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


Comment must be Based on Facts which are True



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3 Comment must be Based on Facts which are True

The requirement that in order to qualify as fair comment the facts upon which comment is expressed must be true, required a detailed examination of the effect of the Promotion of National Unity and Reconciliation Act 34 of 1995 (TRC Act) and in particular section 20(10) thereof. This section provides (as summarised by Cameron J) (par 1) that:

once a person convicted of an offence with a political objective has been granted amnesty, any entry or record of the conviction shall be deemed to be expunged from all official documents and - 'the conviction shall for all purposes, including the application of any Act of Parliament or other law, be deemed not to have taken place.'
McBride successfully contended before the court a quoand the SCA that this means he is as a fact no longer a murderer and cannot accurately be branded as such and therefore that any comment expressed on the basis that he is a murderer or criminal fails to be protected for lack of being based on facts which are true (parr 22 – 28).
In finally deciding the issue the Constitutional Court found (in a majority judgment delivered by Cameron J with Brand AJ, Froneman J, Nkabinde J and Yacoob J concurring) that "truth-telling ... lay at the base of the moral and operational structure" of the TRC Act (par 55) and that "(t)he statute's aim was national reconciliation, premised on the disclosure of the truth" (par 59). Cameron J confirmed the minority finding by Mthiyane JA in the SCA that "the chief function of the deeming provision in section 20(10) is to secure efficient expungement of all official documents and records ... [which] entitles the grantee to full civic status" (par 64). He held that the moral absolution McBride sought from the TRC Act "lay beyond the legal benefits the statute afforded perpetrators ... and ... beyond the lawgiver's powers" (par 68). In short, Cameron J held that a murderer is someone who wrongfully and intentionally killed another and is not dependent on a finding of guilt by a court of law (par 70). Consequently, the court found that the expungement of a criminal record for murder through a process of amnesty does not expunge the deed itself, nor does it "stifle the language that may accurately describe the events that led to the conviction . [or] . the terms that may be truthfully applied to the facts" (par 72).
The inevitable result of this line of reasoning is that it is true that McBride is a murderer and thus that the comment expressed by the Citizen was indeed based on facts which are true.

In a separate, but concurring judgment (on this point) Ngcobo CJ found that although describing McBride as a "murderer" is factually true, it alone is a half-truth "and thus untrue" unless amnesty is also mentioned (par 173). Ngcobo CJ reached this conclusion after considering the "special place" amnesty occupies in our constitutional democracy, which renders the fact of amnesty an indispensable part of the truth (par 163 -167). However, after considering the references to amnesty in the initial articles, Ngcobo CJ found that the statement that McBride was a murderer was indeed "accurately stated" (par 189).


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