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



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4 1Truth

To suffice as a defence, only the material allegations of a statement must be true, rather than every minute detail (Burchell 272). This being the case, protection is even given to some erroneous defamatory statements, depending on the circumstances of the publication (Burchell 272-73). The complexity of the issue in casu lies in the fact that McBride was granted amnesty by the TRC, in terms of a legal process. Thus, one must examine this element of the defence in relation to the effect of such amnesty granted by the TRC. The effect of the granting of amnesty is spelt out under sections 20(7)(a), (8) and (10) of TRC Act:

(7)(a) No person who has been granted amnesty in respect of an act, omission or offence shall be criminally or civilly liable in respect of such act, omission or offence and no body or organisation or the State shall be liable, and no person shall be vicariously liable, for any such act, omission or offence.
(8) If any person -

(a) has been charged with and is standing trial in respect of an offence constituted by the act or omission in respect of which amnesty is granted in terms of this section; or

(b) has been convicted of, and is awaiting the passing of sentence in respect of, or is in custody for the purpose of serving a sentence imposed in respect of, an offence constituted by the act or omission in respect of which amnesty is so granted, the criminal proceedings shall forthwith upon publication of the proclamation referred to in subsection (6) [which requires gazetting the names and actions of persons granted amnesty] become void or the sentence so imposed shall upon such publication lapse and the person so in custody shall forthwith be released.
(10) Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this Act, any entry or record of the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place: Provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public.
The effect of amnesty spelt out in section 20 of the TRC Act was fully canvassed by both Streicher JA for the majority and by Mthiyane JA. It is submitted that section 20(7)(a) and section 20(8) must be understood with section 20(10) of the TRC Act. These sections should also be understood within the broader objectives of the TRC process which were reconciliation and nation building (addressed in more detail later). Properly interpreted, these subsections excuse anyone who has been granted amnesty from both criminal and civil liability. Put differently, no one who has been granted amnesty by the TRC committee will be held accountable for those acts for which amnesty was granted. While the amnesty granted to the respondent could not, according to Streicher JA (par 33), obliterate those facts or erase them from the historical record, it ensured that the respondent is no longer considered to be a criminal in respect of the deeds committed by him (par 33). It appears that Mthiyane

JA is in agreement with the majority that the granting of amnesty does not blot out historical record of what was committed (par 80). He differs from the majority judges on whether reference to a recipient of amnesty as a criminal is rendered false as a result of the amnesty. He is of the view that it does not render it false, whereas Streicher JA thinks it does (pars 80-81, 33). Contrary to the view of the majority, I agree with Mthiyane JA that amnesty does not render any reference to deeds for which one was amnesty granted, false. This will be misrepresenting the purpose of amnesty, namely, nation building and reconciliation, and not eradicating the facts of history.
Mthiyane JA is also of the opinion that such reference is not prohibited as a result of amnesty (par 80). However, Streicher JA seems to suggest that such reference is prohibited when he said ". the respondent is no longer considered to be a criminal in respect of deeds committed by him" (par 33). In view of the objectives of the TRC process and s20(7) of the TRC Act, I agree with Streicher JA's view. A protracted reference to a recipient of amnesty as a criminal in respect of crimes for which he obtained amnesty renders him accountable, criminally or otherwise for such deeds, whereas in law he should not be. This would be contrary to section 20(10) of the TRC Act, which excuses recipients of amnesty from such liability. It also undermines efforts to achieve reconciliation and nation building through the integration of former political prisoners in the society. This view will be mainly relevant when I consider the second part of the truth and public interest defence, namely, public benefit.

The majority were incorrect to conclude that the statements were false as a result of amnesty granted to McBride by the TRC. It is a fact that McBride did place a bomb in a bar which killed and injured people. He was convicted for this deed. The bombing and the subsequent injuries and deaths are historical facts. Thus, notwithstanding amnesty granted to him in terms of a lawful TRC process, the published statements were substantially true.



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