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

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3 Fact or Opinion?

The appellants, primarily, sought to rely on the defence of publication of truth. However, after analysing the whole effect of the TRC Act and its process, the majority in the Supreme Court of Appeal was of the opinion that this defence could not succeed. It reasoned that since McBride applied for, and was granted, amnesty, reference to him as a murderer was no longer true. The main question therefore is whether the appellants should have relied on the defence of truth publication or on that of fair comment.

The following facts are common cause: that McBride did bomb a Durban bar; that he applied for and was granted amnesty by the TRC;

that he was detained in Mozambique for alleged gun running; and that he was subsequently released by the Supreme Court of Mozambique as there was no evidence against him. All of this had become public knowledge. It is also common cause that the allegations about the impending appointment of McBride as the chief of police for Ekurhuleni were true, as he was subsequently appointed in that position. However, The Citizenwas of the view that he was not a suitable candidate for the position and, through a series of articles and editorials, sought to illustrate why it held this view. Its bases were mainly the multiple murders he had committed and his detention in Mozambique (the challenge to the latter was abandoned by McBride). Therefore, it submitted that Mthiyane JA was correct to conclude that, to a reasonable reader of The Citizen, the series of the articles would have been regarded as a comment and not as publication of truth. Hence, the defence of fair comment should have been pursued by the appellants. Whether this should have succeeded or not is another question for consideration. However, before considering the merits of this defence of fair comment, it is imperative to first consider the defence of truth publication, which was considered and rejected by the majority judges.

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