Dit word aan die hand gedoen dat die langverwagte ondernemingsreddingprosedure wel uit die wegspringblokke gekom het, maar dat dit met stampe en stote gepaard gegaan het, soos hierbo aangedui is


The Citizen v McBride 2011 4 SA 191 (CC)



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The Citizen v McBride 2011 4 SA 191 (CC)

Defamation - the defence of "fair" comment and media defendants
1 Background and Context

Over a period of some seven weeks in 2003, the Citizen newspaper published a series of articles and editorials dealing with the candidacy of Robert McBride as chief of the Ekurhuleni metro police. Two initial articles, largely factual in nature, informed readers of McBride's candidacy for the post as chief of police. It related McBride's infamous conviction of murder for the 1986 bombing of the Why Not Restaurant and Magoo'sBaron the Durban beachfront in which three women were killed and sixty-nine other people injured. It also recounted McBride's 1998 arrest and detention in Mozambique on suspicion of gun-running. The initial articles mentioned that McBride was sentenced to death for the 1986 bombing, that the sentence was later commuted and that he was ultimately granted amnesty by the Truth and Reconciliation Commission (parr 8 – 9).
The initial articles were followed by a range of editorials and articles, expressing strong views on McBride and his suitability for the post of chief of police. The subsequent articles included statements to the effect that McBride is "blatantly unsuited" to the post; that he is a "murderer" and "criminal" for having committed "cold-blooded multiple murders"; that he engaged in a "dubious flirtation with alleged gun-dealers in Mozambique"; that he "still thinks he did a great thing as a 'soldier' blowing up a civilian bar"; that he is "not contrite", a "wicked coward who obstructed the road to democracy"; and that his act was one of "human scum". (parr 10 - 17). Importantly, these later articles made no mention at all of McBride's amnesty.
McBride sued the owner, editor and columnists of the Citizen for defamation and injury to his dignity and was awarded R200 000 by the South Gauteng High Court (par 25). The Citizen appealed to the Supreme Court of Appeal, which also found against it but reduced the damages to R150 000 as it found the statement that McBride engaged in a "dubious flirtation with alleged gun dealers" in Mozambique did not bear out the meaning assigned thereto by McBride (par 26). The matter then went on appeal to the Constitutional Court.

In essence, the case turned on the defence of fair comment. In tracing the origins of this defence, its incorporation into South African law and its post-constitutional development, Cameron J confirmed the elements of the defence of fair comment to be as follows (parr 80 & 88): (a) The statements complained of must constitute comment as opposed to fact; (b) The factual allegations being commented upon must be true; (c) The facts upon which comment is expressed must be truly stated; (d) The comment must be honestly expressed, without malice; (e) The comment must relate to matters of public interest.
The elements listed in (b) and (c) above are usually grouped together by authors on the topic, but for purposes of this discussion I have separated them due to the respective attention they received in the judgment by the Constitutional Court. Each of these requirements, to a greater or lesser extent, was at issue during the course of litigation in the High Court, the SCA and the Constitutional Court. In what follows, I will seek to analyse the judgment by the Constitutional Court by dealing with each of these requirements sequentially, with reference to the facts in the McBride matter.


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