The Citizen v McBride 2010 (4) SA 148 (SCA) : recent case law

• Author: M.C. Buthelezi
• DOI: 10.10520/EJC135350
• Published date: 01 January 2011
• Date: 01 January 2011
• Pages: 172-181

The Citizen v McBride

2010 (4) SA 148 (SCA)

As a matter of fact: But whose fact?

1 Introduction

In the case involving

The Citizen

newspaper and Robert McBride, the

SCA dismissed an appeal by

The Citizen

and others in their attempt to

overturn the decision of the court

a quo.

The

Witwatersrand Local

Division of the High Court had ruled that articles and editorials published

in

The Citizen

newspaper between 10 September 2003 and 20 October

2003 were defamatory of McBride.

The issue in this case was whether the fact that the plaintiff had been

granted amnesty by the Truth and Reconciliation Commission (TRC) (in

terms of section 20 of Promotion of National Unity and Reconciliation

Act 34 of 1995 (the TRC Act)) rendered false any reference to him as a

murderer. The majority judges of the SCA, per Streicher JA (Mthiyane

and Ponnan JJA, each dissenting for different reasons), ruled that any

such reference to the plaintiff who had been granted amnesty was false.

As a result thereof the court rejected the defendants’ defences for truth

publication and for fair comment on the basis that the underlying fact

upon which the opinion was based was not true. The majority was

particularly at pains to regard the publication as a comment. Mthiyane

JA largely disagreed with the view that the statements were portrayed as

the truth as opposed to comments, and he granted the defence of fair

comment. Ponnan JA, on the other hand, disagreed with both the

majority conclusion and Mthiyane JA’s conclusion, largely on the basis of

the objectives of the TRC Act which sought to foster reconciliation and

nation building.

This case note presents a critical evaluation of the conclusion reached

by the majority on the main points and their bases for dismissing both

defences. It partly takes issue with Mthiyane JA’s acceptance of the fair

comment defence. It is submitted that in respect of both defences the

appeal should have failed, but for different reasons, instead of those

advanced by the court. The truth defence should have failed on the basis

that referring to the plaintiff who had been granted amnesty as a

murderer was not in the public interest or public benefit (especially in

view of the objectives of the TRC Act and the fact that the plaintiff was

being prevented from taking office due to crimes for which he was

indemnified). This certainly was not in the spirit of reconciliation. Of

course this must be balanced against the need for the public to know the

kind of person who was tipped for an onerous public office requiring

integrity. The fair comment defence should have failed not on the basis

that the facts on which the comment was based were rendered untrue

by virtue of amnesty or that it was not a comment, but on the basis that

the comment was not fair since the plaintiff had been granted amnesty

in terms of a valid legal process.