The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae)

• Jurisdiction: South Africa
• Citation: 2011 (4) SA 191 (CC)

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae)
2011 (4) SA 191 (CC)

2011 (4) SA p191

Citation	2011 (4) SA 191 (CC)
Case No	CCT 23/10
Court	Constitutional Court
Judge	Ngcobo CJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J and Yacoob J
Heard	September 30, 2010
Judgment	April 8, 2010
Counsel	W Trengove SC (with S Symon SC, S Stein and T Naidoo) for the applicants.; DI Berger SC (with PW Makhambeni, T Manchu and I de Vos) for the respondent.; G Marcus SC (with N Lewis and S Budlender) for the second and third amici curiae, and (with H Varney) for the fourth and fifth amici curiae.; KD Moroka SC (with M Sello) for the Minister for Justice and Constitutional Development.

Flynote : Sleutelwoorde B

Defamation — What constitutes — Newspaper describing individual who had C been convicted of murder and later amnestied as a 'murderer' — Reconciliation Act addressing legal consequences of conviction only, and not having linguistic effect, or governing discourse arising from conviction — Act not rendering it untrue that respondent committed murder, and not prohibiting frank public discussion of his act as 'murder' — Promotion of National Unity and Reconciliation Act 34 of 1995, s 20(10). D

Defamation — Defences — Fair comment — Requirements — That comment be 'fair' — Requirement is that defendant hold opinion honestly and without malice — Not required that comment itself be fair.

Defamation — Defences — Fair comment — Source of — Source of protection of comment is right to freedom of expression — Constitution, s 16.

Defamation — Defences — Fair comment — Permissible ambit of public discussion — Boundaries to such discussion established by constitutional protections of expression, dignity and reputation.

Defamation — Defences — Fair comment — Name of defence — 'Protected comment' would be clearer, and helpful in understanding the law.

Defamation — Defences — Fair comment — Requirements — That facts be truly stated — Requirement that it be clear to reader what facts underlying comment were — Not required that facts be set out in full in all cases — Whether newspaper defendant satisfying requirement to be assessed by considering newspaper's coverage as whole.

Headnote : Kopnota

The Promotion of National Unity and Reconciliation Act 34 of 1995 (the D Reconciliation Act) provides in s 20(10) that:

'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 E 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 . . . .'

Section 20(1) 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 F 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 G consequences of conviction only, s 20(10) does not presume to have linguistic effect, or to govern the discourse that arises from the conviction. (Paragraphs [72] – [73] at 215H – 216B.)

The Reconciliation Act did not render it untrue that the respondent committed murder. And it did not prohibit frank public discussion of his act as 'murder'. (Paragraph [96] at 223C.) H

The court also considered the defence to an action for defamation of fair comment. To establish the defence a defendant had to show: (i) that the statements in question were comment or opinion; (ii) that they were 'fair'; (iii) that the facts the comments were based on were true; and (iv) that the comments related to a matter of public interest. (Paragraph [80] at 217E-G.)

As to the requirement that the comment be 'fair', this meant that the defendant had to hold the opinion honestly and without malice. It did not mean that the comment itself had to be fair or just-indeed it could be just the opposite. (Paragraphs [81], [83], [103] and fns 126-127 at 218A-C, 219B-C, 225B-E and 226F-J.)

With regard to the requirement that the facts be truly stated, this meant it had to be clear to a reader what the facts underlying the comment were. This did not mean the facts necessarily had to be set out in full: where the facts were so well known as to be notorious, they did not need to be recited. In the case of a newspaper defendant, whether this requirement had been met had to be assessed by considering the newspaper's coverage as a whole. (Paragraphs [88]-[89] and [95]-[96] at 221C-G and 223A-D.)

The court also considered the source of the protection of comment on matters of public interest. This was the norms and values of the Constitution, especially the right to freedom of expression in s 16. These sometimes required that public comments be protected, even where they were unreasonable or prejudiced, because it was valuable for divergent views to be aired and subjected to scrutiny and debate. The boundaries of the permissible ambit of public discussion were set by the constitutional protection of freedom of expression, balanced against individuals' dignity and reputation. (Paragraphs [82]-[86] and [100] at 218C-221A and 224B-D.)

For these reasons, it might be clearer, and helpful in understanding the law, if the defence were known as 'protected comment'. (Paragraphs [82]-[84] at 218C-220B.)

Cases Considered

Annotations:

Reported cases

Southern Africa

Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391): applied I

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): referred to

Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015): considered

Bester v Calitz 1982 (3) SA 864 (O): referred to J

2011 (4) SA p192

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 2005 (1) SA 580 (CC) (2005 (1) BCLR 1): referred to A

Brill v Madeley 1937 TPD 106: considered

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC) (2009 (11) BCLR 1075): referred to B

Coetzee v Union Periodicals Limited and Others 1931 WLD 37: referred to

Crawford v Albu 1917 AD 102: applied

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 C 2000 (3) SA 936 (CC) (2000 (8) BCLR 837): referred to

Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 (6) SA 185 (SCA) ([2004] 4 All SA 365): referred to

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1): referred to

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399): referred to

Du Toit v Minister for Safety and Security and Another 2009 (6) SA 128 (CC) (2010 (1) SACR 1; 2009 (12) BCLR 1171): applied D

Glass v Perl 1928 TPD 264: referred to

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169): referred to

Hardaker v Phillips 2005 (4) SA 515 (SCA): referred to E

Independent Newspapers Holdings Ltd and Others v Suliman 2005 (7) BCLR 641 (SCA): referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433): referred to

Johnson v Beckett and Another 1992 (1) SA 762 (A): dictum at 783B applied

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771): referred to F

Le Roux and Others v Day (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC): referred to

Le Roux and Others v Dey 2010 (4) SA 210 (SCA): referred to

Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): referred to

Masch v Leask 1916 TPD 114: referred to G

May v Udwin 1981 (1) SA 1 (A): referred to

Minister for Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC): dictum in para [15] applied

Minister of Posts and Telegraphs v Rasool 1934 AD 167: referred to

Moller v Keimoes School Committee and Another 1911 AD 635: referred to

Moolman v Cull 1939 AD 213: referred to H

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): referred to

Naylor and Another v Jansen; Jansen v Naylor and Others 2006 (3) SA 546 (SCA) ([2005] 4 All SA 26): considered

Patterson v Engelburg & Wallach's Ltd 1917 TPD 350: referred to I

Peck v Katz 1957 (2) SA 567 (T): referred to

Pienaar and Another v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W): applied

Pitout v Rosenstein 1930 OPD 112: referred to

President of the Republic of South Africa and Another v Hugo J 1997 (4) SA 1 (CC) (1997 (1) SACR 567; 1997 (6) BCLR 708): referred to

2011 (4) SA p193

Ribbink v Marais & Loos (1891 – 1892) 4 SAR 236: applied A

Roos v Stent & Pretoria Printing Works Ltd 1909 TS 988: referred to

Rubel v Katzenellenbogen 1915 CPD 627: referred to

S v...