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



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7 Conclusion
The court unanimously found that the Citizen's statement that McBride was not contrite constituted actionable defamation, whether or not viewed as a statement of fact or comment (par 113 - 122), and in the result awarded him R50 000 in damages (par 129). As to statements relating to McBride's "flirtation with alleged gun dealers in Mozambique" the majority of the court found on the evidence that it does not bear the meaning McBride assigned thereto on the pleadings. Ngcobo CJ and Mogoeng J arrived at a different conclusion in this regard, but that is neither here nor there.
A final issue in relation to the relief granted by the court deserves mention. Shortly before judgment was handed down, the court issued directions inviting the parties to submit argument on whether an apology would constitute an appropriate remedy, should the court find against the Citizen on any issue (par 130). This invitation coincided with the Constitutional Court judgment in the matter of Le Roux v Dey(2001 3 SA 274 (CC)) where the court found that ordering a defendant in a defamation action to unconditionally apologise to the plaintiff may in certain circumstances constitute appropriate relief (see par 202). Clearly the court was considering the possibility of ordering the Citizen to apologise to McBride for the "not contrite" statement, but stopped short of doing so mainly because McBride himself indicated that he considered an apology inappropriate for several reasons (parr 133 - 134). Cameron concluded that "the question of an apology where a media defendant has defamed another must wait for another day" (par 134). The Le Rouxand McBride judgments constitute clear signposts that the Constitutional Court is willing to explore a more prominent role for apologies in the law of defamation, whether as a defence to an action or as a remedy to a wronged plaintiff.

In all, the judgment in this matter constitutes an unequivocal endorsement of the common law relating to protected comment and demonstrates liberal support for the voicing of divergent opinions in South Africa. Cameron's finding that newspaper articles cannot be assessed in isolation from a wider context is particularly important. The Constitutional Court's new approach to apologies is an exciting and encouraging development in media law. But these findings must be contrasted with the views expressed by Mogoeng J in his minority judgment, which are most disturbing from a freedom of expression perspective. For once one allows judicial discretion to determine the lawfulness of comments on the basis of good taste, one falls into a quagmire of uncertainty. Allow me to repeat the principle voiced by the majority of the court in this regard, which would hopefully become a mantra: "The courts cannot prescribe what people may or should say"

(par 86). Postcript

The author of this note acted as the attorney of record for the Citizen and related parties in the court a quo, the Supreme Court of Appeal and the Constitutional Court. However, this note is not based on privileged knowledge of the case or documents made available to the author, nor does it represent the views of any of the parties or their legal advisors, nor should the views set out in this note be attributed to anybody but the author. It is nothing more than an academic discussion of the case by an individual commentator.


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