The Citizen V McBride 2010 (4) sa 148 (sca) As a matter of fact: But whose fact?

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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.

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