Narratives of past and present, freedom of expression and recognition—justice Ngcobo’s Judgment in Citizen 187 (Pty) Ltd v McBride
Author | Meryl Du Plessis |
DOI | 10.25159/2522-6800/3568 |
Published date | 01 August 2017 |
Date | 01 August 2017 |
Pages | 1-18 |
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https://doi.org/10.25159/2522-6800/3568
ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)
© Unisa Press 2017
Southern African Public Law
https://upjournals.co.za/index.php/SAPL/index
Volume 32 | Number 1 and 2 | 2017 | pp.1–18
ARTICLE
Narratives of Past and Present, Freedom of Expression
and Recognition—Justice Ngcobo’s Judgment in Citizen
187 (Pty) Ltd v McBride
Meryl du Plessis
University of the Witwatersrand
Email: Meryl.duplessis@wits.ac.za
ABSTRACT
This contribution examines the balance to be struck between freedom of expression, on
the one hand, and dignity, on the other. It does so through the lens of narratives of South
Africa’s past and present in Citizen 187 (Pty) Ltd v McBride and a consideration of how
narratives shape our construction of reality. It is argued that the newspaper narratives about
Mr McBride’s planting and detonation of a bomb in 1986 contain various omissions and half-
truths, which has an adverse impact on the media’s contribution to post-apartheid South
Africa. In particular, such media coverage minimises Black persons’ realities in the past
and present, which is an infringement of their dignity. However, the law of defamation, it
is argued, is not suited optimally to addressing the shortcomings in macro-narratives of
South African history advanced by the media. The use of the law of defamation for that
purpose may have the eect of stiing, unduly, conversations that are integral to national
reconciliation. Alternative mechanisms through which to hold newspapers accountable may
include complaints addressed to the Press Council, consumer activism and the creation of a
plurality of voices within media spaces, through both media ownership and the promotion of
ideological diversity. Ngcobo CJ’s judgment is therefore preferred, as it protects the media’s
freedom of expression while also emphasising the importance of the dignity of those who
become media subjects.
Keywords: defamation; fair comment; South African history; reconciliation; dignity; freedom of
expression
Introduction
Stories abound within the law. What happened to whom, how, when and why is the
foundation of courts’ decisions on the legal consequences of those happenings. As
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Du Plessis Narratives of Past and Present, Freedom of Expression and Recognition
Delgado points out, we develop and pass on stories to construct our social reality, to
impose order on our experiences and, conversely, for our experiences to impose order
on us.1
Stories, or narratives, are not only about what is, but are codes in which we bind together
shared understandings of what ought to be as well as what might be.2 In law, in particular,
the tension between reality and illusion and aspiration and prescription is mediated by
norms that are partly established and certainly disseminated through narratives.3 Those
narratives underpin legal prescription, are found in written and oral evidence and are
contained in judgments that seek to justify judicial ocers’ interpretation of factual
matrices and what the law requires in specic instances. When we view narratives as
codes we use to create and navigate our normative worlds, it becomes all the more
important that we analyse our narratives in order to examine our social norms more
closely.
In Citizen 187 (Pty) Ltd v McBride,4 multiple narratives are discernible. The case dealt
with a defamation claim that McBride instituted after The Citizen newspaper published
certain articles and editorials impugning his tness to hold the oce of Chief of Police
in one of South Africa’s largest metropolitan municipalities, Ekurhuleni.5 The authors
of these pieces opposed his candidacy because they stated that he was a criminal who
had murdered innocent civilians during the anti-apartheid struggle and that he had had
covert irtations with weapons dealers in Mozambique.6
Because of its subject-matter, narratives are more obviously implicated in this case. The
narratives articulated by the journalists relate to Mr McBride’s detonation of a bomb
that had killed three people and injured sixty-nine others7 as well as his subsequent
political activities after the advent of democracy. The judges in the case created meta-
narratives about the stories told in the form of those articles and editorials through their
interpretations of the stories and their reasoning on how ‘reasonable’ newspaper readers
would interpret what was written. Thirdly, the judges created narratives to justify their
decisions on the merits of the case.
1 Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1989) 87
Michigan LR 2415.
2 Robert Cover, ‘Nomos and Narrative’ in Martha Minow, Michael Ryan and Austin Sarat (eds),
Narrative, Violence and the Law: The Essays of Robert Cover (Michigan University Press 1993)
101–102.
3 ibid 102. Cover writes: ‘Narratives are models through which we study and experience transformations
that result when a given simplied state of aairs is made to pass through the force eld of a similarly
simplied set of norms.’
4 2011 (4) SA 191 (CC).
5 ibid paras 3 and 4.
6 ibid para 4. More details on the content of the editorials and articles at issue are found in paras 8–17
of the judgment.
7 For the facts around the incident, see S v McBride 1988 (4) SA 10 (A), the then Appellate Division’s
judgment that sets out its reasons for dismissing Mr McBride’s appeal against his three death sentences.
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