The South African Constitutional Court upholds the right to express the truth

Robert Mc Bride, an Umkhonto we Sizwe operative planted a bomb outside the Magoos Bar / Why Not Restaurant on the Durban beachfront in 1986. The explosion killed three people and injured 69 others. In 1987 Mc Bride was convicted of murder and several other offences relating to the attack sentenced to death. McBride’s sentence commuted to life imprisonment in 1991 and he was released from prison in 1992.

In 1997 Mc Bride applied to the Truth and Reconciliation Commission for amnesty for the murders and associated crimes in terms of the Promotion of National Unity and Reconciliation Act 34 of 1995 (The Reconciliation Act). This was granted in 2001.

When it became known, in 2003, that McBride might be appointed as Chief of the Ekurhuleni Metro Police, The Citizen a daily newspaper, ran a number of articles insinuating that he was unsuitable for the position because he was a murder and a criminal and had been arrested and detained in Mozambique in 1998 on suspicion of gun-running.

Mc Bride sued The Citizen and its writers in the South Gauteng High Court, claiming R3.6 million in damages for defamation and for the impairment of his dignity. The Citizen defended its actions arguing that the statements constituted fair comment, that the facts on which the comments were based were true and that the comments were made about a matter of public interest. The Court upheld McBride’s claim and awarded him damages of R200,000. 

The Citizen appealed against the judgement arguing that notwithstanding the fact that he had been granted amnesty, McBride was a murderer. He had committed murder and had been convicted and sentenced to death for this crime.

The Supreme Court of Appeal (SCA) dismissed The Citizen’s appeal against the High Court’s judgement awarding damages to McBride for having been defamed by having been called a murderer and a criminal unsuited for appointment as the Ekurhuleni Metro Police Chief.  The SCA overturned the High Court’s finding of defamation based on the gun-running statements and decreased the amount awarded to McBrides by R50,000 to R150,000.
Following the judgement of the SCA, The Citizen and its journalists applied for leave to appeal to the Constitutional Court. McBride sought leave to cross-appeal against the reduced damages award.

The Citizen was supported in its appeal by a number of amici curiae (friends of the court) including the South African National Editors’ Forum, the Freedom of Expression Institutue, and relatives of Victoria and Griffiths Mxenge and the “Mamelodi Four”.

The FXI and SANEF argued that the discovery of truth is one of the primary values underlying freedom of expression and that it would run contrary to the purposes of the Reconciliation Act to suppress truth and the expression or it.

Joyce Sibayoni Mbizana, sister of Justice Mbizana, one of the “Mamelodi Four”  and Mbasa Mxenge, eldest son of the late human rights lawyers Griffiths and Victoria Mxenge, who were murdered in separate incidents in the 1980s, acting in their individual capacities as well as in the interests of all similarly situated victims were supported by an alliance of South African civil society organisations comprising the Khulumani Support Group; the International Centre for transitional Justice; the Centre for the Study of Violence and Reconciliation; South African History Archives; Human Rights media Centre; and the Institute for Justice and Reconciliation.

The core focus of Mbizana and Mxenge’s submission is the role of truth and whether telling the truth can lawfully be deterred by the effect of awarding damages for defamation. Their written arguments, deal with the relationship between freedom of expression and human dignity and; the proper interpretation of the Reconciliation Act and; the right to truth as an emerging principle of international law.

In an extensive and far-reaching Constitutional Court judgment Justice Edwin Cameron deals with the interpretation of the Reconciliation Act, the issues of defamation, fair comment and opinion, Mc Bride’s contrition and the statements on his dealings with gun-runners.

Cameron (with Brand, froneman, Nkabinde and Yacoob concurring) upheld The Citizen’s appeal finding that that the Reconciliation Act did not render it untrue that McBride had committed murder or prohibit public discussion on his act as “murder” or prevent him from being described as a criminal, although he referred to The Citizens repeated use of the term “murderer” in reference to MacBride to be “vengeful and distasteful” and it’s coverage as “unrelentingly hard and unforgiving”.

The Court found that The Citizen was entitled to express an opinion on McBride’s suitability for the post. While McBride’s cross appeal was dismissed, the Court found that the Citizen had defamed him by claiming falsely that he was not contrite and awarded McBride R50,000, reducing the amount of R150,000 awarded by the SCA.

The South African Coalition for Transitional Justice welcomed the judgment saying that the ruling would protect the “right of victims and the public to express the full truth about South Africa’s past conflicts”, describing it as ‘an important milestone, not only for victims of South Africa’s past conflicts, but also for victims of human rights atrocities worldwide”.

Martin Wiliams, editor of The Citizen, said that “the court’s ruling was a victory for press freedom and the rights of South Africans to speak the truth about the past”.

The African National Congress (ANC) commented that the judgement as “may well be a victory for freedom of speech but it is a devastating blow for the Truth and Reconciliation Commission (TRC) and what it hoped to achieve”,  the statement ends with a call to South Africans to respect the findings of the Constitutional Court and to “refrain from hasty denials of the outcomes of the TRC by forever calling those who appeared before it and were pardoned as murderers, merely to be historically factual, without cause and concern for national unity and nation building”

For further informaion see the records posted on the Constitutional Court website

Jo-Anne Duggan is the Director of the Archival Platform

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