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



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4 Publication of Truth

It is submitted that when considering the defence of truth, the SCA erred when failing to consider it in conjunction with public benefit. It is trite law that it is not sufficient for the defendant to prove that the publication was the truth. In addition to being substantially true, such publication must also be for public benefit (Burchell Personality Rights and Freedom of Expression: The Modern Actio Injuriarum (1998) 274). Widely interpreted, public benefit incorporates public interest (Ibid). In turn, according to Thirion J in Buthelezi vSABC1997 12 BCLR 1733 (D), public interest should be understood to incorporate the concept of public concern (Burchell 275). As the author puts it, "some advantage must be conveyed to the public by the communication of the information" (Burchell 274). According to Hefer JA in National Media Ltd v Bogoshi 1998 4 SA 1195 (SCA), public interest refers to "the material in which the public has an interest, as distinct from the material which is interesting to the public" (Burchell 275). These two parts of the defence, that is, truth and public benefit, must not be regarded separately, but should be considered in relation to each other (Burchell 273). It is therefore submitted that the Supreme Court of Appeal erred in considering the truth in isolation from public benefit, which will be discussed in more detail later in this note. At this point it is worth considering the conclusion reached by the majority on the question of whether the statements published in The Citizen were false. This also requires a brief examination of the effect of the TRC process.



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