Like Pontius Pilate of old, the Constitutional Court washed its hands of my human dignity : a critical review of The Citizen 1978 (Pty) Ltd v McBride 2011 4 SA 191 (CC) : recent case law

• Pages: 489-506
• Date: 01 January 2011
• Author: M.C. Buthelezi
• DOI: 10.10520/EJC135319
• Published date: 01 January 2011

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Like Pontius Pilate of old, the Constitutional

Court washed its hands of my human dignity: A

critical review of

The Citizen 1978 (Pty) Ltd v

McBride

2011 4 SA 191 (CC)

1 Introduction

On 8 April 2011, the Constitutional Court, through Came ron J, decided

by a majority of five to three, that publications made by

The Citizen

newspaper, which referred to Robert McBride as a murderer, amongst

other things – despite successfully applying for amnesty from the Truth

and Reconciliation Commission (TRC) – were protected by fair comment.

This was a successful appeal by

The Citizen,

an erstwhile editor and two

journalists against a controversial judgment of the Supreme Court of

Appeal, which found that reference to McBride as a murderer had been

rendered false by virtue of the amnesty granted to him by the TRC (

The

Citizen 1978 (Pty) Ltd v McBride

2010 4 SA 148 (SCA) par 33). This meant

that any such reference to him could no longer be justified either by the

defence of true publication or by fair comment, as the basis for the

defence had since been rendered false. The events that gave rise to this

appeal are well documented and have become trite. To summarise,

McBride, acting as an operative of the African National Congress (ANC),

carried out a car bomb attack outside the Magoo’s Bar and Why Not

Restaurant on the Durban beachfront on 1986-06-14 (

The Citizen 1978

(Pty) Ltd v McBride

2011 4 SA 191 (CC) par 3). Sixty-nine people were

injured and three young women were killed in the explosion. McBride

was subsequently convicted and sentenced to death for multiple

murders. However he was reprieved and released in 1991 and 1992,

respectively. In 1997 McBride applied for amnesty in terms of the

Promotion of National Unity and Reconciliation Act 34 of 1995, (TRC

Act), which was granted in 2001. Sometime in 2003 reports surfaced in

The Citizen

newspaper that McBride was a front runner to take a post as

490

2011 De Jure

a police chief of one of South Africa’s largest municipalities, the

Ekurhuleni Metro. These rumours were subsequently confirmed when

McBride was appointed into that position, despite initial denials by the

government.

The appeal before the Constitutional Court centred around three

statements which had appeared in a series of articles published by

The

Citizen

over a period of two months (par 137). Central to the appeal was

the statement that McBride was “a murderer” and “a criminal”. Here, the

court had to determine if it was fair to still refer to a person who had been

convicted of murder during the struggle against apartheid as a “criminal”

and a “murderer”, despite him successfully applying for amnesty. The

first statement raised two issues: (1) whether McBride’s amnesty was

expressly stated; and most controversially, (2) whether

The Citizen

’s

comment could be said to be based on true facts, in view of the amnesty

granted to McBride (par 161). In essence, this was about the effect of

amnesty on the law of defamation (see par 2), that is, a determination of

the role the amnesty process plays in achieving the balance between

freedom of expression on one hand, and the value of human dignity, on

the other. The second issue centred on the assertion that McBride was

not contrite, but was instead proud of having killed civilians during the

struggle against apartheid. The dispute further revolved around the

statement that McBride had “dubious flirtations” with alleged gun dealers

in Mozambique. In all these the appellants relied on fair comment as a

defence to escape liability (parr 137, 154, 234). McBride also entered a

cross-appeal against the reduction of his damages by the SCA, after

finding that reference to his alleged involvement with gun dealers in

Mozambique was found to be not defamatory.

In the Constitutional Court, the majority (with Ngcobo CJ, Khampepe

& Mogoeng JJ dissenting) held that the first and third statements were

protected as fair comment. Ngcobo CJ (with Khampepe J concurring)

agreed with the majority decision that the first statement was protected

by the defence of fair comment, albeit for different reasons (par 138).

The Chief Justice, however, concurred with Mogoeng J that the third

statement was not protected by law (parr 138, 237). However, the court

was unanimous that the second statement could not be protected by the

defence of fair comment (parr 121, 138), with Mogoeng J going as far as

finding the statement to be malicious (par 236).

The Citizen

had raised

the defence of fair comment in relation to each of these statements. This

case note is a critical review of the Constitutional Court judgment. In

particular, it takes issue with the majority’s interpretation of section

20(10) of the TRC Act, in relation to the defence of fair comment and the

constitutional value of human dignity. At the same time, the note

attempts to show why Mogoeng J’s opinion is legally sound and

preferable.