render true statements about our history false. This Court
in
Du
Toit
found that amnesty was granted because “[t]ruth-telling
is central to the development of a collective memory”.
61
And the TRC saw its own role as central to the development of that
collective memory. In its Report,
62
its chairman, Archbishop DM Tutu, noted that the notion of letting
bygones be bygones was inimical to the ethos of the transition,

since “amnesia would have resulted in further victimisation of
victims by denying their awful experiences.”
63
Further, “the past refuses to lie down quietly” and “has
an uncanny habit of returning to haunt one.”
Hence:
“
However
painful the experience, the wounds of the past must not be allowed to
fester. They must be opened. They must be cleansed.
And balm must be
poured on them so they can heal. This is not to be obsessed with the
past. It is to take care that the past is
properly dealt with for the
sake of the future.”
64
I agree.
The
interpretation urged on us by Mr McBride would be antithetical to
the adequate compilation of that collective memory. It is
in
conflict with the statute’s context and historical setting,
and is at odds with one of the moral impulses of the reconciliation

process itself.
In
addition, the literal reading urged on us omits to afford weight to
the speech and expressive rights of those who, like the
family
members before this Court, wish to speak the truth about the
perpetrators who killed their relatives. The Bill of Rights
protects
their right to freedom of expression,
65
and values the dignity of their bereavement and the integrity of
their memory. A sound interpretation of section 20(10) must
afford
weight to these rights. The Constitution requires that when
interpreting the Reconciliation Act a court “must promote
the
spirit, purport and objects of the Bill of Rights.”
66
This injunction does not appear to have been given any consideration
in the interpretive path the Supreme Court of Appeal followed.
The
literal interpretation in addition overreaches the delicate
“interplay of benefit and disadvantage”
67
that underlies the provisions. Mr McBride received amnesty for the
murders he committed. His conviction was expunged from the
record
book. He in fact secured appointment as police chief of Ekurhuleni.
All entries relating to him in official documents
or records are
undone. As this Court observed in
Du Toit
, apart from the
sentence itself, these entries are the primary consequence of a
prior conviction.
68
Amnesty liberated Mr McBride from them, as well as from all the
statutory disabilities imposed on those with prior convictions.
As
Mthiyane JA found, the chief function of the deeming provision in
section 20(10) is to secure efficient expungement of all
official
documents and records, without requiring arduous physical deletion.
That is why the provision was enacted. Expungement
entitles the
grantee of amnesty to full civic status. All civil disabilities are
lifted.
69
He is entitled to stand for Parliament.
70
Should he ever be convicted of another crime, he will for sentencing
purposes be deemed to be a first offender.
Mr
McBride seeks much more. He wants the provision to confer on him
immunity from untrammelled discussion of the deeds that led
to his
conviction for murder, and from the moral opprobrium that some
continue to attach to those deeds. He wants the provision
to
safeguard him from the application of terminology that, but for the
grant of amnesty to him, would be factually true, namely
that he
committed the crime of murder.
71
That he did so in the course of an armed struggle against pernicious
injustice does not detract from the historical accuracy
of the
appellation. In claiming that the statute exempts him from it, he
overreaches the delicacy of the provision’s effect
and intent.
In
understanding the implications of Mr McBride’s argument, it is
significant that the Supreme Court of Appeal held that
the intention
of the Act was that perpetrators’ offences could no longer “be
held against them”,
72
and that Mr McBride could no longer be “branded a criminal”.
73
On this approach, the object of the statute was to enable
perpetrators to “rid themselves of the stigma and moral
opprobrium
of their deeds”,
74
so that “branding” became impermissible, with the result
that Mr McBride would no longer be “obliged to continue

wearing the mantle of a criminal or murderer”.
75
This
reading seems to attribute to the Reconciliation Act a purpose
elevated beyond the reach of the practical consequences the
statute
regulated.
76
The difficulties inherent in it appear from the fact that it would
release the perpetrator from stigma and moral burden, while,

nevertheless, as the Supreme Court of Appeal recognised, the
“actions and the consequences” are not “considered

not to have taken place”,
77
since amnesty “does not and cannot obliterate or erase the
fact of those occurrences.”
78
This
seems to me to entail an irrepressible dissonance. If amnesty cannot
erase consequences, how can it proscribe their description?
What is
more, this reading imputes to the mechanisms of the statute an
obligatory process of social reconstruction, in which
perpetrators
receive not only legal, but moral and social absolution for their
deeds. The Reconciliation Act’s central
objective was national
unity and reconciliation. But moral absolution lay beyond the legal
benefits the statute afforded perpetrators.
Expunging moral
opprobrium and condemnation lay beyond the lawgiver’s powers,
and the statute did not seek to confer it.
The
amnesty provision has a more modest and practical purport. This is
evident from the fact that only those who were convicted
received
amnesty. It has no application to those who obtained amnesty on full
disclosure of crimes of which they were never convicted.
On a
literal approach, those never convicted of murder, not being covered
by section 20(10), could still be called “murderers”,

while those convicted cannot. This, as counsel for the Citizen
justly contended, would be an intolerable anomaly. There is no

reason for the statute to be interpreted to confer a lopsided
advantage on those convicted over those never convicted.
Mr
McBride’s argument sought to circumvent this anomaly by
asserting that the term “murderer” applies only to
those
convicted of murder in a court of law. But this is to redefine
language. In ordinary language “murder” incontestably

means the wrongful, intentional killing of another. “Murderer”
has a corresponding sense. More technically, “murder”
is
the unlawful premeditated killing of another human being, and
“murderer” means one who kills another unlawfully
and
premeditatedly.
79
Neither in ordinary nor technical language does the term mean only a
killing found by a court of law to be murder, nor is the
use of the
terms limited to where a court of law convicts.
This
ordinary use of language accords with reading section 20(10) as
merely expunging official records, thereby restoring the
convict to
unblemished legal and civil status. Since amnesty was a means to the
end of disclosure and truth-telling, there was
if anything less
rationale for favouring those who had been convicted, since their
convictions rested on evidence that presumably
recorded the events
in issue. By contrast, it was those not convicted whom the lure of
amnesty beckoned most powerfully to truth-telling.
It would be
anomalous for the statute to withhold from them a benefit it affords
those convicted.
This
points to the conclusion that section 20(10) expunges the previous
conviction, and reinstates the former convict to full
civic status,
so that he or she is deemed never to have been convicted. But it
does no more. It does not render untrue the fact
that the
perpetrator was convicted, or expunge the deed that led to his or
her conviction. Those remain historically true. The
statute does not
address these facts of history, nor does it attempt to mute their
description. It does not stifle the language
that may accurately
describe the events that led to the conviction, nor does it censor
the terms that may truthfully be applied
to the facts, though the
law of defamation does.
In
addressing the legal consequences of conviction only, section 20(10)
does not presume to have a linguistic effect, or to govern
the
discourse that arises from the conviction.
The
Constitution reinforces the conclusions reached earlier on the ambit
of the Reconciliation Act. The Preamble to the Constitution,
its
founding values and this Court’s jurisprudence have all
emphasised that our venture in constitutionalism and democracy

commits us to transforming our society from an oppressive past to a
non-racial, just and united nation. Two interlinked aspects
of that
quest are our understanding of reconciliation, and our approach to
the democracy we wish to create.
An
important question is whether it is appropriate to see the
Reconciliation Act as constituting a definitive and final
pronouncement
on the meaning of reconciliation. Has public discourse
on the reconciliation process and its meaning ended, and must it in
law
be deemed to have ended? The answer must be No. A more supple
approach is to accept that the meaning of reconciliation is still

unfolding, and that the fragilities of its meaning cannot be
prescribed by law: and hence the best chance for successful
reconciliation
lies in fostering open public discussion. In this,
boundaries should be set not by assessing the reasonableness or good
taste
of the content of debate, but by the process within which
debate occurs.
This
Court has already ruled in favour of an open, processual approach to
understanding our democracy and the need for reconciliation
that
underlies it. In
Albutt
,
80
we ruled that the process of reconciliation could not rationally be
extended by granting pardons under a special dispensation
to
perpetrators of politically motivated wrongs without hearing those
injured. It rejected the argument that because the pardons
at issue
applied to those who did not apply for amnesty under the TRC
process, and therefore fell in time beyond the TRC, the
requirement
that victims be heard could be eschewed.
81
This
decision is pertinent in that it points to the function of the law
in regulating process rather than suppressing content.
The law of
defamation sets one of the boundaries within which public debate
takes place. And public debate lies at the heart
of participatory
democracy.
Albutt
has enhanced our understanding of what
reconciliation and our participatory democracy entail. This
judgment’s interpretation
of the Reconciliation Act accords
with that conception.
To
summarise. There are at least four reasons why Mr McBride’s
argument cannot prevail. First, it depends on a literal and

acontextual approach, which runs counter to the decision in
Du
Toit
. Second, it is inimical to truth-telling, which was one of
the moral bases of the transition from the injustice of apartheid to

democracy and constitutionalism. It is hardly conceivable that a
statute premised on the necessity of truth-telling in pursuit
of
national unity and reconciliation should operate so as to render the
truth false. Third, the interpretation fails to give
weight to the
right of freedom of expression. Fourth, it overreaches the benefits
Mr McBride earned when he sought and was granted
amnesty: it would
disturb the delicate interplay of benefit and disadvantage the
statute reflects, thereby also creating an untenable
anomaly in that
only those convicted, but not those never charged, would gain
immunity from truthful description of their deeds.
Defamation
and the defence of protected or “fair” comment
Does
this mean that, despite amnesty, Mr McBride’s conviction for
murder can indefinitely be flung in his face? Can he be
called a
murderer “forever and a day”? The answer is No. The
common law of defamation conformably with the Constitution
82
protects Mr McBride’s right to reputation and dignity.
83
The law of defamation requires at the outset that an issue be a
matter of public interest before any defamatory allegations may
be
made of another. This inhibits indefinite re-conjuring of past
issues.
84
As
already noted, the Citizen abandoned all their pleaded defences, bar
that the offending articles were protected because they
were
comments on matters of public interest. The defence protects
criticism, comment or expressions of opinion “on facts
which
are true, and relate to matters of public interest, and if they are
such as any fair man might make on those facts.”
85
To prevail against Mr McBride’s claim, the defence requires
the Citizen to show that – (i) the defamatory statements
are
comment or opinion; (ii) they are “fair” (in a special
sense explained below); (iii) the factual allegations
being
commented upon are true; and (iv) the comments relate to a matter of
public interest.
86
Nearly
a century ago, in the judgment that firmly authenticated the defence
in South African law,
87
Innes CJ remarked that the use of the term “fair” to
describe the defence is “not very fortunate”.
88
He was right. As he explained, the criticism sought to be protected
need not “commend itself” to the court. Nor need
it be
“impartial or well-balanced.”
89
In fact, “fair” in the defence means merely that the
opinion must be one that a fair person, however extreme, might

honestly hold, even if the views are “extravagant,
exaggerated, or even prejudiced”.
90
The comment need be fair only in the sense that objectively speaking
it qualifies “as an honest, genuine (though possibly

exaggerated or prejudiced) expression of opinion relevant to the
facts upon which it was based, and not disclosing malice.”
91
So to
dub the defence “fair comment” is misleading. If, to be
protected, comment has to be “fair”, the
law would
require expressions of opinion on matters of fact to be just,
equitable, reasonable, level-headed and balanced. That
is not so. An
important rationale for the defence of protected or “fair”
comment is to ensure that divergent views
are aired in public and
subjected to scrutiny and debate.
92
Through open contest, these views may be challenged in argument. By
contrast, if views we consider wrong-headed and unacceptable
are
repressed, they may never be exposed as unpersuasive. Untrammelled
debate enhances truth-finding and enables us to scrutinise
political
argument and deliberate social values
.
93
Protected
comment need thus not be “fair or just at all”
94
in any sense in which these terms are commonly understood.
95
Criticism is protected even if extreme, unjust, unbalanced,
exaggerated and prejudiced, so long as it expresses an honestly-held

opinion, without malice, on a matter of public interest on facts
that are true.
96
In the succinct words of Innes CJ, the defendant must “justify
the facts; but he need not justify the comment”.
97
Perhaps
it would be clearer, and helpful in the understanding of the law, if
the defence were known rather as “protected
comment”.
98
A new name would not change the requirements. At common law it was
rightly held that “fairness” in fair comment must
draw
on the general legal criterion of reasonableness.
99
In our constitutional state, comment on matters of public interest
receives protection under the guarantee of freedom of expression.

Hence the values and norms of the Constitution determine the
boundaries of what is protected. To call the defence “protected

comment” may illuminate the constitutional source and extent
of the protection.
100
In
applying the Constitution to the law of defamation, this Court has
noted the special responsibility of the media in fostering
democracy
and the free fund of information that is indispensable to it. In
Khumalo and Others v Holomisa
,
101
the Court emphasised the duty of the media to be “scrupulous
and reliable”:
“
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 fledgling democracy. If they
vacillate in the performance of their duties, the constitutional

goals will be imperilled.”
102
That
is the role of the media. The role of the courts in fulfilling these
constitutional ideals, with reconciliation as their
underlying
theme, is to develop and adapt legal rules to enhance the
Constitution’s vision of democracy. The courts cannot

prescribe what people may or should say. Nor, as I have already
indicated, does the proper interpretation of the Reconciliation
Act
suggest any greater policing or prescriptive role for the courts.
Applying
the law and the principles to Mr McBride’s claim
The
factual claims the Citizen pleaded as the basis for its comment
were, first, that Mr McBride was a murderer and a criminal
because
of the bomb he detonated in 1986 which killed several people; and
second, that he had engaged in a “dubious flirtation
with
alleged gun dealers in Mozambique”. In addition, the Citizen’s
coverage claimed that he lacked contrition for
what he did, because
he still thought he “did a great thing as a ‘soldier’,
blowing up a civilian bar”.
The
defence of protected or “fair” comment requires at the
outset that the facts be “truly stated”.
103
This means that to receive the benefit of the defence it must be
clear to those reading a publication “what the facts are
and
what comments are made upon them.”
104
A commentator is not protected if he or she “chooses to
publish an expression of opinion which has no relation, by way
of
criticism, to any fact before the reader”.
105
The
requirement that the facts must be truly stated does not mean, as
Innes CJ pointed out a century ago, that “in all cases
the
facts must be set out verbatim and in full”.
106
This is because “there may be cases where the facts are so
notorious that they may be incorporated by reference.”
107
And indeed, in the decision that authoritatively incorporated the
defence of protected or “fair” comment into South

African law, the Court took account of notorious facts about the
labour disturbances on the Witwatersrand during 1913 and 1914,
from
which the disputed publication arose,
108
even though the comment did not expressly set them out. It was
enough that the facts were “in the common knowledge of the

person speaking, and those to whom the words are addressed”.
109
Here,
the Citizen’s articles appeared over a seven-week period
between
10 September and 30 October 2003. The first article
mentioned that Mr McBride applied for and was granted amnesty. The
second,
the next day, related that his death sentence for the
bombing had been commuted, and that the TRC “also granted him
amnesty”.
The later articles, however, called Mr McBride a
murderer and a criminal without mentioning amnesty.
In my
view, the facts pertinent to the Citizen’s comment were
adequately stated. This conclusion derives from several

considerations.
First,
Mr McBride was a very widely-known public figure. His action in
detonating the Durban beachfront bomb was one of the most

prominently debated acts of the anti-apartheid struggle. It is
mentioned in the very first sentence of the foreword to the TRC

Report.
110
Mr McBride received amnesty as part of the TRC process, which was
familiar to almost every South African. Most South Africans

interested or in touch with current affairs would have been aware
that Mr McBride had been granted amnesty. Newspaper readers
tend to
show interest in current affairs, so it is reasonable to assume that
the readership of the Citizen was likely to have
known that Mr
McBride received amnesty for his conviction for murder. This fact
was so well-known as to be notorious. It would
not require
recitation in referring to the deeds he had committed for which he
was granted amnesty.
Second,
the Citizen in any event reminded its readers that Mr McBride
received amnesty. This was done in the first article, and
again in
the front page report the next day. In consequence, readers
interested in the newspaper’s comment and opinion
would have
been familiar with the fact that Mr McBride was convicted of murder
and sentenced to death, but that he was granted
amnesty.
Third,
it seems to me to be wrong to assume that newspaper readers read
articles in isolation. This is particularly so when they
read
editorial comment or columnists commenting on current affairs. It is
likely that, in assessing comment, readers will bring
to mind recent
news coverage of the events in issue. Here, the articles attacking
Mr McBride’s candidacy were closely linked in time (seven
weeks), and theme (police chief of big metro) to a current
controversy
(Mr McBride’s suitability for appointment). It
would be unrealistic to conclude that readers who read the first
Williams
article
(18 September), or the front page report (22
September), or the Kenny article
(21 October), or the second
Williams article (22 October), would not have known, and held in
mind, that he had committed the bombing
as part of the struggle
against apartheid, and that he received amnesty for it.
111
This
conclusion accords with decisions of the European Court of Human
Rights to the effect that a publication alleged to be defamatory

must be assessed in relation to the coverage as a whole.
112
Considering the Citizen’s coverage as a whole also accords
with the decision of the Supreme Court of the United Kingdom
in
Spiller
.
113
There the Court loosened the requirements for including facts
underlying comment. The Court held that the comment need only
“explicitly or implicitly indicate, at least in general terms,
the facts on which it is based.”
114
It
may be useful to pause and summarise. The Reconciliation Act did not
render it untrue that Mr McBride committed murder. And
it did not
prohibit frank public discussion of his act as “murder”.
Nor did it proscribe his being described as a
“criminal”.
The Citizen’s comments, deriving from the fact of Mr McBride’s
deed, were based on adequate
exposition of the pertinent facts.
The
balance between dignity and free expression – were the
Citizen’s comments protected as “fair comment”?
Apart
from the claim that he lacked contrition, to which I return later,
115
the Citizen’s comments on Mr McBride’s suitability for
office derived from two statements that were true –
that Mr
McBride had committed murder, and was thus a murderer, and on his
episode in Mozambique.
Proceeding
from these factual premises, the newspaper’s coverage
constituted in significant part comment on Mr McBride’s

suitability for an important and prominent public post. The
appointment would bring him power and responsibility, and put major

resources at his disposal. The job accordingly demanded public
trust. Public debate about his fitness for the post was therefore

important.
It
was also important that public debate about his fitness should,
within the constitutional bounds protecting Mr McBride’s

dignity and reputation, be untrammelled. Public debate in South
Africa has always been robust. More than fifty years ago, within
the
then-constrained perimeter of racially-defined public life, a court
noted that in this country’s political discussion,
“[s]trong
epithets are used and accusations come readily to the tongue.”
116
The Court also found that allowance must be made “because the
subject is a political one, which had aroused strong emotions
and
bitterness”, of which readers were aware, and that they “would
not be carried away by the violence of the language
alone.”
117
These
words are still apt today.
118
Public discussion of political issues has if anything become more
heated and intense since the advent of democracy. A constitutional

boundary is the express provision in the Bill of Rights that freedom
of expression does not extend to hate speech.
119
Another is the legitimate protection afforded to every person’s
dignity, including their reputation. But, so bounded, it
is good for
democracy, good for social life and good for individuals to permit
maximally open and vigorous discussion of public
affairs.
120
The
Citizen was thus entitled to express views on Mr McBride’s
suitability for the post. It did so with coverage that strikes
me as
to a degree ungenerous and distasteful. Here I have in mind
statements that persons recommending Mr McBride for appointment

“should have their heads read”, that his appointment
would be a “slap in the face” of those fearing crime,

that “the evil of his multiple murders” made him unfit
to be a policeman, that detonating a bomb that killed civilians
“was
the act of human scum” and the references, in a headline and
one article, to “bomber McBride”.
The
same applies to the Citizen’s repeated use of the epithets
“murderer” and “criminal” in referring
to Mr
McBride. These, too, strike me as vengeful, and distasteful. But my
opinion is not the issue. And the Reconciliation Act
does not afford
those who were granted amnesty moral absolution, or freedom from
opprobrious condemnation.
121
Nor does it muzzle those who choose to discuss their deeds in
abrasive, challenging and confrontational terms. That is what the

Citizen did. All it said flowed from its opinion on whether Mr
McBride was fit to hold an important public post. It should

therefore be permitted significant leeway.
Honestly
held opinion and malice
As
already indicated, it is a requirement in our law that the comment
sought to be protected must qualify “as an honest,
genuine
(though possibly exaggerated or prejudiced) expression of opinion
relevant to the facts upon which it was based, and
not disclosing
malice”.
122
This seems to entail two requirements, one positive and one
negative, namely honesty of belief, and absence of malice. The

argument for Mr McBride seemed to aim at establishing lack of honest
belief and presence of malice. Given the facts of this case,
it is
not necessary for this Court to consider whether these are
independent or cumulative requirements, or, if they are, whether
the
Constitution requires that the common law should be developed in
relation to them. This is because Mr McBride’s argument
that
the Citizen’s opinion was not honestly held, and that it was
maliciously expressed, failed to find any basis in the
evidence.
Counsel
for Mr McBride insisted that the Citizen’s comments were
malicious. Counsel submitted that the Citizen published
the articles
out of personal spite and ill-will towards Mr McBride, and not out
of any wish to engage in public debate about
his suitability for the
post. Counsel indeed contended that the articles manifested hatred
towards Mr McBride that went beyond
the bounds of fair comment. This
goes so far as to suggest that the views the Citizen expressed were
not honestly held.
The
question is whether the evidence established, first, that the
Citizen’s view as to Mr McBride’s suitability for

appointment was genuinely held and, second, if it was, whether the
Citizen abused its right to express that view, “for
malice
indicates an abuse of right, which makes unlawful that which would
otherwise have been lawful”.
123
Mr
McBride’s contention, in other words, is that the Citizen used
the occasion of his candidacy, and its right to comment,
not to
advance a genuinely-held view in relation to his fitness for office,
but for purposes unrelated to the question of his
appointment.
124
This
contention cannot be sustained. It is correct that the Citizen
stated one incorrect “fact” in support of its
views –
namely its assertion, which, as I conclude below, was false,
125
that Mr McBride lacked contrition. But this was only a small portion
of its coverage, whose major and preponderant basis plainly
was the
newspaper’s view about his past conduct in planting a bomb
that killed innocent people.
The
Citizen called two of the writers, Mr Kenny and Mr Williams, to
testify. There is no reason to doubt that they genuinely held
the
view that Mr McBride was unfit for the post of police chief. And Mr
McBride did not contend that the view that his past conduct
made him
unfit for a police post could not be honestly held at all.
126
There was furthermore no evidence to suggest that, in expressing its
views on Mr McBride’s suitability, the Citizen was
actuated by
any motive other than stoking public debate about his appointment.
127
The
comments were also relevant to that question. It is true that the
bombing was seventeen years before his appointment. But
Mr McBride
received amnesty in 2001 only two years before the issue of his
candidacy arose in 2003. The meaning and effect of
amnesty in
relation to a significant public appointment was thus in issue. This
was not raking up the past, but determining its
meaning in relation
to a very current issue.
The
evidence offers no basis for concluding that the Citizen was acting
out of improper personal or other motive, or that it was
seeking to
advance any cause, agenda or view in relation to Mr McBride other
than questioning his fitness for public office.
The inference in
these circumstances that the newspaper’s campaign against Mr
McBride’s appointment was malicious
seems in my respectful
view to derive solely from the vehemence with which the Citizen
conducted its campaign.
As
already noted, the Citizen’s coverage was in my view indeed
unrelentingly harsh and unforgiving. But it would be wrong
to
withhold legal protection from it on the ground that it evidenced
malice.
128
Once
the contention as to malice fails, it must follow that, aside from
the claim that Mr McBride was not contrite, to which I
now turn, the
bulk of the Citizen’s comment was based on fact that was
adequately stated, and that fell within the bounds
of
constitutionally protected comment.
Mr
McBride’s contrition
Mr
McBride complained that the Citizen defamed him by stating that he
was not contrite, but that instead he still thought “he
did a
great thing as a ‘soldier’, blowing up a civilian bar.”
The specific meaning he complained of was that
this statement, with
others, meant, and was understood by readers to mean, that he was
“morally corrupt”.
There
can be no doubt that it is highly defamatory to claim that a person
who carried out an anti-apartheid bombing in which innocent
people
died lacks contrition. It is one thing to say that someone committed
murder for a high political goal. It is quite another
to say that,
years after the event, he has no contrition for the innocent lives
his deed exacted. The defamatory sting is worse
when the person is
aiming for prominent public office and more particularly when the
public office involves the safety and security
of the public, as the
police chief position did.
The
Citizen therefore had to prove its claim that Mr McBride was without
contrition. But, far from proving as a fact that Mr McBride
was not
contrite, the Citizen called no evidence to establish the assertion.
It barely tried to cross-examine Mr McBride to draw
into question
his evidence that he was contrite.
Alternatively,
if the Citizen’s pronouncement on Mr McBride’s
contrition was a comment, then the facts pertinent to
it had to be
stated, or be notorious. Yet the facts supporting Mr McBride’s
evidence that he did show contrition were nowhere
stated in the
articles claiming that he was not contrite, nor were they notorious.
In his amnesty application in April 1997,
he placed this on record:
“
For
the injuries, deaths, sadness and loss that I have caused people
through my participation in the struggle to liberate our country
I am
truly sorry. I hope that through this amnesty application I am able
to, in some way, contribute towards the very long and
painful process
of reconciliation and healing.”
He added:
“
All
the operations detailed above were carried out in accordance with the
aims and objectives of the African National Congress.
As a member of
Umkhonto we Sizwe my objective was the furtherance of the armed
struggle against the Apartheid state with the intention
of
overthrowing this state and replacing it with a democratic one. All
my actions were geared towards the undermining and weakening
of this
state so that it would be forced into a peaceful negotiated
settlement with the ANC and other liberation movements.”
At
the trial, Mr McBride’s attorney, Mr Brian Curren, testified
that Mr
McBride had told him that “he would
forever live with the memory of that deed and the people that he
killed” and that
he realised he “could not expect the
family [of the young women killed] to forget and to forgive and to
welcome his release”.
Mr
Curren expressed the view that Mr McBride was contrite in the early
1990s after then-President De Klerk initiated negotiations.
In
cross-examination Mr Curren conceded that he did not know whether Mr
McBride had asked the families for forgiveness. But he
pointed out
that the Reconciliation Act did not make this a precondition for
amnesty.
Mr
McBride testified that he tried to meet with family members of those
injured, but when he did so someone had tried to assassinate
him. He
remarked: “Now I might be intent on reconciliation and might
be contrite but I am not an idiot, I am not going
to lie down and
die because someone wants to take revenge against me.” He
asserted that he had not felt obliged to take
part in the
reconciliation process because he had already been released from
prison: he wanted to do so because he truly believed
in
reconciliation.
He
testified that at the TRC hearing he had affirmed that this is what
he believed in “and that is what I still believe
in.” He
recounted that, at the same hearing, which was held in public and
televised, he expressed to the families of the
people he injured
“contrition and remorse for the pain and sorrow that I
caused.” He stated that “[a] cursory
glance of my
amnesty application will indicate my contrition and regret for the
loss of life during the struggle against apartheid.”
This
was not shaken in cross-examination. The Citizen’s claim that
Mr McBride lacked contrition was therefore unfounded
and false.
Alternatively, if the Citizen wished to express the view that Mr
McBride was not contrite, it was obliged to inform
its readers of
the facts underlying its opinion, since they were not notoriously
known. As the trial judge found, the information
was available to
the Citizen at the time it claimed Mr McBride lacked contrition. It
made no reference to it. Its assertion was
therefore a far-going and
unwarranted untruth, which would have brought Mr McBride into great
disrepute with the reasonable reader.
In my view, an egregious
defamation was so perpetrated, and the award of damages for it
should reflect this.
This
concludes consideration of the Citizen’s application for leave
to appeal. Leave must be granted and the appeal only
partially
upheld. I deal with the question of damages after considering Mr
McBride’s application for leave to cross-appeal.
“
Dubious
flirtation with alleged gun dealers in Mozambique” –
application for leave to cross-appeal
The
Citizen stated that Mr McBride had engaged in a “dubious
flirtation with alleged gun dealers in Mozambique”. It
also
said that in “1998 he was detained in a Mozambique jail on
suspicion of gun-running”, and that he was a “suspect
in
gun dealing”. Mr McBride claimed that this meant that he had
“made common cause, or attempted to make common cause”

and “been involved in illegal activities” with gun
dealers and with criminals in Mozambique. The trial judge upheld

this claim, but the Supreme Court of Appeal found that Mr McBride
had not established the defamatory meaning on which he based
his
complaint. It held that the Citizen’s statements meant only
that the flirtation with alleged gun dealers in Mozambique
was
suspicious and may have been criminal – but not that Mr
McBride was indeed involved in criminal gun dealing.
129
Before
us, Mr McBride sought leave to cross-appeal against this finding. He
urged us to find that the defamatory meaning he pleaded
was the
correct reading. Counsel urged that the Citizen’s claim that
Mr McBride’s interaction with the alleged gun
dealers was
suspicious meant, in context, that his conduct in Mozambique
constituted a criminal offence. Counsel also urged that
the
distinction the Supreme Court of Appeal drew between suspicious
activities and actual illegality was without substance.
But
it seems to me that the Supreme Court of Appeal was correct in the
meaning it gave the statements. “Dubious flirtation”

with “alleged” gun dealers can not mean making common
cause with dealers. Nor can it mean involvement in illegal

activities with criminals. And stating that Mr McBride was a
“suspect” in gun dealing does not mean that he was
actually involved in gun dealing.
On
the contrary: as the Supreme Court of Appeal found, it conveys only
that he may have been involved with criminal gun dealers.
The
meaning of the statement is not that Mr McBride should be regarded
as a criminal because of the Mozambique episode, as Mr
McBride
claimed, but only that, in addition to the fact that he committed
murder, the episode clouded his candidacy for police
chief.
It is
true, as counsel for Mr McBride pointed out, that Mr Williams was
unable when challenged in cross-examination to provide
any facts
supporting the contention that Mr McBride may have been involved in
suspicious conduct in Mozambique. In addition,
Mr McBride’s
evidence that the Mozambique charges were unfounded was not
effectively challenged in cross-examination. Furthermore,
though it
stated that “he was subsequently released and sent home,”
the Citizen failed to state that the charges
were withdrawn. It may
be that it would have been fairer for the Citizen to do that. But to
give significance to this would allow
Mr McBride to unfairly
redirect his attack. It would require the Citizen, on appeal, to
defend itself against a claim Mr McBride
did not make. Mr McBride’s
claim was not that calling his activities in Mozambique suspicious
was defamatory, but that
referring to his “dubious flirtation”
with alleged gun dealers branded him a criminal. It did not. The
meaning attributing
actual criminality to Mr McBride was pleaded but
not established. On the other hand, the meaning that calling his
activities
suspicious was itself defamatory, was not pleaded, and
therefore did not need to be dealt with in the evidence. We do not
know
whether the Citizen would have been able to mount a defence in
the face of an appropriate claim by Mr McBride.
The
Supreme Court of Appeal was therefore correct to uphold the
Citizen’s appeal against the High Court’s award of

damages for the gun-running statements. Since Mr McBride has not
established that the articles bore the meaning he alleges defamed

him, his application for leave to cross-appeal must be dismissed.
Relief
Except
for the false accusation that Mr McBride lacked contrition, the
appeal must therefore succeed. The claim that he was not
contrite
was seriously and grievously defamatory. In my view, a substantial
sum should be awarded in recompense for it.
R50 000 would be
appropriate.
As
mentioned earlier,
130
Mr McBride’s particulars of claim included a prayer that the
Citizen be ordered to print a front page apology. The High
Court
concluded that granting this order would serve no useful purpose. Mr
McBride did not cross-appeal to either the Supreme
Court of Appeal
or to this Court against the denial of this element of his claim.
The reason the High Court gave for denying
the apology was that the
journalists and the Citizen remained unrepentant in their attitude
to Mr McBride. This led that Court
to conclude that the amount of
damages should be increased, but that no apology should be ordered.
It is by no means clear that
ordering an unrepentant media defendant
to apologise to a defamed plaintiff serves no purpose.
131
For this reason,
this Court on 7 March 2011
issued directions
132
inviting the parties to submit argument on
whether it would be appropriate to order the Citizen to publish an
apology. The parties
and the amici accepted the invitation.
The
Citizen accepts that an apology may be a competent remedy but should
be ordered against the media only if the parties first
agree on its
terms. Alluding to law reform initiatives in the United States and
England, it suggests that to compel a media defendant
to publish an
apology would otherwise be inconsistent with the right to freedom of
the media. Generally however it agrees that
an apology could strike
the right balance between freedom of expression and the right to
dignity because freedom of expression
may be unnecessarily stifled
by orders awarding substantial damages.
The
FXI and the SANEF submit that ordering the Citizen to publish an
apology would be appropriate. They reflect on
Le
Roux and Others v Dey
.
133
There this Court found that ordering an apology
was an appropriate measure of restorative justice in a case
involving ruptured
personal relationships, where the
defendants actionably impaired the dignity of the plaintiff.
134
They contend that an apology is a more effective
way of vindicating dignity rights than a damages award, that it
would minimise
the chilling of lawful freedom of expression, and
that the remedy has already been employed by the Press Ombudsman and
Press
Appeals Panel against media defendants. These amici note that
a variety of possible remedies for defamation exists, including a

declaration of falsity, but submit that generally the best approach
would be to order a voluntary apology, with damages only
as an
alternative.
Mr
McBride advances four reasons why an apology would be inappropriate.
First, the High Court found that an apology “would
serve no
useful purpose.” Mr McBride did not cross-appeal, and
therefore apology and indeed quantum of damages were not
argued
before the Supreme Court of Appeal or this Court. Second, ordering
media defendants to apologise raises complicated questions
that need
careful consideration and full argument. Third, the current dispute
is different from
Le Roux
because there is no personal
relationship to restore. And finally, the Citizen has displayed no
remorse and therefore any apology
would be hollow.
It
may well be that the remedies readily to hand when a court considers
the relief to which a plaintiff is entitled in a defamation
case
should include a suitable apology. The importance of apology in
securing redress and in salving feelings cannot be under-estimated.

As pointed out in
Le Roux,
apology is an important aspect of
restorative justice.
135
In this case, it could well have been a fit part of the order to
require the Citizen to publish an apology for its ill-fitting

assertion that Mr McBride lacked contrition. However, Mr McBride’s
contention that an apology would be inappropriate weighs
against
ordering it. In addition, the complexities the Citizen points to
when a court orders a media defendant to apologise,
and the law
reform initiatives in other countries, will benefit from fuller
consideration and debate on a future occasion. It
would therefore
not be appropriate to order an apology in this case, and the
question of an apology where a media defendant has
defamed another
must await another day.
Costs
Since
Mr McBride was justified in pursuing legal action to claim
compensation for the false assertion that he lacked contrition,
it
follows that he should receive his costs of trial. Given the
magnitude of the wrong, and his public prominence, he was justified

in resorting to an action in a High Court, and should therefore
receive his costs of suit in that Court. The Supreme Court of

Appeal, in allowing the Citizen’s appeal in part, but
confirming the award of most of Mr McBride’s damages, ordered

the Citizen to pay three-quarters of Mr McBride’s costs in
that Court. But both in that Court, and in this Court, each
side has
achieved partial success. Mr McBride was obliged on appeal to defend
the award of any amount of damages to him. In that
he succeeded in
both the Supreme Court of Appeal and in this Court. It seems to me
fair to make no order as to costs in either
appellate court. The
difference between the amount awarded in this Court (R50 000) and in
the Supreme Court of Appeal (R150 000)
permits us to intervene to
replace its costs award, and to substitute instead no order as to
costs there.
Order
In
the result, the following order is made:
The
Citizen’s application for leave to appeal is granted.
The
appeal succeeds to the extent that the order of the Supreme Court
of Appeal is set aside and replaced with the following
order:
The
plaintiff’s claim is dismissed except in relation to the
defendants’ claim that the plaintiff was not contrite.
The
plaintiff is awarded damages of R50 000, with costs of trial.
Mr
McBride’s application for leave to cross-appeal is refused.
There
is no order as to costs in this Court or the Supreme Court of
Appeal.
Brand AJ,
Froneman J, Nkabinde J and Yacoob J concur in the judgment of
Cameron J
NGCOBO CJ:
Introduction
This
case concerns three statements that appeared in The Citizen
newspaper (The Citizen) during September and October 2003,
namely
that: (a) the respondent (Mr McBride) is a murderer and a criminal;
(b) he is not contrite and is proud of having killed
civilians
during the struggle against apartheid; and (c) he had dubious
flirtations with alleged gun dealers in Mozambique.
The question to
be determined in relation to each of these statements is whether
they are protected by the defence of fair
comment. That is the
defence to defamation asserted by The Citizen and the two
journalists who made these statements. They
claim that the
statements were made in support of their view that Mr McBride was
not fit to be appointed as the Ekurhuleni
Metro Police Chief.
138.
Cameron J upholds the fair comment defence in relation to all but
the statement that Mr McBride is not contrite. He holds
that the
statement that Mr McBride is not contrite for planting a bomb that
killed civilians during the struggle against apartheid
is untrue,
and, to the extent that it is a comment, that it is not supported by
facts accurately stated. As the facts upon which
a fair comment is
based must be true, the defence in relation to this statement must
fail. I agree. The statement was simply
false. However, I am unable
to agree with his conclusion in relation to the statement that Mr
McBride had a dubious flirtation
with alleged gun dealers in
Mozambique. This statement is based on a half-truth and is therefore
also untrue.
139. I
agree with Cameron J that the defence must be upheld in relation to
the statement that Mr McBride is a multiple murderer
and a criminal.
However, my reasons for reaching that conclusion differ both in
their approach and emphasis.
140. This
case raises two important questions: first, how to achieve the
appropriate balance between freedom of expression and
human dignity;
and second, the effect of granting amnesty on the defence of fair
comment, in particular whether Mr McBride can
continue to be
referred to as a criminal and a multiple murderer for having been
convicted of planting a bomb that killed civilians,
despite having
been granted amnesty in respect of that act.
Freedom
of expression
141. The
importance of the right to freedom of expression cannot be gainsaid.
Freedom
of expression is an important instrument to a democratic government.
It is especially important to our constitutional
democracy, which is
both representative and participatory.
136
As the Preamble of the Constitution makes plain, ours is “a
democratic and open society in which government is based on
the will
of the people”. Free expression of opinion, including critical
opinion, is essential to the proper functioning
of our
constitutional democracy.
137
As this Court pointed out in
Khumalo and Others v Holomisa
,
freedom of expression is “integral to a democratic society”,
and without it, “the ability of citizens to make
responsible
political decisions and to participate effectively in public life
would be stifled.”
138
142. The
Constitution proclaims, as one of the foundational values of our
Republic, the advancement of human rights and freedoms.
This is to
repudiate the previous legal order, which was characterised by
censorship and the suppression of freedom of expression.
Indeed, a
large majority of the population was denied the right to have a say
in how they should be governed. In repudiating
our past and
providing for freedom of expression, our Constitution recognises
what the United States Supreme Court described
in the landmark case
of
Whitney v California
, that:
“
[F]reedom
to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth;
. . .
that the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should
be a
fundamental principle of [our] government.”
139
(Citation
omitted.)
Human dignity
143. But
freedom of expression must be construed in light of the other values
enshrined in our Constitution, in particular human
dignity. The
Constitution proclaims human dignity to be one of the foundational
values of our constitutional democracy. Human
dignity is
specifically mentioned in section 1 of the Constitution in order to
contradict our racist past.
140
For this reason, the Constitution holds human dignity up as not only
a human right that is given constitutional recognition,
as with
freedom of expression, but also as a fundamental value upon which
the legitimacy of the sovereign state is based. The
Republic was
“founded on” the value of human dignity, and failure to
uphold that value is both a violation of a constitutional
right and
a threat to a bedrock principle that underpins the legitimacy of the
state.
144. We
have recently emerged from a legal order that was founded on racism
and characterised by gross discrimination against
black people, in
particular, black Africans.
141
It sought to dehumanise its victims and strip them of their human
dignity by relegating them to an inferior status. As the lone

dissenting voice observed in
Minister of Posts and Telegraphs v
Rasool
:
“
Now
this [apartheid-era] Legislation, it seems to me, creates one status
for the [whites], another and inferior status for [Asians],
and
another and more inferior status for [Africans]. . . . To
my mind this relegation . . . is
humiliating
treatment. . . . In view of the prevalent
feeling as to colour, in view of the numerous statutes
treating
[blacks] as belonging to an inferior order of civilisation, any
fresh classification on colour lines can, to my mind,
be interpreted
only as a fresh instance of relegation of [Asians] and [Africans] to
a lower order, and this is I consider humiliating
treatment. Such
treatment is an impairment of the
dignitas
[dignity]
of the person affected”.
142
145. As
this passage makes plain, what was obnoxious with discrimination was
not merely the physical separation it promulgated,
but its basic
premise. It was premised on the inferiority of black people.
143
They had no dignity worth protecting. Thus, it was defamatory to
call a white man black.
144
Our Constitution rejected this. Under our new constitutional order,
the recognition and protection of human dignity is a foundational

value.
145
As we pointed out in
Dawood
146
:
“
The
value of dignity in our Constitutional framework cannot . . . be
doubted. The Constitution asserts dignity to contradict our
past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future,
to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels.”
147
(Citation
omitted.)
146. In
Khumalo
, and in the context of the law of defamation, we
considered the content of the value of human dignity and said:
“
The
value of human dignity in our Constitution is not only concerned
with an individual’s sense of self-worth, but constitutes
an
affirmation of the worth of human beings in our society. It includes
the intrinsic worth of human beings shared by all people
as well as
the individual reputation of each person built upon his or her own
individual achievements. The value of human dignity
in our
Constitution therefore values both the personal sense of self-worth
as well as the public’s estimation of the worth
or value of an
individual. It should also be noted that there is a close link
between human dignity and privacy in our constitutional
order. The
right to privacy, entrenched in s 14 of the Constitution, recognises
that human beings have a right to a sphere of
intimacy and autonomy
that should be protected from invasion. This right serves to foster
human dignity. No sharp lines then
can be drawn between reputation,
dignitas
and
privacy in giving effect to the value of human dignity in our
Constitution.”
148
(Citations
omitted.)
147. Thus
human dignity is one of the defining features of our constitutional
democracy. It underscores the proposition that in
us inheres the
inalienable right to be treated with dignity regardless of our
position in society, and to have that right respected
and protected.
Indeed, it seeks to reverse the dehumanising effect of the apartheid
legal order, which emphasised the inferiority
of black people and
the superiority of white people. And it has an important role to
play in establishing the new society envisioned
in the Constitution.
It permeates every right. The demand for equality and freedom is a
demand to be treated with dignity. It
is indeed difficult to think
of any right in the Bill of Rights which is not informed by human
dignity.
149
The proper approach
148. But
our Constitution knows no hierarchy of rights.
150
As we pointed out in
Mamabolo
—
“
the
Constitution, in its opening statement and repeatedly thereafter,
proclaims three conjoined, reciprocal and covalent values
to be
foundational to the Republic: human dignity, equality and freedom.”
151
(Citations
omitted.)
Thus
freedom of expression is just as important as human dignity—“it
is not a pre-eminent freedom ranking above all
others.”
152
The same is true of human dignity and equality. What must be
stressed are points that this Court has made previously, that

“[w]ith us the right to freedom of expression cannot be said
automatically to trump the right to human dignity” and

“freedom of expression does not enjoy superior status in our
law.”
153
This is true not just of freedom of expression, but also of human
dignity and equality.
149. The
question is how to balance these rights, both in principle and as
applied to a particular set of circumstances.
150. The
tension between these rights manifests itself in the context of a
claim for defamation. The law of defamation is aimed
at protecting
the dignity of individuals. As this Court has recognised, in
democratic societies “the law of defamation
lies at the
intersection of the freedom of speech and the protection of
reputation or good name.”
154
When considering a claim based on defamation, the proper approach is
to strive to achieve an appropriate balance between the
protection
of the right of freedom of expression, on the one hand, and the
right to human dignity, on the other.
151. The
evolution of defences to a claim of defamation that has taken place
under our common law has played an important role
in this balancing
of freedom of expression and human dignity.
152. This
has been recognised by our courts, as in
Argus Printing and
Publishing
,
155
where this Court said:
“
I
agree, and I firmly believe, that freedom of expression and of the
press are potent and indispensable instruments for the creation
and
maintenance of a democratic society, but it is trite that such
freedom is not, and cannot be permitted to be, totally unrestrained.

The law does not allow the unjustified savaging of an individual’s
reputation. The right of free expression enjoyed by
all persons,
including the press, must yield to the individual’s right,
which is just as important, not to be unlawfully
defamed. I
emphasise the word ‘unlawfully’ for, in striving to
achieve an equitable balance between the right to
speak your mind
and the right not to be harmed by what another says about you, the
law has devised a number of defences, such
as fair comment,
justification (ie truth and public benefit) and privilege, which if
successfully invoked render lawful the publication
of matter which
is
prima
facie
defamatory.”
156
153.
While the law of defamation therefore protects the legitimate
interests that an individual has in his or her reputation and

thereby furthers the value of human dignity, the defences to
defamation are important in balancing the right of the claimant
to
human dignity and the right of the defendant to freedom of
expression. We must therefore analyse these defences in the context

of the constitutional commitment to freedom of expression and the
value of human dignity.
154. The
defence that is in issue here is fair comment in the public
interest. It is necessary first to set out, in broad outline,
the
requirements for a defence based on fair comment.
The defence of fair comment
155. It
is now axiomatic that the defence of fair comment is part of our law
and constitutes a defence to a claim of defamation.
157
As far as I can establish, in this country the essential elements of
the defence of fair comment were first considered in
Crawford v
Albu
and are set out as follows:
“
Inasmuch
as it is the expression of opinion only which is safeguarded, it
follows that the operation of the doctrine must be confined
to
comment; it cannot protect mere allegations of fact. It is possible,
however, for criticism to express itself in the form
of an assertion
of fact deduced from other clearly indicated facts. In such cases it
will still be regarded as comment for the
purposes of this defence.
The operation of the doctrine will not be ousted by the outward
guise of the criticism. Then the superstructure
of comment must rest
upon a firm foundation, and it must be clearly distinguishable from
that foundation. It must relate to a
matter of public interest, and
it must be based upon facts expressly stated or clearly indicated
and admitted or proved to be
true. There can be no fair comment upon
facts which are not true. And those to whom the criticism is
addressed must be able to
see where fact ends and comment begins, so
that they may be in a position to estimate for themselves the value
of the criticism.
If the two are so entangled that inference is not
clearly distinguishable from fact, then those to whom the statement
is published
will regard it as founded upon unrevealed information
in the possession of the publisher; and it will stand in the same
position
as any ordinary allegation of fact. Further, the comment,
even if clearly expressed as such, and based upon true facts, must

be ‘fair’ in the sense that it does not exceed certain
limits.”
158
(Citations
omitted.)
156. In
Crawford
, the Court also considered the requirement that the
comment must be “fair”. All the members of the Court
accepted,
after referring to English authorities, that an expression
of comment is fair if it is relevant and is made honestly and
without
malice.
159
Innes CJ also accepted that the defence of fair comment will cover
imputations of evil motive if the imputations are reasonable

inferences from facts that are truly stated.
160
What the defence of fair comment ultimately requires is that the
defendant must justify the facts, that is, establish that the
facts
are true. It is not necessary for the defendant to justify the
comment, but he or she must satisfy the court that it is
“fair”.
161
157. The
requirement that a comment must be fair is consistent with the
values that underlie our constitutional democracy. It
underscores
the need to balance freedom of expression, on the one hand, and the
need to protect human dignity, on the other.
By insisting that a
comment must be fair, the common law demands that comment be fair
having regard to the right to human dignity.
The comment must be
relevant to the matter commented upon and it must not be actuated by
malice. It underscores the proposition
that freedom of expression
does not enjoy a superior status to other rights enshrined in the
Constitution. Indeed, it gives effect
to the constitutional
commitment this Court articulated in
Mamabolo
162
to “three conjoined, reciprocal and covalent values”
that are foundational to our Republic, namely, human dignity,

equality and freedom.
158. In
my view, the requirement of fair comment is consistent with the need
to respect and protect dignity. It maintains a delicate
balance
between the need to protect the right of everyone, including the
press, to freedom of expression and the need to respect
human
dignity. This is the balance that the Constitution requires be
struck. I do not, therefore, share the view expressed by
Cameron J
that the word “fair” is misleading. It must now be
understood in the light of our Constitution, in particular
the
foundational values of human dignity and freedom upon which our
constitutional democracy rests and the need to strike a balance

between ensuring that freedom of expression is not stifled and
insisting on the need to respect and protect human dignity.
159. To
sum up, therefore, the essential elements for the defence that can
be distilled from our case law are: (a) the statement
must be one of
comment and not of fact; (b) it must be fair, in that it must be
relevant to the matter commented upon and it
must not be actuated by
malice; (c) the facts upon which it is based must be true; and (d)
the comment must relate to a matter
of public interest. Of course,
the statement that is protected must be a statement that is
defamatory upon its face.
160. The
statements complained of are no doubt criticisms of Mr McBride. In
essence, the first statement is that Mr McBride is
a murderer and a
criminal; the second is that he lacks contrition; and the third is
that he engaged “in dubious flirtations
with alleged gun
dealers in Mozambique.” As Cameron J observes, The Citizen and
the journalists rightly abandoned their
denial that the statements
published and complained of were defamatory.
163
They are indeed. The question for determination is whether they fall
within the bounds of fair comment in the public interest.
161. The
issue that was debated at length in the courts below, as well as in
this Court, is the effect of granting amnesty to
Mr McBride in
respect of planting a bomb at a bar and a restaurant in Durban. The
three aspects of this issue were: (a) whether
Mr McBride could
continue to be called a murderer and a criminal despite the fact
that he was granted amnesty; (b) whether the
fact that Mr McBride
was granted amnesty should have been mentioned in the articles
complained of; and (c) whether the fact that
Mr McBride was granted
amnesty was sufficiently disclosed in the articles complained of.
The relevance of amnesty to the defence of fair comment
162. The
majority of the Supreme Court of Appeal took the view that the
granting of amnesty renders calling a person who has obtained

amnesty for a political murder a “murderer”, a false
statement.
164
This view is based upon the legal effect of granting amnesty. In
terms of section 20(10) of the Promotion of National Unity and

Reconciliation Act
165
(Reconciliation Act), once amnesty has been granted, “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”. But does
this render calling a person, who has been granted amnesty,
a
“murderer” false? The answer to this question must be
sought in the role of amnesty in our constitutional democracy.
163. The
importance of amnesty in our country cannot be gainsaid. Amnesty has
a special place in our history. One of the greatest
challenges that
this nation faced on the eve of our constitutional democracy was the
difficult and complex task of uniting a
nation that was deeply
divided by the strife, conflict, untold suffering and injustice of
the past; to ensure the well-being
of all South Africans; and to
preserve peace. It was realised that the pursuit of these national
goals would require “reconciliation
between the people of
South Africa and the reconstruction of society”.
166
Amnesty was therefore adopted in order to advance reconciliation and
nation building or reconstruction. This required full disclosure
of
the truth. But those who knew the truth had to come forward. To get
their cooperation, they needed an incentive. Amnesty was
an
incentive for truth-telling. Perpetrators of gross violations of
human rights committed with political motive would only get
amnesty
if they were willing to come forward and fully disclose their past
deeds.
164.
These imperatives informed our transition from our divided past to
the promise of a united and democratic future. It is captured
in the
epilogue which was added to the interim Constitution.
167
The epilogue declared:
“
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.”
165. As
this Court has explained in
AZAPO
,
168
the “historic bridge” between our past and the future
referred to in the epilogue may very well have been imperilled
by
the absence of a mechanism providing for amnesty. In the words of
Mohamed DP:
“
Even
more crucially, but for a mechanism providing for amnesty, the
‘historic bridge’ itself might never have been
erected.
For a successfully negotiated transition, the terms of the
transition required not only the agreement of those victimised
by
abuse but also those threatened by the transition to a ‘democratic
society based on freedom and equality’. If
the Constitution
kept alive the prospect of continuous retaliation and revenge, the
agreement of those threatened by its implementation
might never have
been forthcoming and, if it had, the bridge itself would have
remained wobbly and insecure, threatened by fear
from some and anger
from others. It was for this reason that those who negotiated the
Constitution made a deliberate choice,
preferring understanding over
vengeance, reparation over retaliation, ubuntu over victimisation”.
169
(Citations
omitted.)
166. To
my mind, conduct that threatens nation building and national
reconciliation is inimical to our constitutional democracy.
It would
indeed undermine our Constitution.
170
What is clear from the objectives of amnesty is that conduct in
respect of which amnesty was granted may not be used to undermine

nation building and national reconciliation. Equally clear is that
the legal effect of granting amnesty is to expunge any entry
or
record of a conviction. This means that in the eyes of the law, the
person who is granted amnesty no longer has a conviction
entered or
recorded against his or her name. The effect of this is that the
fact of his or her conviction may no longer, in law,
be used against
him or her. But the facts upon which his or her conviction rested
are not obliterated; they are historical facts.
167. I am
unable to discern anything in the objectives of the Reconciliation
Act that prevents the expression of an opinion based
on the conduct
in respect of which amnesty was granted. In the course of oral
argument in this Court, counsel for Mr McBride
accepted, properly in
my view, that a person can still be referred to as a murderer
despite the granting of amnesty. Counsel
submitted, however, that
the word murderer may not be used as a statement of fact but may be
used as an expression of comment
provided that the facts upon which
the comment is based are stated accurately. By accurately stating
the facts, I understood
him to mean stating, also, that the person
was granted amnesty. Having regard to the special role of amnesty in
our country,
the need to disclose the fact that Mr McBride was
granted amnesty cannot be gainsaid.
168. This
nation, as the epilogue to the interim Constitution makes plain, is
founded on the need “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” and on the need to
address the issues “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.”
This foundation was crucial to the twin objectives of reconciliation
and reconstruction to which
we, as a nation, committed ourselves,
and to which, one hopes, all of us remain committed. Those who came
forward to relate to
the nation the gross violations of human rights
that they had committed, played a crucial role in the process of
reconciliation
and reconstruction envisaged by the interim
Constitution.
169. We
are supposed to learn from our past so as to prevent gross human
rights violations from ever occurring in the future.
This flows from
the proposition that one of the greatest values of history is that
it teaches us to become wise after the event.
Indeed, those who
cannot remember the past are condemned to repeat it. The challenge
we face as a nation is how to remember that
past. Our constitutional
commitment to freedom of expression permits a person to refer to
past deeds despite the granting of
amnesty. But our constitutional
commitment to the value of human dignity does not “allow the
unjustified savaging of an
individual’s reputation.”
171
Reference to past deeds in respect of conduct for which amnesty has
been granted must therefore be made within constitutional
limits. I
would emphasise constitutional limits because—
“
in
striving to achieve an equitable balance between the right to speak
your mind and the right not to be harmed by what another
says about
you, the law has devised a number of defences . . . which if
successfully invoked render lawful the publication of
matter which
is
prima
facie
defamatory.”
172
(Citation
omitted.)
170. To
refer to conduct in respect of which amnesty was granted in the
context of comment on a matter of public interest does
not, in
itself, undermine national reconciliation and nation building. On
the contrary, it constitutes an act of free expression
and thereby
reaffirms freedom of expression as a foundational value of our
constitutional democracy.
171. Also
indispensible to creating and maintaining our constitutional
democracy, however, is the reconciliation and reconstruction
process
this nation embarked upon with the establishment of the Truth and
Reconciliation Commission (TRC). Reconciliation and
reconstruction
are the twin pillars on which our transition from a deeply divided
past to a future founded on the recognition
of universal human
rights, democracy, and peaceful co-existence firmly rest. When the
Constitution was adopted, “all the
provisions relating to
amnesty contained in the [interim] Constitution under the heading of
‘National Unity and Reconciliation’”
were
retained.
173
This underscores the importance of reconciliation and reconstruction
to our democracy. The values of reconciliation and reconstruction

are constitutionally protected and, to my mind, they are worthy of
protection by this Court. Just as freedom of expression does
not
automatically trump the value of human dignity, the value this
country places on reconciliation and reconstruction must enter
into
the balance when weighing freedom of expression against the value of
human dignity, in the context of a defamation claim
in which fair
comment is pleaded as a defence.
172. In
the context of South Africa, where reconciliation and reconstruction
play the pivotal role described above in our transition
to a
constitutional democracy and the maintenance of our new democratic
dispensation, it is especially important, when past deeds
for which
a person has been granted amnesty are used as the basis for
impugning that person’s suitability to hold public
office, for
the statement that invokes those past deeds to also mention the fact
that amnesty was granted.
173. It
follows from what I have said that I am unable to agree with the
proposition that the granting of amnesty obliterates
past deeds as
if they never occurred.
174
I did not understand Mr McBride to contend that it is unlawful to
refer to what he did in the past. His complaint was that
The
Citizen
was deliberately dishonest in failing to mention that he
was granted amnesty. I agree that referring to what he did in the
past
without mentioning that he was granted amnesty would be a
half-truth and thus untrue. The question is whether, having regard

to the context in which the statements complained of appeared, it is
clear that he was granted amnesty.
174. The
articles which formed the basis of Mr McBride’s defamation
claims are set out in the judgment of Cameron J. These
articles,
together, provide the context within which the statements complained
of must be understood and evaluated.
They
will not be reproduced here except to the extent that they are
relevant for purposes of this judgment.
The
meaning pleaded
175. Mr
McBride pleaded that the contents of the first editorial were
wrongful and defamatory in that they were intended to mean,
and were
understood by readers of The Citizen to mean, among other things:
that he is a criminal and a murderer, despite having
been granted
amnesty; that he has been involved in illegal activities with
criminals in Mozambique; and that he is morally corrupt.
The defence raised
176. As
Cameron J points out, the newspaper and its journalists initially
denied that the statements were defamatory of Mr McBride,
but that
defence was abandoned. They then pleaded the affirmative defence of
fair comment, arguing that the statements made were
not statements
of fact but were comments concerning a matter of public interest,
namely, the candidacy of Mr McBride for the
post of Ekurhuleni Metro
Police Chief and his unsuitability for that post. In response to a
request for further particulars to
their plea, they allege that
their comments were based on the facts that: (a) Mr McBride was a
murderer, as a result of him planting
a car bomb outside Magoo’s
Bar in 1986, where several people were killed; and (b) he was
detained in Mozambique on alleged
arms trafficking between
Mozambique and South Africa.
The
articles
177. The
articles that are relevant in this regard are those that were
published on 10 and 11 September 2003. The first article
was written
by Mr Kingdom Mabuza, and it was titled “McBride tipped to
head Metro cops”. It appeared in
The Citizen
of 10
September 2003 and reads 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
Mangoos and Why Not bars near the Durban beachfront in 1986. [sic]
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.”
178. Mr
Mabuza makes five points that are relevant to this case. First,
The
Citizen
had learned that Mr McBride’s name was mentioned
as a possible replacement for the former Ekurhuleni Metro Police
Chief,
who had recently resigned; second, Mr McBride, a former
Umkhonto we Sizwe (MK) operative, served four years on death row
after
being convicted for the car bomb explosion at Magoo’s
Bar in 1986; third, he was “widely condemned for the attack”

which was “widely perceived to be a ‘soft’
civilian target”; fourth, Mr McBride applied for and was
granted amnesty; and fifth, he was later arrested and charged with
gun running in Mozambique. He was subsequently released and
sent
home.
179. This
article did not form the basis of Mr McBride’s claim for
defamation. The next two articles were published the
following day,
11 September 2003. The first was titled “No comment on
McBride” and was published by the South African
Press
Association. All it said about issues relevant to this case was that
(a) Mr McBride “was sentenced to death during
the apartheid
era for his role in the bombing of a Durban beach-front bar”;
(b) his sentence was later commuted; (c) the
TRC also granted him
amnesty; and (d) the Ekurhuleni Metropolitan Municipality was
searching for a new Metro Police Chief. This
article, too, did not
form the basis of the defamation claim by Mr McBride.
180. The
second article of 11 September 2003 appeared at page 22 of
The
Citizen
and it was an editorial titled “Here comes
McBride”. It 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 recommended 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.”
181. This
article argues that Mr McBride, a candidate for the post of
Ekurhuleni Metro Police Chief, is “blatantly unsuited”

for the job. It gives, as a reason for its comment on Mr McBride’s
suitability, the fact that he is “a criminal”.
Two
reasons are given for him being “firmly in that category”:
first, the “cold-blooded multiple murders which
he committed
in the Magoo’s Bar bombing”; and second, “his
dubious flirtation with alleged gun dealers in Mozambique.”

This article formed the basis of Mr McBride’s first claim for
defamation.
182. It
is common cause that Mr McBride was being
considered for the position of
Ekurhuleni Metro Police Chief
.
The Citizen
and
the journalists consistently made the statement that he was not
suitable for this position, using statements that “he
is
blatantly unsuited” and “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.” This theme is also
emphasised by Mr Williams in his article,
where he stated “[b]ut
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.”
175
I will refer to it as “the first Williams article” as
Cameron J does.
And in the third editorial, dated
30 October 2003,
The Citizen
maintained that it performed a civic duty when it
alerted its readers of the
possibility that Mr McBride could
be named as Ekurhuleni Metro Police Chief and maintained its view
that “he was not the
right person for the job.” This is
in line with the stance taken by the newspaper that Mr McBride was a
criminal.
183. I am
satisfied that the statements that were made by The Citizen and the
journalists constituted in substance what they were
in form –
a comment on the suitability of Mr McBride for appointment to the
post of Ekurhuleni Metro Police Chief. That
comment related to a
matter of public interest. The next question, then, is whether the
facts underlying the comment were truly
stated.
Mr McBride is a “murderer”
184. The
statement that Mr McBride is a murderer may, depending on the
context, be either a statement of fact or an expression
of opinion.
In this case, it was pleaded as a statement of fact. This is how the
Supreme Court of Appeal treated it. And indeed,
having regard to the
context in which it occurred, it would have been understood by the
readers as a statement of fact in support
of the comment that Mr
McBride was not suitable for the position of Ekurhuleni Metro Police
Chief. The question is whether the
granting of amnesty renders this
statement false.
185. In
my view, what would render the statement false is the omission of
the fact that Mr McBride was granted amnesty. It is
a fact that Mr
McBride planted a bomb that killed civilians in the Why Not
Restaurant and Magoo’s Bar; that he was subsequently
convicted
of multiple murders as a result thereof; and that he was granted
amnesty in relation to these deeds by the TRC. The
omission of a
reference to amnesty would render statements concerning the deeds,
in respect of which Mr McBride was granted amnesty,
a half-truth.
186.
Counsel for the newspaper and the journalists conceded, properly, in
my view, that the omission of a fact may make an expression
of
comment untrue in relation to the stated fact. Thus the omission of
the fact that Mr McBride applied for and was granted amnesty
would
have rendered the fact that he is a murderer, stated in relation to
the comment that he is unsuitable for the position
of Ekurhuleni
Metro Police Chief, a half-truth and thus untrue. The question,
therefore, is whether, in setting out the facts
in support of the
comment, the newspaper and the journalists omitted to mention the
fact that Mr McBride was granted amnesty.
187. The
proper approach in determining whether the facts were accurately
stated is to read the articles as a whole, in particular,
the first
article by Mr Mabuza which was published on 10 September 2003. This
article stated that Mr McBride was: being considered
for the
position of Ekurhuleni Metro Police Chief; he was convicted for the
car bomb explosion in Durban; he served four years
on death row; he
was an MK operative at the time; and he subsequently applied for and
was granted amnesty. There was no suggestion
that this article did
not accurately state the facts.
188. The
statement complained of appeared in the editorial of the following
day, that is, 11 September 2003. It did not mention
amnesty.
However, an article of the same date repeated that Mr McBride was
sentenced to death during the apartheid era for his
bombing of a bar
and that “[t]he Truth and Reconciliation Commission also
granted him amnesty.” The statements complained
of which
appeared in the first editorial must therefore be understood in the
context of the articles of 10 and 11 September 2003,
both of which
refer to amnesty. A person who reads the editorial of 11 September
2003 would have known from the articles of the
previous and the same
day that Mr McBride was granted amnesty by the TRC in respect of the
bombing.
189. In
my view, having regard to the proximity of all three articles, the
fact that Mr McBride was granted amnesty was stated
as part of the
facts upon which the comment was based. In the result, I am
satisfied that the statement that Mr McBride was a
murderer was
accurately stated.
Mr McBride is not contrite
190. The
next article appeared on 18 September 2003 and was titled “Beware
ambush broadcasters operating under false pretences”.
Mr
McBride also relied on this article for his claim, in particular,
the underlined parts. The article read as follows:
“
If
anyone wants my opinion about Robert McBride and forgiveness, here
it is.
Forgiveness is intensely
personal. Each individual makes their own decision. If you don’t
forgive, you harm yourself. That’s
why to forgive is divine.
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.
Boesak wants a pardon for
something he says he didn’t do. That defies logic.
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.” (Emphasis
added.)
191. This
article repeats the theme that Mr McBride is not suitable for the
position of Ekurhuleni Metro Police Chief. It tells
its readers that
Mr McBride is unsuited because of (a) “his track record as a
multiple murderer”; (b) he was “a
suspect in gun
dealing”; and (c) he is “not contrite.” This
article makes it clear that the statements made
about Mr McBride are
“not about forgiveness but rather about suitability” for
the post of Ekurhuleni Metro Police
Chief. This article was
apparently written by Mr Williams to explain why he had declined an
invitation to join a radio debate
on “forgiving people”.
This article formed the basis of Mr McBride’s second claim
based on defamation.
192. I
agree that the statement that Mr McBride is not contrite and “still
thinks he did a great thing as a ‘soldier’,
blowing up a
civilian bar”, has no basis in fact and is therefore untrue.
One need only have regard to the amnesty application
by Mr McBride
as well as his evidence at the TRC hearings to demonstrate the
untruth of the statement that Mr McBride is not
contrite. For this
reason, alone, the defence of fair comment must fail with respect to
the statement that Mr McBride is not
contrite.
193. My
colleague Mogoeng J has gone further and found that there was malice
on the part of the newspaper and the journalists.
The High Court
also found that the statements in question were malicious.
176
In the light of its conclusion on the accuracy of the facts, the
Supreme Court of Appeal did not reach the issue of malice.
177
The question of malice was argued in this Court, and the applicants
contended, with reference to certain authorities,
178
that so long as the opinion expressed is genuinely or honestly held
there can be no malice. In
Naylor
, it was held that when a
statement is made with knowledge of its untruthfulness, in the
absence of any indication to the contrary,
the inference would arise
that the statement was actuated by malice.
179
194.
There is nothing on the record, in this case, which indicates that
the journalist who made the statement in question, Mr
Williams, knew
that the statement he was making was false. His evidence on this
issue does also not shed light on the question
of whether or not he
had knowledge of the falsity of his statement. On the contrary, it
suggests that he made the statement as
a matter of comment rather
than as a matter of fact. In his testimony, Mr Williams said that
while he acknowledged what Mr McBride
said in his amnesty
application, Mr McBride, in his view and in his experience, does not
actually feel contrite. The statement
that Mr McBride is not
contrite appears from Mr Williams’ evidence to have been a
statement made not as a matter of fact,
but as a matter of comment,
with respect to which the facts giving rise to the comment were
never, in the article in question,
disclosed.
195. In
the light of this, it appears that Mr Williams did not consider it
necessary to further investigate what Mr McBride said
in his amnesty
application because he simply did not believe what Mr McBride said.
In other words, Mr Williams did not concern
himself with checking
the statements he made relating to Mr McBride’s contrition
against the public record or provide any
facts at all upon which his
statement regarding contrition was based. This, taken together with
the language and tone in the
articles, which, in some instances,
amounted to a personal attack that appears to have been designed to
stigmatise Mr McBride
for actions taken in the struggle against
apartheid for which he has since received amnesty, comes very close
to justifying an
inference of malice.
180
196. Just
as this Court has recognised the importance of freedom of expression
in a democratic society,
181
it has also recognised the special role that the media plays, and
the obligations incumbent upon it, in facilitating the exchange
of
ideas that is at the core of this freedom. It is fitting, in this
case, to remind
The Citizen
and its journalists of the
cautionary note that this Court gave to the media in
Khumalo
:
“
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
fledgling democracy.
If they vacillate
in the performance of their duties, the constitutional goals will be
imperilled
.”
182
(Emphasis added.)
197.
Nevertheless, I am unable to infer from this that Mr Williams must
have known the untruthfulness of his statement and that
it was
therefore actuated by malice. Nor can I conclude, on the record,
that there is any other evidence of malice. One should
be careful in
a case like this to not readily draw an inference of malice from
facts which are incorrectly stated or stated in
an exaggerated or
vitriolic manner.
183
All of these statements were made in the context of lending support
to the view that Mr McBride was not suited for the post of

Ekurhuleni Metro Police Chief. Indeed, that is what the first
editorial said and what the last editorial emphasised. In the light

of this, I am unable to find that there was malice.
198.
Whether stated as a fact upon which the comment as to Mr McBride’s
suitability for the post of Ekurhuleni Metro Police
Chief was, in
part, based, or whether stated as a comment with respect to which
the facts grounding the comment were never stated,
the defence of
fair comment, with respect to the statement that Mr McBride is not
contrite, must fail.
Mr McBride’s “dubious flirtation with alleged gun
dealers”
199.
Before analysing whether it is protected as fair comment, it is
first necessary to establish the meaning of this statement.
The
context in which it occurs indicates the meaning that the author
wanted to convey to the ordinary reader of
The Citizen
. The
author expresses an opinion that Mr McBride is “blatantly
unsuited” for the position of Ekurhuleni Metro Police
Chief.
He can only be suited in the minds of those who believe in the
“dubious philosophy: set a criminal to catch a criminal.
Make
no mistake that’s what he is.” And there are two reasons
why he is a criminal: first, he committed cold blooded
multiple
murders in Magoo’s Bar; and second, he has a morally suspect
background with alleged gun dealers.
200. A
reasonable reader would have understood that he was involved with
gun dealers in Mozambique and was thus involved in some
criminal
activity. This statement must be understood in the context in which
it occurs. This statement occurs in the first editorial.
This
editorial accused Mr McBride of being a criminal – “set
a criminal to catch a criminal”. “Make no
mistake”,
the article asserts, “that’s what he is”. And in
support of the assertion that Mr McBride is
a criminal, the
editorial advances two factual allegations. The first, dealt with
above, is that the murders he committed as
a freedom fighter place
him in the category of “criminal”. The second is that he
engaged in a “dubious flirtation
with alleged gun dealers in
Mozambique.”
201. In
my view, and given this context, it is difficult to understand the
“dubious flirtation” statement as suggesting
anything
other than that Mr McBride is a criminal, who is involved with
criminals, who are involved in gun running in Mozambique.
That is
how a reasonable reader would understand the statement.
202. The
question is whether the facts relating to Mr McBride’s arrest,
detention and release were accurately stated. The
article of 10
September 2003 stated that Mr McBride was arrested and charged with
gun running in Mozambique. It also stated that
he was part of an
undercover investigation into gun running in Mozambique and that
“[h]e was subsequently released and
sent home.” The
article of 22 September 2003 asserted that “[n]either his
arrest nor subsequent release were fully
explained.” The
articles left the reader with the impression that Mr McBride had a
dubious flirtation with alleged gun
dealers in Mozambique and his
arrest and release had not been fully explained.
203. It
was common cause between the parties, however, that Mr McBride was
released and that his lawyer held a public press conference
at OR
Tambo International Airport, which was covered by the
Mail &
Guardian
, at which he explained that the Supreme Court of
Mozambique quashed the charges. None of the articles that appeared
in
The Citizen
mentioned these facts, in particular, the
explanation that the charges were quashed by the Supreme Court of
Mozambique. Reference
to the quashing of the charges was vital
information as it would have enabled the reader to understand why Mr
McBride was released.
The omission of this information, in my view,
resulted in the facts relating to the arrest and release of Mr
McBride in Mozambique
to be a half-truth. The facts relating to
Mozambique were therefore not accurately stated. The cross-appeal
must accordingly
succeed.
204. For
these reasons, I would uphold the appeal in
relation to the claim for defamation based on the statement that Mr
McBride is a multiple
murderer and criminal, but dismiss it in
relation to the other claims. I would also uphold the cross-appeal.
205. In
assessing damages, I would have regard to the
fact that, in relation to both the statement that Mr McBride was not
contrite and
the statement that he had a “dubious flirtation
with gun dealers” in Mozambique, the newspaper and the
journalists
had every opportunity both to verify the facts and to
state them accurately but they nevertheless failed to do so. For
this reason,
I would award Mr McBride damages in the amount of
R
75 000.
206. In
relation to costs, Mr McBride’s success is
substantial and, in the circumstances, he is entitled to costs,
which must include
those consequent upon the employment of three
counsel. In this case, the applicants were also represented by four
counsel including
two senior counsel. Mr McBride was therefore
entitled to be represented by three counsel.
Khampepe
J concurs in the judgment of Ngcobo CJ.
MOGOENG J:
Introduction
207. I
have had the benefit of reading the judgments of my Colleagues
Ngcobo CJ and Cameron J. I agree with their judgments in
so far as
they conclude that the Citizen is liable for the false assertion
that Mr McBride showed no contrition for the offences
he was
convicted of and subsequently granted amnesty and with Ngcobo CJ’s
findings in relation to Mr McBride’s so-called
“dubious
flirtation with alleged gun dealers in Mozambique.” I,
however, part ways with Ngcobo CJ and Cameron J with
regard to their
conclusion that statements that Mr McBride is a murderer and a
criminal are protected by fair comment and are
not malicious. In my
view these statements are part of a well-orchestrated character
assassination campaign waged by the Citizen
against Mr McBride.
208.
Whether or not the Citizen should be held liable for the balance of
the defamatory statements it made about Mr McBride must
be
determined within the context of, among others, the objective sought
to be achieved through the amnesty process discussed
below.
The purpose of amnesty
209.
Mahomed DP captured the need for the amnesty process identified by
those involved in the negotiations that culminated in
this country’s
democratic political dispensation in these terms:
“
It
was wisely appreciated by those involved in the preceding
negotiations that the task of building such a new democratic order

was a very difficult task because of the previous history and the
deep emotions and indefensible inequities it had generated;
and that
this could not be achieved without a firm and generous commitment to
reconciliation and national unity . . . . It might
be necessary in
crucial areas to close the book on that past.”
184
Leaders across the political divide deeply appreciated the need for
all South Africans to commit to reconciliation and national
unity.
To this end they sounded a clarion call to a firm and generous
commitment, beginning with the amnesty process.
185
210.
Amnesty owes its origin to the epilogue to the interim
Constitution.
186
It follows from the epilogue that our political leaders committed
the nation to the pursuit of a future founded on peaceful
co-existence, a recognition of human rights, national unity,
reconciliation of the people of South Africa and reconstruction of

society. It dawned on them that this dream could only become a
reality if black and white South Africans, who had been at war
with
each other, would embrace “a need for understanding but not
for vengeance, a need for reparation but not for retaliation,
a need
for ubuntu but not for victimisation.”
211. In order to take this painful and yet necessary national
project forward the Promotion of National Unity and Reconciliation

Act
187
(Reconciliation Act), alluded to in the epilogue, was enacted. It
established the Truth and Reconciliation Commission whose primary

purpose was “to promote national unity and reconciliation in a
spirit of understanding which transcends the conflicts and
divisions
of the past . . . .”
188
While it is true that the amnesty process was a vehicle through
which the truth was uncovered and that this truth would, in many

cases, otherwise never have been known,
189
truth-telling was but one of the key instruments through which
objectives of a fundamental nature were to be achieved.
190
Apart from being one of the prerequisites for granting amnesty to
political offenders, the truth was also meant to help the victims
of
gross human rights violations to know what happened to their loved
ones and to set them on a path towards healing. Additionally,
it was
intended to lay a firm foundation for the challenging process of
national unity, reconciliation and reconstruction.
191
212. In
line with these observations, Mahomed DP saw the objective of
amnesty as being to ensure that the country—
“
begins
the long and necessary process of healing the wounds of the past,
transforming anger and grief into a mature understanding
and
creating the emotional and structural climate essential for the
‘reconciliation and reconstruction’ which informs
the
very difficult and sometimes painful objectives of the amnesty
articulated in the epilogue.”
192
A mature
understanding, a commitment to reconciliation and an ever-abiding
national consciousness of the collective responsibility
to
extinguish the raging flames of racial hatred are all necessary to
create a climate for the actualisation of the healing which
is in
turn critical for the attainment of lasting peace, prosperity and
stability of this nation.
213. What
the epilogue seeks to achieve through amnesty is the facilitation of
“reconciliation and reconstruction”
by the creation of
mechanisms and procedures which make it possible for the truth about
our past to be uncovered.
193
Amnesty was dependent upon truth-telling fundamentally for the
purpose of making healing possible and for the advancement of
a core
national imperative of unity, reconciliation and reconstruction.
214.
Du Toit
194
highlights the crucial role that the truth told during the amnesty
process was intended to play in creating the desired future.
195
The mere telling of truth did not amount to national reconciliation
and reconstruction.
196
Truth-telling merely supplied some of the material necessary to put
an end to the strife and hatred that characterised race relations
in
South Africa for centuries. The primary objective of the
Reconciliation Act was thus to use the amnesty process “as
a
stepping stone to reconciliation for the future.”
197
The perpetrators are given—
“
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.”
198
215. Truth-telling during the amnesty process was thus not intended
to lay the foundation for the endless vilification of South
Africans
who grossly violated human rights, either in the furtherance of the
crime of apartheid or the struggle for freedom from
apartheid, in
the name of freedom of expression. Nor was the truth, uncovered
during the amnesty hearings or even during the
trials of those who
committed gross human rights violations, intended to be used to
undermine the pursuit of national unity and
reconciliation.
199
On the contrary, this truth was supposed to be used as the brick and
mortar for laying a firm foundation for enduring peace,
national
unity and reconciliation. Amnesty was, so to speak, designed to help
level the playing field and enable all South Africans
to make a new
beginning.
216.
Bridge-building, national unity and reconciliation are essential to
the destination to which all South Africans should forge
if the
glorious future mapped out in our Constitution and the epilogue to
the interim Constitution were to become a reality.
Added to this is
the special recognition given in the epilogue to the important role
that ubuntu or
botho
could play in healing the wounds we have
inflicted on each other.
217. We
live in an African country which is rapidly being denuded of the
values and moral standards which once characterised and
defined the
very nature of who a substantial majority of its citizens were and
what they stood for.
Botho
or ubuntu is the embodiment of a
set of values and moral principles which informed the peaceful
co-existence of the African people
in this country who espoused
ubuntu based on, among other things, mutual respect.
200
Language was used in moderation and foul language was frowned upon
by the overwhelming majority. A forgiving and generous spirit,
the
readiness to embrace and apply restorative justice, as well as a
courteous interaction with others, were instilled even in
the young
ones in the ordinary course of daily discourse. The unforgiving, the
arrogant and the unduly abusive were described
by the Batswana, and
presumably other African communities, as those who are bereft of
botho
.
218.
Ubuntu gives expression to, among others, a biblical injunction that
one should do unto others as he or she would have them
do unto him
or her.
201
The law, order, generosity, peace and common decency that previously
characterised many communities in South Africa were attributed
to an
unwavering commitment to the philosophy of ubuntu. No wonder the
drafters of our interim Constitution deemed it meet to
cite ubuntu
as one of the ingredients essential to the healing of our country.
Sadly, a new culture has taken root and continues
to cancerously eat
at
botho
.
219.
Bearing this in mind, it appears that the truth told during the
amnesty process was not meant to be used in a manner that
undermines
the fundamental objective of amnesty, which is national
reconciliation and reconstruction. That truth was rather intended
to
be the launching pad for that objective.
202
220.
People are free to express themselves on the gross violation of the
rights of their loved ones without being unduly restrained,
provided
they do so within constitutionally acceptable bounds.
203
What is impermissible is the use of truth revealed to insult,
demonise and run down the dignity of self-confessed human rights

violators. This could never have been the purpose of the
Reconciliation Act read with the epilogue. For it is inimical to
truth-telling
for the purpose of advancing national unity,
reconciliation and reconstruction to be publicly labelling as
criminals and murderers,
those who committed human rights violations
some 17 years prior to the labelling and who were subsequently
granted amnesty. It
ought to make no difference that amnesty had
just been granted and was somewhat topical when the labelling took
place. The age
of the violation, the granting of amnesty, the
political background and underlying purpose of amnesty, coupled with
the absence
of any genuine public interest being advanced by the
branding, should make all the difference.
221. None
of this, however, precludes anybody from freely accessing
information relevant to perpetrators’ convictions and

expressing themselves freely within permissible constitutional
bounds. To suggest otherwise would be to deny South Africans the

exercise and enjoyment of their right to freedom of expression.
222. This
notwithstanding, the right to human dignity must always be allowed
to assume its rightful place even when the right
to freedom of
expression enters the equation. Sufficient room and flexibility has
in any event always been allowed to accommodate
truthful yet
defamatory remarks made in the heat of the moment,
204
in jest
205
and even in circumstances where a somewhat strong language is
essential for the effective communication of the message.
206
223. The
truth does not however draw its force from insults or a highly
inflammatory language. For indeed, freedom of expression
is not so
much in the vitriol as it is in the clear and logical articulation
of one’s viewpoint without trumping the intrinsic
worth of
others. Bearing this in mind, discussions about amnesty ought to
take place with due sensitivity to the national project
that was
triggered by the amnesty process. This leads me to the analysis of
the defamatory statements.
The defamatory statements
224. The
Citizen contends that the articles it published contained comments
on a matter of public interest and that the comments
are not
malicious, but fair. Malice is sought to be discounted on the
further basis that the Citizen was merely expressing an
honestly
held opinion based on the truth.
207
Whether the Citizen merely sought to, and did, exercise its right to
freedom of expression within constitutionally permissible
bounds or
abused this right, falls to be determined with reference to a series
of articles it published.
225. The
first article was written by Mr Mabuza and the second by the South
African Press Association. They were both factual
and balanced.
Subsequent articles were written by Mr Williams and Mr Kenny whilst
the editorials were written by Mr Williams.
The nature of the
comments and the language employed bear highlighting.
226. The
first editorial stated that Mr McBride’s candidacy “is
indicative of the ANC’s attitude to crime.”
Mr McBride
is said to be blatantly unsuited for the post that he was rumoured
to be earmarked for, unless his backers believe
in setting “a
criminal to catch a criminal.” It went on to say:
“
Make
no mistake, that’s what he is. The cold-blooded multiple
murders which he committed . . . put him firmly in that category.

Never mind his dubious flirtation with alleged gun dealers in
Mozambique. Those who recommended him should have their heads read.”
To the
Citizen, Mr McBride is as dangerous a criminal as he was 17 years
before the articles were published. His cold-bloodedness
has not
abated. If anything, it is reinforced by his dubious flirtation with
alleged gun dealers in Mozambique. Any support for
his appointment
to the position of Metro Police Chief would be so outrageous as to
suggest possible mental instability.
227. An
allegation is then made that he is an unrepentant criminal who
thinks he is a hero for blowing up a civilian bar. In order
to
underscore these assertions, the publication likens Mr McBride to Dr
Allan Boesak and Ms Winnie Madikizela-Mandela, who reportedly
did
not ask for forgiveness in respect of the offences of which they
were convicted.
228. The
next article reiterates Mr McBride’s killing of three women,
that he was a suspect in a gun running case some five
years prior to
the publication, and that his arrest and release were never fully
explained.
229. President Mbeki then expressed the view that it would be
fundamentally wrong to deny Mr McBride the possibility to be

appointed to any position simply because of what he did during the
struggle for liberation, for which he apologised and was granted

amnesty. The President also noted that the amnesty process was meant
to set the nation on a path to national reconciliation.
In his
opinion the Citizen appeared to be urging the country to reopen the
wounds of the past that were healing.
208
These remarks triggered amongst others a spirited editorial from the
Citizen in which it poured scorn on the President’s
views.
30. The
next article addressed Mr McBride’s alleged unsuitability for
appointment as a Metro Police Chief, likening him
to Mr Barend
Strydom and Mr Clive Derby-Lewis. The three of them were dubbed the
“most notorious non-governmental killers
of the late apartheid
period” and each was labelled a “wicked coward who
obstructed the road to democracy.”
What Mr McBride did was
described as an “act of human scum.” The vitriolic
nature of the attack is laid bare by the
following comment:
“
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.”
Although
reference is made to the ANC, Mr McBride is also the target of
attack and derision here. Another article, which described
Mr
McBride as “Bomber McBride”, reinforces the conclusion
that this was not just a series of articles intended to
expose an
ill-considered attempt to appoint a person to a position for which
he is “blatantly unsuited”. They are
an outward
manifestation of a well-orchestrated character assassination
mission.
The effect of the false allegations
231. The Citizen’s statements about the kind of person they
believed Mr McBride to be and his alleged unsuitability for

appointment, published in a series of articles and editorials, must
be read and understood as one message and not be dealt with
as
individual statements independent of each other.
209
The comments are premised on the undisputed truth that Mr McBride
killed three women and injured about 69 other people some 17
years
before the publication of the articles.
210
This truth is planted in a thicket of assertions which are either
untrue or half true and whose veracity could have been ascertained

by any person who was interested in finding out the whole truth.
232.
Anyone genuinely driven by a civic duty to prevent the subversion of
metropolitan security, consequent upon the appointment
of a Metro
Police Chief who is disqualified for the job, would have checked the
facts before the articles were published. Surprisingly,
the Citizen
chose not to undertake this simple verification exercise to satisfy
itself whether (i) Mr McBride ever expressed
contrition for what he
did and (ii) the arrest and failure to prosecute Mr McBride for his
alleged association with alleged gun
dealers were fully explained
before, at the time of or after the quashing of charges against Mr
McBride by the Supreme Court
of Mozambique, or at the press
conference at the airport which has since become known as OR Tambo
International, and whether
information in this regard was
available.
211
This conduct lines up with the Citizen’s apparent
determination to depict Mr McBride as being amongst the dregs of
humanity.
And this level of bitterness evinces a desperate effort to
crush Mr McBride for some deliberately withheld reason, somehow
linked
to the bombing, under the guise of an honest attempt to
merely oppose his appointment by reason of his alleged
unsuitability.
233. Freedom of expression is a right to be exercised with due
deference to, among others, the pursuit of national unity and

reconciliation.
212
It cannot be the ground for excusing the Citizen from liability that
it made the defamatory statements in the course of exercising
its
right to freedom of expression, whereas it did so in a manner that
infringes the dignity of Mr McBride and impairs the pursuit
of
national unity and reconciliation.
213
Should
the Citizen’s appeal be upheld?
234. The
Citizen can only escape liability on the same basis it sought to
defend itself all the way from the High Court through
the Supreme
Court of Appeal and to this Court. That basis is fair comment.
236.
Against this defence stands the collective impact of the false
assertions in relation to contrition, allegations of gun running
in
Mozambique, raking up the past which serves no real public interest,
the pursuit of national unity and reconciliation
214
and the vitriolic attacks launched by the Citizen against Mr
McBride.
237. When
the Citizen asserted that Mr McBride is not contrite, it was, in my
view, stating a fact and not merely making a comment.
To support
this false factual allegation it went on to cite Dr Boesak and Ms
Madikizela-Mandela as other people who, like him,
did not show
contrition. Even if this contrition issue were a comment, it would
still not escape a finding that it is malicious.
For if all that Mr
Williams wanted to achieve were purely to prevent the appointment of
Mr McBride owing to the murders he had
committed, he would have
ensured that this serious comment about this lack of contrition is
correct. Instead he went ahead and
published the “comment”
in reckless disregard for its potential falsehood. I infer from Mr
Williams’ evidence
that he essentially shut his mind to the
possibility that this serious comment, with far reaching
implications on the life of
Mr McBride, could be false. This gross
recklessness by a media outlet
215
that ought to know its own responsibilities to the public and to
those it chooses to write about, can only be traceable to a
blind
and malicious desire to savage the dignity of its target with
everything within its reach, including unchecked and false
comments.
Added to
this are the allegations of Mr McBride’s dubious flirtations
with alleged gun dealers. The publications are marred
by falsities
that substantially water down the little truth that is left. More
importantly, these statements coupled with the
vitriol firmly
establish the malice in the publications.
238. The
Citizen could have expressed itself freely on the possible
appointment of Mr McBride without maligning him in the manner
it
did. The bitterness in the editorial comments and the articles
betray the mission to undermine the intrinsic dignity of Mr
McBride
for a reason that runs deeper than the mere objection to his
appointment. He is, according to the Citizen, a cold-blooded

multiple murderer, human scum and a wicked coward who would probably
feel highly honoured if a statue of him standing majestically
over
the mangled remains of the three women he killed, were to be
erected.
239. The
campaign waged by the Citizen in a long chain of articles and
editorial comments vilified Mr McBride and severely undermined
his
reputation and right to dignity. Along the way, the Citizen told
untruths and used inflammatory and unduly abusive language.
It did
so claiming that it merely wanted to inform the public about the
detrimental effect Mr McBride’s appointment would
have on the
security of the Ekurhuleni Metro, but the viciousness and brutality
of the attack demonstrates the contrary. Joubert
JA must have had
this in mind when he said:
“
In my
opinion
Voet’s
criterion
must be accepted as being consistent with the position where a
judicial officer, under the guise of performing his judicial

functions, has been actuated by
personal
spite
,
ill
will
,
improper
motive
,
unlawful
motive
(
ongeoorloofde
oogmerk
of
motief
)
or
ulterior
motive
,
that is to say, by
malice
,
in his publication of the defamatory matter in order to expose the
defamed person to odium, or ill will, and disgrace.”
216
The
Citizen’s statements and comments were, in my view, calculated
to expose Mr McBride to odium, ill will and disgrace
and are
malicious. The malice renders the comments wrongful.
240. I
would have granted damages on the basis that the Citizen was wrong
in the respects set out in this judgment. This being
a minority
judgment, it is unnecessary to determine the amount of the damages.
Conclusion
241.
Black South Africans have been subjected to untold indignities for
centuries. It is partly for this reason that the value
of human
dignity and the right of all to have their dignity respected and
protected features so prominently in our Constitution.
217
This right is just as important as the right to freedom of
expression and should not be relegated to near insignificance at the

appearance of the right to freedom of expression.
242. The
right to free expression must be balanced against the individual’s
right to human dignity.
218
The recognition and protection of human dignity is a foundational
constitutional value under our democratic order.
219
This was re-affirmed in these terms:
“
The
value of dignity in our Constitutional framework cannot . . . be
doubted. The Constitution asserts dignity to contradict our
past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future,
to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels.”
220
(Footnote
omitted.)
243.
Indeed, human dignity must colour the spectacles through which we
view defamatory publications, particularly those which
are
inextricably linked to our painful past. And so should our rich
values, like ubuntu, which are consistent with the Constitution,
our
shameful history of institutionalised human rights violations, our
commitment to make a decisive break with this past as
well as our
pursuit of the noble objectives of national unity and reconciliation
also inform the interpretation and exercise
of the rights to
dignity, freedom of expression, privacy and property in this
country. To this end, we ought to be slow to borrow
from comparable
jurisdictions which do not necessarily share the same history and
experience with us.
221
This ought to be so because very few, if any, of these jurisdictions
have made a firm and generous commitment to national unity
and
reconciliation. In cases of defamation that relate to the amnesty
process sensitivity to this national project is called
for. The law
cannot simply be applied with little regard to the truth and
reconciliation process and ubuntu.
244. Our
constitutional values and our unique and rich history, with all the
challenges in which it is steeped, have so much more
to offer in the
development of our jurisprudence.
222
We need to tap into this treasure.
245. To
sum up I would therefore find for Mr McBride, dismiss the appeal and
uphold the cross-appeal with costs.
For the Applicants: Advocates W Trengove SC, S Symon SC, S Stein and
T Naidoo instructed by Willem de Klerk Attorneys.
For the Respondent: Advocates DI Berger SC, PW Makhambeni, T Manchu
and I de Vos instructed by Mashiane Moodley Monama Inc.
For the Second and Third Amici Curiae: Advocates G Marcus SC, N Lewis
and S Budlender instructed by Webber Wentzel.
For the Fourth and Fifth Amici Curiae: Advocates G Marcus SC and H
Varney
instructed by Webber Wentzel.
For the Minister for Justice and
Constitutional Development: Advocates KD Moroka SC and M Sello
instructed by the State Attorney, Johannesburg.
1
34
of 1995.
2
The
relevant subsections of section 20 are set out in [49] below.
3
Section
16 of the Bill of Rights provides that:
“
(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;
freedom of artistic creativity; and
academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
propaganda
for war;
incitement
of imminent violence; or
advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to cause harm.”
4
The
background is set out in
S v McBride
1988 (4) SA 10
(A), in
which the then Appellate Division of the Supreme Court (per Corbett
CJ, Viljoen, Hefer, Grosskopf and Vivier JJA concurring)
dismissed
Mr McBride’s appeal against the death sentence that the trial
court, by a majority, imposed.
5
The
publishers and distributors of the Citizen, CTP Limited, and two of
its associated companies, Caxton and CTP Publishers and
Printers
Limited, were initially also sued, but the claims against them were
withdrawn at the commencement of the trial by agreement
between the
parties.
6
The
Citizen 1978 (Pty) Ltd and Others v McBride
2010 (4) SA 148
(SCA), per Streicher JA, Ponnan JA, Mhlantla JA and Tshiqi AJA
concurring; Mthiyane JA dissenting (
The Citizen
).
7
See
[43] - [48] below.
8
Section
167(3)(b) of the Constitution provides that this Court “may
decide only constitutional matters, and issues connected
with
decisions on constitutional matters”.
9
See
Minister for Justice and Constitutional Development v Chonco and
Others
[2009] ZACC 25
;
2010 (4) SA 82
(CC) at para 15.
10
Section
10 of the Bill of Rights, headed Human Dignity, provides: “Everyone
has inherent dignity and the right to have their
dignity respected
and protected.”
11
McBride
v The Citizen 1978 (Pty) Ltd and Others
, Case No. 03/15780, 6
February 2008, South Gauteng High Court, Johannesburg, unreported at
paras 11-2.
12
The
Citizen
above n 6 at para 18.
13
Id
at para 19.
14
Id
at para 23.
15
Id
at para 30.
16
Id.
17
Id
at para 33.
18
Id
at para 35.
19
Id
at para 33.
20
Id
at para 41.
21
Id
at para 42.
22
Id
at para 90.
23
Id
at para 91.
24
Id
at para 93.
25
Id
at paras 41 and 49.
26
Id
at para 72.
27
Id
at paras 77-9.
28
Id
at para 77.
29
Id
at para 82.
30
Id
at para 79.
31
Deputy
Chief Justice Dikgang Moseneke,
Establishing Social Consensus on
the Shifting Boundaries between Judicial and Executive Functions of
the State—Lessons from
the Recent Past
, Inaugural
Griffiths and Victoria Mxenge Memorial Lecture, delivered at the
Faculty of Law, Nelson Mandela Metropolitan University,
30 October
2009,
http://www.nmmu.ac.za/documents/lectures/Griffiths_and_Victoria_Mxenge_Inaugural_Lecture_30_October_2009.pdf
,
accessed on 2 November 2010. Deputy Chief Justice Moseneke states
that Mr Mxenge’s—
“
murderers are now known. They
are self confessed. They are Dirk Coetzee, Almond Nofomela, Joe
Mamasela, Brian Ngqulunga and David
Tshikalanga. All were policemen
and agents of the apartheid government’s death squads. In
1996, 15 years later the Amnesty
Committee of the Truth and
Reconciliation Commission granted them amnesty. The record of the
hearing on the death of Griffiths
Mxenge before the Amnesty
Committee contains the confessions of his murderers. The confessions
make harrowing reading. They amount
to a chilling account [of] a
state that had lost its way; that had forsaken the rule of law and
justice in favour of brutality,
terror and murder against its
political adversaries.” (Footnote omitted.)
32
The
Citizen
above n 6 at para 42. The Supreme Court of Appeal here
referred to
Telnikoff v Matusevitch
[1992] UKHL 2
;
[1992] 2 A.C. 343
(HL) at
352E-G, where Lord Keith found that, in determining whether readers
would infer a statement in a letter to be one of
fact or opinion,
the letter had to be considered on its own, and not in conjunction
with the original article, published five
days before, to which it
was written in response. Lord Ackner dissented, holding at 360E-G
that in determining whether words
are comment or fact, the wider
context, such as documents incorporated by reference, may be taken
into account.
33
Section
20(6) provides:
“
The Committee shall forthwith
by proclamation in the
Gazette
make known the full names of
any person to whom amnesty has been granted, together with
sufficient information to identify the
act, omission or offence in
respect of which amnesty has been granted.”
34
[1996]
ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC).
35
Id
at para 8.
36
Id
at para 17, per Mahomed DP on behalf of the majority (Didcott J
wrote a separate judgment concurring in the outcome); echoed
by
Langa CJ in
Du Toit v Minister for Safety and Security and
Another
[2009] ZACC 22
;
2009 (6) SA 128
(CC);
2009 (12) BCLR
1171
(CC) at para 29.
37
AZAPO
above n 34 at paras 16-24 and 31-8.
38
Id
at para 17.
39
Id.
40
Id.
41
Du
Toit
above n 36.
42
Section
36(1)
of the
South African Police Service Act 68 of 1995
provides:
“
A member who is convicted of
an offence and is sentenced to a term of imprisonment without the
option of a fine, shall be deemed
to have been discharged from the
Service with effect from the date following the date of such
sentence: Provided that, if such
term of imprisonment is wholly
suspended, the member concerned shall not be deemed to have been so
discharged.”
43
Du
Toit
above n 36 at para 31.
44
Id
at para 32.
45
Id
at para 44.
46
Id
at para 45.
47
Id.
48
Id
at para 51.
49
Id
at para 52.
50
Id.
51
Id
at para 53.
52
Id
at para 55.
53
See
AZAPO
above n 34 at paras 17-21, 32 and 36;
Du Toit
above n 36 at paras 20-1 and 55.
54
AZAPO
above n 34 at paras 17-21;
Du Toit
above n 36 at paras 20-1
and 28.
55
AZAPO
above n 34
at para 24 (“no single or
uniform international practice in relation to amnesty”) and at
para 35 (“The degree
of oblivion or obliteration [amnesty
confers] must depend on the circumstances.”);
Du Toit
above n 36
at para 21 (though the amnesty
process “may appear to be a device to facilitate forgiveness,
closing the door on the past
and moving on, it is also a pragmatic
venture”) and at para 36 (regarding retrospectivity, “the
effect of the granting
of amnesty does not necessarily, by virtue of
the sweeping language used, extend to all of the consequences of the
conviction
and sentence”).
56
AZAPO
above n 34 at
para 21 (“The
result, at all levels, is a difficult, sensitive, perhaps even
agonising, balancing act between the need for
justice to victims of
past abuse and the need for reconciliation and rapid transition to a
new future”);
Du Toit
above n 36
at
para 30 (“What is important is the delicate, constitutionally
required balance that is implicit in the legislation and
that must
be achieved by its implementation.”).
57
Du
Toit
above n 36 at paras 31-2.
58
Id
at para 30 (“The realisation of a balanced and equitable final
result must lie at the core of a constitutionally appropriate

interpretation” of
section 20(10))
and at para 55 (to
interpret the provision literally would flout the aims of the
statute “by extending too far the already
delicate and
difficult issue of amnesty”).
59
The
Citizen
above n 6 at para 33.
60
Section
20(1) of the Reconciliation Act provides:
“
If the Committee, after
considering an application for amnesty, is satisfied that—
(a) the application complies with the requirements of
this Act;
(b) the act, omission or offence to which the
application relates is 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); and
(c) the applicant has made a full disclosure of all
relevant facts,
it shall grant amnesty in respect of that act, omission
or offence.”
61
Du
Toit
above n 36 at para 20.
62
The
Reconciliation Act required the Commission to complete a report
(
section 43(2))
and the President to
“bring the final report of the Commission to the notice of the
Nation” (section 44)
. Truth and
Reconciliation Commission of South Africa (TRC),
Truth
and Reconciliation Commission of South Africa Report
,
released on 21 March 2003 (TRC report). The complete report is
available at
http://www.justice.gov.za/trc/report/finalreport/Volume%201.pdf
,
accessed on 31 March 2011.
63
Id
TRC Report, Foreword by Chairperson, the Most
Reverend DM Tutu, Archbishop Emeritus, at para 26.
64
Id
at para 27.
65
See
above n 3.
66
Section
39(2) of the Bill of Rights provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
67
Du
Toit
above n 36 at para 29.
68
Id
at para 45.
69
Those
who received amnesty for offences involving dishonesty are for
instance exempt from the effect of s
ection 20(2)
of the Trust Property Control Act 57 of 1988, which provides that a
trustee may at any time be removed from office
if convicted of any
offence of which dishonesty is an element, and of
section
69(8)(b)(iv)
of the
Companies Act 71 of 2008
, which prohibits those
convicted and imprisoned without the option of a fine, or fined
above a stipulated amount, for offences
involving fraud,
misrepresentation or dishonesty from being directors.
70
See
Du Toit
above n 36 at para 45.
71
As
noted in the majority
judgment of the Supreme
Court of Appeal,
above n 6
at para 41.
72
Id
at para 30, per Streicher JA.
73
Id
at para 33, per Streicher JA.
74
Id
at para 91, per Ponnan JA.
75
Id
at para 93, per Ponnan JA.
76
See
Eusebius McKaiser’s comment on the judgment of the Supreme
Court of Appeal in “McBride was convicted – period!”,
Mail & Guardian online
, 2 August 2010,
http://www.mg.co.za/article/2010-08-02-mcbride-was-convicted-period
,
accessed on 17 January 2011.
77
The
Citizen
above n 6 at para 33, per Streicher
JA.
78
Id
at para 93, per Ponnan JA.
79
According
to the
Concise Oxford English Dictionary
(11ed revised with
addenda) (Oxford University Press, New York 2009) 941, “murder”
is “the unlawful premeditated
killing of one person by
another.”
80
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC).
81
Id
at paras 55-6 and 61-7.
82
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
at paras 35-45.
83
Above
n 10.
84
This
Court has held that, in general, constitutional values protect
reputation only if it “is a true reflection” of

character:
Khumalo
above
n 82 at para 36 (“in the main, a person’s interest in
their reputation can only further constitutional values
if that
reputation is a true reflection of their character”) and para
42 (“the applicants are right when they contend
that
individuals can assert no strong constitutional interest in
protecting their reputations against the publication of truthful
but
damaging statements”).
But to this it noted an
important rider, namely that it has long been recognised that,
absent any public interest in the subject
matter, “past
mistakes should not be raked up after a long period of time has
elapsed.” See
Khumalo
at fn 38.
85
Roos
v Stent and Pretoria Printing Works, Ltd.
1909 TS 988
at 998,
per Innes CJ.
86
These
elements of the defence were first set out in
Crawford v Albu
1917 AD 102
at 115-7, per Innes CJ, summarised and applied in
Marais
v Richard
en ’n Ander
1981 (1) SA 1157
(A) at
1167C-G, and endorsed and applied post-constitutionally in
Delta
Motor Corporation (Pty) Ltd v Van der Merwe
2004 (6) SA 185
(SCA) at para 13 and
Hardaker v Phillips
2005 (4) SA 515
(SCA) at para 26.
87
The
defence of “fair comment” was not known in the
Roman-Dutch common law of South Africa. It was imported into it
from
English law in the 19
th
Century on the basis that it was
consistent with Roman Dutch law (in
Roos
above n 85, Innes CJ
said that the doctrine as fully elaborated by the English courts,
conformed with “principles which
are known to and approved by
the Roman-Dutch law”, and that it had “been adopted by
all tribunals in South Africa.”).
The earliest instances of
defendants invoking the defence in South Africa appear to be
Davis
& Sons v Shepstone
(1886) L.R 11
App. Cas. 187 (Privy
Council, on appeal from the Supreme Court of Natal) at 190, and
Ribbink v Marais and Loos
(1892) 4 SAR 236 at 245 (Kotze CJ,
Ameshoff and De Korte JJ concurring). These instances are collated
in
Hardaker
above n 86 at para 26 fn 1.
88
Crawford
above n 86 at 114.
89
Id.
90
Id
at 137, per De Villiers AJA. See in this regard
Johnson v Beckett
and Another
[1991] ZASCA 175
;
1992 (1) SA 762
(A) at 780-1, per Harms AJA.
91
Johnson
above n 90 at 783B, per Corbett CJ. As the Supreme Court of
Canada has held, the court “is not required to assess whether

the comment is a reasonable and proportional response to the stated
or understood facts.”
Simpson v Mair
(2008) 293 DLR
(4th) 513 (SCC) at para 28, per Binnie J on behalf of the Court.
92
Lewis,
Freedom for the
Thought That We Hate – A Biography of the First Amendment
(Basic Books, New York 2007),
chapter 12: “Freedom of Thought” at 183-9. See too the
judgment of O’Regan AJA
(Chomba AJA and Langa AJA concurring)
in
Trustco Group
International Ltd and Others v Shikongo
[2010] NASC 6
; 7 July 2010,
http://www.saflii.org/na/cases/NASC/2010/6.html
,
accessed on 17 November 2010 at para 28.
93
See
Khumalo
above n 82
at paras 22-4.
In
Grant v Torstar Corporation
2009 SCC 61
;
[2009] 3 SCR 640
at paras 47-52. At para 49, the Supreme Court of Canada noted that:
“
This rationale, sometimes
known as the ‘marketplace of ideas’, extends beyond the
political domain to any area of
debate where truth is sought through
the exchange of information and ideas. Information is disseminated
and propositions debated.
In the course of debate, misconceptions
and errors are exposed. What withstands testing emerges as truth.”
94
Crawford
above n 86 at 137, per De Villiers AJA.
95
In
Patterson v Engelenburg and Wallach’s Limited
1917 TPD
350
at 357, De Villiers JP said that the opinion-expresser “need
not be fair, in the sense that he may give an exaggerated idea;
he
may be quite wrong in his opinion, but he must be honest and without
malice.” The same judge said in
Crawford
above n 86 at
137 that the comment “might be extravagant, exaggerated, or
even prejudiced” without forfeiting protection.
96
Innes
CJ in
Crawford
above n 86 at 115 quoted with seeming approval
the judgment of Collins MR in
McQuire v Western Morning News
Company Limited
[1903] 2 KB 100
at 112, in which the English
judge “dispensed altogether with that somewhat elusive
individual, the fair man”, preferring
the test of honesty and
relevancy.
97
Crawford
above n 86 at 117.
98
In
Spiller and Another v Joseph and Others
[2010] UKSC 53
at
para 117, the Supreme Court of the United Kingdom, following a
suggestion by Lord Nicholls in
Reynolds v Times Newspapers Ltd
and Others
[2001] 2 A.C. 127
(HL) at 165, renamed the defence
“honest comment”. The Court of Appeal had previously
suggested that it be renamed
“honest opinion”:
British
Chiropractic Association v Singh
[2010] EWCA Civ 350
paras at
35-6.
99
Marais
v Richard en ’n Ander
above n 86 at 1168C-D (“Vandag
word die grense van onregmatigheid by ons gesoek in die toepassing
as grondnorm van wat die
‘algemene redelikheidsmaatstaf’
genoem kan word . . . . Dit volg dat by die bepaling van wat
‘billike’
kommentaar is, die grondnorm die
regsoortuiging hier te lande moet wees . . . . [Today we seek the
limits of unlawfulness in
the application as founding norm of what
may be dubbed the ‘general criterion of reasonableness’
. . . . It follows
that in determining what is ‘fair’
comment, the fundamental norm must be the local legal convictions]
(My translation.))
On the general criterion of unlawfulness in the
law of defamation, and the inter-relation between
Marais v
Richard
and
Crawford
above n 86, see Burchell
The Law
of Defamation in South Africa
(Juta, Cape Town 1985) at 59-66
(
The Law of Defamation
) and Burchell
Personality Rights
and Freedom of Expression – The Modern Actio Injuriarum
(Juta, Kenwyn 1998) at 282.
100
The
Supreme Court of Canada has recently questioned the propriety of
using “fair-mindedness” in setting out the requirements

of the defence. In
Simpson
above n 91 at para 28, it held
that “the addition of a qualitative standard such as
‘fair-minded’ should be
resisted”:
“‘
Fair-mindedness’
often lies in the eye of the beholder. Political partisans are
constantly astonished at the sheer ‘unfairness’
of
criticisms made by their opponents. Trenchant criticism which
otherwise meets the ‘honest belief’ criterion ought
not
to be actionable because, in the opinion of a court, it crosses some
ill-defined line of ‘fair-mindedness’.”
101
See
Khumalo
above n 82.
102
Id
at para 24. See too
Trustco Group
above n 92 at para 28 and
Brümmer v Minister for Social Development and Others
[2009]
ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC) at para 63,
per Ngcobo J, emphasising the media’s “responsibility to
report accurately.”
103
Crawford
above n 86 at 116. In
Spiller
above n 98 at para 105, the
Supreme Court of the United Kingdom relaxed the requirements for
statement of the fact commented
upon to require only that “the
comment must explicitly or implicitly indicate, at least in general
terms, the facts on
which it is based.”
104
Roos
above n 85, per Innes CJ.
105
Id.
106
Id
at 1010 per Smith J.
107
Id.
108
See
Burchell,
The Law of
Defamation
above n 99 at 223.
109
Crawford
above n 86 at 126, per Solomon JA, and at 137, per De Villiers
AJA.
110
Most
Reverend D M Tutu Archbishop Emeritus commences the Foreword thus:
“
All South Africans know that
our recent history is littered with some horrendous occurrences –
the Sharpeville and Langa
killings, the Soweto uprising, the Church
Street bombing, Magoo’s Bar, the Amanzimtoti Wimpy Bar
bombing, the St James’
Church killings, Boipatong and
Sebokeng.”
Truth
and Reconciliation Commission,
Truth and Reconciliation
Commission of South Africa Report
, (1998) vol 1 ch 1,
http://www.justice.gov.za/trc/report/finalreport/Volume%201.pdf
,
accessed on 27 March 2011.
111
Here
the position seems to me to be different from
Telnikoff
above
n 32, where a majority of the House of Lords found that in
determining whether a defamatory statement is fact, only the

defamatory publication itself, a letter in this case, and not an
article preceding it and to which the letter was written in

response, may be taken into account. The difference in this case is
the public notoriety of the facts relating to Mr McBride’s

deed and his amnesty.
112
In
Bladet Tromso v Norway
[1999] ECHR 29
;
(2000) 29 EHRR 125
, the European Court
of Human Rights (ECHR) held that reporting “should not be
considered solely by reference to the disputed
articles” but
“in the wider context of the newspaper’s coverage”
of the contested issue. In
Bergens Tidende and
Others v Norway
[2000] ECHR 190
;
(2000) 31 EHRR 16
at
para 51 the ECHR held that the publication of a defamatory article
had to be seen “against the background of”
a previous
article some two months earlier, which mentioned the plaintiff
favourably, in reaction to which those with negative
experiences
contacted the newspaper. Most recently, the ECHR in
Tonsberg
Blad AS and Haukom v Norway
(2008) 46
EHHR 40 at para 94 looked at coverage as a whole in considering its
impact.
113
Spiller
above n 98.
114
Id
at para 105.
115
See
[113] – [121] below.
116
Pienaar
and Another v Argus Printing and Publishing Co. Ltd.
1956 (4) SA
310
(W) at 318C.
117
Id
at 318F-G.
118
Nearly
a century ago, in
Crawford
above n 86 at 116, Innes CJ noted
that—
“
the trend of modern decision
is in the direction of extending the operation of the defence of
fair comment where that can be safely
done”.
119
Section
16(2)
of the Bill of Rights provides that the right to freedom of
expression does not extend to—
“
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incitement to
cause harm.”
120
In
Grant
above n 93 at para 47, McLachlin CJ noted that the
guarantee of free expression in the Canadian Charter of Rights and
Freedoms
has three core rationales or purposes – (1)
democratic discourse; (2) truth-finding; and (3) self-fulfilment.
121
See
[67]-[69] above.
122
Johnson
above n 90 at 783B-C, per Corbett CJ; see also
Crawford
above
n 86 at 115, per Innes CJ.
123
Footnote
omitted. Boberg “Defamation South African Style – The
Odyssey of Animus Injuriandi” in Visser (ed),
Essays in
Honour of Ellison Kahn
(Juta, Cape Town 1989) 35-61 at 53.
124
In
Simpson
above n 91 at para 1, the Supreme Court of Canada
stated that malice is “an indirect or improper motive not
connected with
the purpose for which the defence exists”.
125
See
[113] – [121] below.
126
This
litigation therefore makes it unnecessary for us to consider whether
the requirement that the disputed opinion must be honestly
held is
objective or subjective: see
Simpson
above n 91
,
which
held that actual honest subjective belief was not a requirement –
it is enough if the opinion could be honestly held.
In
Lister v
Burke
1945 SR 56 at 63, it was stated that “if a
fair-minded man might upon the facts bona fide hold the opinion
expressed then
the expression of that opinion does not in itself
disclose actual malice”.
127
This
fact makes it unnecessary for this Court to decide whether, if a
view is honestly held, but the commentator is also actuated
by
malice or oblique motive in expressing it, the comment forfeits
protection. In
Tse Wai Chun Paul v Cheng Albert
[2001] EMLR
777
at para 73, the Court of Final Appeal of Hong Kong held, per
Lord Nicholls of Birkenhead NPJ, that a comment falling within the

objective limits of the defence of fair comment can lose its
immunity only by proof that the defendant did not genuinely hold
the
view expressed. Honesty of belief is the touchstone. Actuation by
spite, animosity, intent to injure, intent to arouse controversy
or
other motivation, whatever it may be, even if it is the dominant or
sole motive, does not of itself defeat the defence. However,
proof
of such motivation may be evidence from which lack of genuine belief
in the view expressed may be inferred. The judgment
is
http://www.ipsofactoj.com/international/2000/Part7/int2000(7)-005.htm
,
accessed on 16 November 2010.
128
Past
instances in which South African courts have rejected the defence of
“fair comment” on the ground of malice seem
to involve
deliberate distortion by the speaker of the underlying facts. See
Brill v Madeley.
1937 TPD 106
at 111 (actual malice found
because the speaker “deliberately left out a portion” of
a speech he commented on “in
order to lend colour” to
his own false interpretation; the inference was therefore
“irresistible” that the
comment “was not honestly
made”); see also
Naylor and Another v Jansen; Jansen v
Naylor and Others
2006 (3) SA 546
(SCA) at paras 5 and 13
(defendant’s allegation that the plaintiff was suspended from
his employment “because he
had misappropriated” funds,
which was made knowing it to be untrue “and with the object of
injuring [the plaintiff]
in his reputation” held to amount to
malice). For a comparable approach to the question whether malice
removes the protection
afforded by qualified privilege, see
Vincent
v Long
1988 (3) SA 45
(C) at 50-1 and
Yazbek v Seymour
2001
(3) SA 695
(E) at 703-4.
129
The
Citizen
above n 6 at para 18.
130
See
paras Error: Reference source not found and above.
131
See
the remarks of Sachs J in
Dikoko v Mokhatla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC) at paras 105, 108-112 and
120.
132
The
directions of 7 March 2011 invited argument on the following
question:
“
Should the Court find that
any statement The Citizen published about Mr McBride was actionably
defamatory, would it be appropriate,
in view of the findings of the
High Court and the nature of the submissions before the Supreme
Court of Appeal and this Court,
for the Court to order The Citizen
to publish an apology?”
133
[2011]
ZACC 4
; Case No CCT 45/10, 8 March 2011, as yet unreported.
134
Id
at para 202.
135
Id
at para 197.
136
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 135;
2006 (12) BCLR 1399
(CC) at 1447F-G.
137
Section
16 of the Constitution guarantees the right to freedom of expression
and provides:
“
(1) Everyone has the right to
freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific
research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incitement to
cause harm.”
138
Khumalo
and Other v Holomisa
[2002] ZACC 12
;
2002 (5)
SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 21.
139
[1927] USSC 131
;
274
US 357
(1927) at 375.
140
Section
1(a) provides:
“
1. The Republic of South
Africa is one, sovereign, democratic state founded on the following
values:
Human dignity, the achievement of equality and the
advancement of human rights and freedoms.”
Human
dignity is also protected by section 10, which provides: “Everyone
has inherent dignity and the right to have their
dignity respected
and protected.”
141
See
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission
for Gender Equality,
as amicus curiae)
;
Shibi v
Sithole and Others
;
South African Human Rights Commission and
Another v President of the Republic of South Africa and Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) at para
61 (noting that apartheid-era law was informed by “notions of
separation and exclusion of Africans”
and comprised “part
of a comprehensive exclusionary system of administration imposed on
Africans” that was designed
“to perfect a system of
racial division and oppression”). As this Court noted in
Bhe
(at fn 2), we use the term “African” to describe members
of the indigenous race in South Africa; its use should not
be
construed as conferring legal or constitutional validity for its
exclusive use to describe one race group, nor is it intended
to
exclude persons of other race groups who are entitled to or describe
themselves as “Africans”.
142
1934
AD 167
at 189-91 (per Gardiner AJA, dissenting).
143
This
perception of inferiority was noted by Lord de Villiers CJ in
Moller
v Keimoes School Committee and Another
1911 AD 635
, where he
wrote (at 643):
“
As a matter of public history
we know that the first civilized legislators in South Africa came
from Holland and regarded the
aboriginal natives of the country as
belonging to an inferior race, whom the Dutch, as Europeans, were
entitled to rule over,
and whom they refused to admit to social or
political equality. We know also that, while slavery existed, the
slaves were blacks
and that their descendents, who form a large
proportion of the coloured races of South Africa, were never
admitted to social
equality with the so-called whites.”
144
See
Pitout v Rosenstein
1930 OPD 112
at 117 (holding that it was
defamatory to call a white man a “Hottentot” – the
derogatory slang term then used
to refer to persons of Khoisan
origin).
145
See
above n 5.
146
Dawood
and Another v Minister of Home Affairs and Others
;
Shalabi
and Another v Minister of Home Affairs and Others
;
Thomas and
Another v Minister of Affairs and Others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 35.
147
Id.
See also
National Coalition for Gay and
Lesbian Equality and Another v Minister of Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12)
BCLR 1517
(CC) (
National Coalition
)
at para 31; and
President of the
Republic of South Africa and Another v Hugo
[1997]
ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41.
148
Above
n 3
at para 27.
149
In
some instances, rights in the Bill of Rights make specific reference
to human dignity. See for example section 35(2)(e) of
the
Constitution, which provides that “conditions of detention
must be consistent with human dignity.” See also
National
Coalition
above n 12 at para 30 (emphasising that “the
rights of equality and dignity are closely related, as are the
rights of dignity
and privacy”); and
Government of the
Republic of South Africa and Others v Grootboom and Others
[2000]
ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 23,
where this Court acknowledged the role of human dignity in the
context of socio-economic rights:
“
Our Constitution entrenches
both civil and political rights and social and economic rights. All
the rights in our Bill of Rights
are inter-related and mutually
supporting. There can be no doubt that human dignity, freedom and
equality, the foundational values
of our society, are denied those
who have no food, clothing or shelter.”
150
See
South African Broadcasting Corp
Ltd v
National Director of Public Prosecutions and Others
[2006]
ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at paras 55
(per Langa CJ), 91 (per Moseneke DCJ) and 125 (per Mokgoro J). See
also
S v Mamabolo (E TV and Others,
intervening)
[2001] ZACC 17
;
2001 (3)
SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41.
151
Mamabolo
above n 15
at para 41.
152
Id.
153
Id.
154
Khumalo
a
bove n 3
at para 26.
155
Argus
Printing and Publishing Co Ltd and Others v Esselen’s Estate
1994 (2) SA 1
(A) (
Argus Printing and Publishing
).
156
Id
at 25B-E.
157
See
Crawford v Albu
1917 AD 102
at 114-5 and
Johnson v Beckett
and Another
[1991] ZASCA 175
;
1992 (1) SA 762
(A) at
778I-779B.
158
Crawford
above n 22 at 114-5.
159
Id
at 115 (per Innes CJ), 133 (per Solomon JA) and 137 (per De Villiers
AJA).
160
Id
at 117.
161
Id.
162
Mamabolo
a
bove n 15 at para 41.
163
See
[19] above.
164
The
Citizen 1978 (Pty) Ltd and Others v McBride
2010
(4) SA 148
(SCA) (
The Citizen
)
at para 33.
165
34
of 1995.
166
Preamble
of the Reconciliation Act.
167
Interim
Constitution Act 200 of 1993.
168
Azanian
Peoples Organisation (
AZAPO) and Others v
President of the Republic of South Africa and Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8)
BCLR 1015
(CC).
169
Id
at para 19C-D.
170
Section
22(1) of
Schedule 6 of the Constitution, which
governs transitional arrangements provides:
“
Notwithstanding the other
provisions of the new Constitution and despite the repeal of the
previous Constitution, all the provisions
relating to amnesty
contained in the previous Constitution under the heading ‘National
Unity and Reconciliation’
are deemed to be part of the new
Constitution for the purposes of the Promotion of National Unity and
Reconciliation Act, 1995
(Act 34 of 1995), as amended, including for
the purposes of its validity.”
171
Argus
Printing and Publishing
above n 20
at
25C.
172
Id
at 25C-E
.
173
See
above n 35.
174
See
[166] – [167] above.
175
The
article is excerpted at [190] below.
176
McBride
v The Citizen 1978 (Pty) Ltd and Others
,
Case No 03/15780, Witwatersrand Local Division, 6 February 2008,
unreported.
177
See
The Citizen
above
n 29.
178
Yazbek
v Seymour
2000 (2) SA 569
(E);
Vincent v Long
1988 (3) SA
45
(C); and
Naylor and Another v Jansen
;
Jansen v Naylor
and Others
2006 (3) SA 546 (SCA).
179
Naylor
above n 43 at para 11 (analysing malice in the context of qualified
privilege).
180
See
Vincent
above n 43 at 50-1 (holding that malice may be
inferred, in the context of qualified privilege, where the defendant
acted with
a reckless disregard for the truth).
181
See
[141] above.
182
Above
n 3 at para 24.
183
See
Vincent
abovc n 43 at 50.
184
Azanian
Peoples Organisation (
AZAPO) and Others v
President of the Republic of South Africa and
Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8)
BCLR 1015
(CC) (
AZAPO
)
at para 2.
185
Addressing
this issue in respect of a related but somewhat different process,
Ngcobo CJ said, in
Albutt v Centre for the
Study of Violence and Reconciliation, and Others
[2010]
ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) (
Albutt
)
at paras 53-4
:
“
The objectives that the
special dispensation sought to achieve were national unity and
national reconciliation. These objectives
were to be achieved
through the application of the ‘principles and values which
underpin the Constitution’, including
the ‘principles,
criteria and spirit that inspired and underpinned the process of the
Truth and Reconciliation Commission,
especially as they relate to
the amnesty process’. But what are the principles, criteria
and spirit that inspired and underpinned
the amnesty process?
These emerge from the fundamental philosophy of our
negotiated transition to a new democratic order. It was recognised
early on,
during the negotiation process, that the task of building
a new democratic society would be very difficult because of our
history,
and that this could not be achieved without a firm and
generous commitment to reconciliation and national unity.”
(Footnote
omitted.)
186
Act
200 of 1993.
The epilogue captures the vision of our
Constitution, highlights the essence of the amnesty process, and
specifies who would qualify
for amnesty as follows:
“
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 . . . 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 . . .
shall adopt a law . . . providing for the
mechanisms . . . through which such amnesty shall be dealt
with . . . .”
187
34
of 1995.
188
Section
3(1) of the Reconciliation Act
. See also
AZAPO
above n 1 at para 4.
189
See
Albutt
above
n 2 at para 56.
190
See
AZAPO
above
n 1
at
para 17
and
Du Toit v Minister for Safety and
Security and Another
[2009] ZACC 22
;
2009 (6) SA 128
(CC);
2009 (12) BCLR 1171
(CC) (
Du
Toit
),
where
this Court held at para 20:
“
The amnesty process was an
important mechanism that allowed those who otherwise would have had
to deal with their convictions
or secret guilt to come clean and be
allowed to start their lives anew. The process was a necessary tool
in a larger scheme of
things.”
191
See
Albutt
above
n 2 at para 59:
“
The participation of victims
is not only crucial to establishing the truth of what happened, but
is also crucial to the twin objectives
of nation-building and
national reconciliation. In this regard, the TRC makes the following
comment in its report: ‘In
some cases . . . the Commission
assisted in laying the foundation for reconciliation. Although truth
does not necessarily lead
to healing, it is often a first step
towards reconciliation.’” (Footnote omitted.)
192
AZAPO
above n 1 at
para
17.
193
Id
at
para 36.
194
Above
n 7.
195
Section
20(10) of the Reconciliation Act, which expunges the offender’s
criminal record upon the granting of amnesty, was
not enacted to
provide people convicted of gross human rights violations with a
remedy. Just as the termination of Mr Du Toit’s
employment, by
reason of his conviction, could not be undone by the subsequent
granting of amnesty, Mr McBride could not, for
example, sue the
state for malicious prosecution and unlawful detention on the basis
that he has since been granted amnesty.
This
is so because at the time when Mr Du Toit’s employment was
terminated and Mr McBride was incarcerated and prosecuted,
these
were the permissible and legal consequences of their actions. The
subsequent granting of amnesty could not nullify the
previous lawful
consequences of their illegal activities. I hold the view that it is
inimical to nation-building, reconciliation
and reconstruction to
label human rights violators across the political divide who were
granted amnesty.
196
See
Albutt
above
n 2 at para 59.
197
Du
Toit
above n 7 at para 55.
See
also
Albutt
above
n 2 at para 59.
198
Du
Toit
above n 7 at para 56.
199
See
Islamic Unity Convention v Independent Broadcasting Authority and
Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) (
Islamic Unity
) at paras 29-30.
200
In
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC), Mokgoro J defined ubuntu at para 308 as follows:
“
Generally, ubuntu translates
as ‘humaneness’. In its most fundamental sense it
translates as personhood and ‘morality’.
Metaphorically,
it expresses itself in
umuntu
ngumuntu ngabantu
,
describing the significance of group solidarity on survival issues
so central to the survival of communities. While it envelops
the key
values of group solidarity, compassion, respect, human dignity,
conformity to basic norms and collective unity, in its
fundamental
sense it denotes humanity and morality.”
201
Matthew
7:12 (New International Version).
202
See
generally
AZAPO
above
n 1 at para 36.
203
In
relation to amnesty matters, the constitutionally acceptable bounds
would be the right to dignity (section 10 of the Constitution),
the
pursuit of national unity and reconciliation (See
Islamic Unity
above n 16) and section 16(2) of the Constitution.
204
See
Bester v Calitz
1982
(3) SA 864
(O) at 881E-G.
205
See
Le Roux and Others v Dey
2010 (4) SA 210
(SCA) at paras 9-10;
Peck
v Katz
1957 (2) SA 567
(T) at
572H-573A;
Glass v Perl
1928
TPD 264
at 267; and
Masch v Leask
1916 TPD 114
at 116.
206
See
Pienaar and Another v. Argus Printing
and Publishing Co. Ltd.
1956 (4) SA
310
(W) at 318C-D;
Young v. Kemsley and
Others
1940 AD 258
at 278; and
Rubel
v Katzenellenbogen
1915 CPD 627
at
635.
207
It
is trite that the defence of fair comment is negated by malicious
comments. See
Johnson v
Beckett
and Another
[1991] ZASCA 175
;
1992
(1) SA 762
(A) at 783B;
Marais v
Richard
en ´n Ander
1981
(1) SA 1157
(A) at 1167E and 1170B-C;
Moolman
v. Cull
1939 AD 213
at 224;
Waring
v. Mervis and Others.
1969 (4) SA 542
(W) at 545H;
Brill v. Madeley.
1937 TPD 106
at 111; and
Coetzee
v Union Periodicals Limited and Others
1931
WLD 37
at 43-4.
208
Mbeki
“We will not abandon reconciliation”
ANC
Today
Vol.
3 No. 41 (17 October 2003),
http://www.anc.org.za/docs/anctoday/2003/at41.htm
,
accessed on 25 February 2011.
209
See
Tonsbergs Blad AS v Norway
(2008) 46 E.H.R.R. 40
at para 94;
Bergens Tidende and Others v Norway
[2000] ECHR 190
;
(2001) 31 E.H.R.R. 16
at
para 51; and
Bladet Tromso v Norway
[1999] ECHR 29
;
(2000) 29 E.H.R.R. 125
at
para 63.
210
See
Khumalo and
Others
v
Holomisa
[2002] ZACC 12
;
2002 (5) SA
401
(CC);
2002 (8) BCLR 771
(CC) (
Khumalo
)
which held at fn 38:
“
However, it has long been
recognised that past mistakes should not be raked up after a long
period of time has elapsed. See
Graham
v Ker
(1892) 9 SC
185.
”
211
Even
if Mr Williams was desk-bound and had no authority to send a
journalist to the press conference as he says, nothing forbade
him
from getting that information after the press conference especially
prior to the publication, if he was interested.
212
See
Islamic Unity
above n 1616, where it held at paras 29-30:
“
The pluralism and
broadmindedness that is central to an open and democratic society
can, however, be undermined by speech which
seriously threatens
democratic pluralism itself. Section 1 of the Constitution declares
that South Africa is founded on the values
of ‘human dignity,
the achievement of equality and the advancement of human rights and
freedoms’. Thus, open and
democratic societies permit
reasonable proscription of activities and expressions that pose a
real and substantial threat to
such values and to the constitutional
order itself. Many societies also accept limits on free speech in
order to protect the
fairness of trials. Speech of an inflammatory
or unduly abusive kind may be restricted so as to guarantee free and
fair elections
in a tranquil atmosphere.
There is thus recognition of the potential that
expression has to impair the exercise and enjoyment of other
important rights,
such as the right to dignity, as well as other
State interests, such as the pursuit of national unity and
reconciliation
. The right is accordingly not absolute; it is,
like other rights, subject to limitation under section 36(1) of the
Constitution.
Determining its parameters in any given case is
therefore important, particularly where its exercise might intersect
with other
interests. Thus in
Mamabolo
the following was said
in the context of the hierarchical relationship between the rights
to dignity and freedom of expression:
‘
With us the right to freedom
of expression cannot be said automatically to trump the right to
human dignity. The right to dignity
is at least as worthy of
protection as the right to freedom of expression. How these two
rights are to be balanced, in principle
and in any particular set of
circumstances, is not a question that can or should be addressed
here. What is clear though and
must be stated, is that freedom of
expression does not enjoy superior status in our law.’”
(Emphasis added.) (Footnotes
omitted.)
213
Id.
214
Id.
215
See
section 4.3 of the South African Press Code on “Comment”
which reads as follows: “Comment by the press shall
be an
honest expression of opinion, without malice or dishonest motives,
and shall take fair account of all available facts which
are
material to the matter commented upon.”
See
also
Khumalo
above
n 27 which had this to say about the media at para 24:
“
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
fledgling democracy. If they vacillate in the performance of their
duties, the constitutional
goals will be imperilled.”
216
May
v Udwin
1981 (1) SA 1
(A) at 19A-B.
217
See
section 1 of the Constitution which reads:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and the rule of law.
Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.”
Further
see section 10 of the Constitution which reads “Everyone has
inherent dignity and the right to have their dignity
respected and
protected.”
218
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41.
See
Khumalo
above
n 27 which held at para 25:
“
[A]lthough freedom of
expression is fundamental to our democratic society, it is not a
paramount value. It must be construed in
the context of the other
values enshrined in our Constitution. In particular, the values of
human dignity, freedom and equality.”
(Footnote omitted.)
See
also
Independent Newspapers Holdings Ltd and Others v Suliman
2005 (7) BCLR 641
(SCA), where the Supreme Court of Appeal held
at para 44, in relation to public benefit or interest, that—
“
there is obviously a
potential clash between constitutionally entrenched rights: the
rights to dignity and privacy on the one
hand and, on the other, the
right of freedom of the press, of expression, and of receiving or
imparting information. None of
these rights should be regarded as
permanently trumping the others in the sense that there is a
preordained and never shifting
order of priority to be assigned to
each of them. The weight to be assigned to each of them in a given
situation will vary according
to the circumstances attending the
situation.”
219
Khumalo
above n 27
at para 26. See also the
preamble to the Constitution.
220
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another
v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA
936
(CC);
2000 (8) BCLR 837
(CC) at para 35.
221
See
for example cases in the USA, such as
The New York Times Company
v L. B. Sullivan. et al.
[1964] USSC 41
;
376 U.S 254
(1964) at 279-80 and
Snyder
v Phelps et al.
562 U.S. - (2011) and other American authorities
on freedom of expression in general, which leave very little of the
right to
human dignity. We should only borrow what we do not have.
Our first port of call should be the interpretation and development
of our Constitution and our law in general based on our unique
history, experience and conditions such as those outlined in this

paragraph.
222
This
is said mindful of the provisions of section 39 of the Constitution.