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



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4 2 Public Interest

The question that should also be asked is whether the public stood to derive some benefit from publishing McBride's background and history. In this regard, the concept of "public benefit" should be given wider interpretation, such as "that which concerns the public" or "that in which public has an interest". In this instance, McBride was tipped for a senior public office which requires extreme integrity. Thus, the public is interested in knowing the nature and character of any person who assumes such an important public office (as The Citizen correctly argued). However, in view of the circumstances of the case and the plaintiff, the matter does not end there. McBride had been a political prisoner and a recipient of amnesty who needed to be integrated in the society, in the name of reconciliation and nation building. Therefore, another important factor that must be considered in ascertaining whether publication was made in the public interest is the objectives of the TRC Act and the TRC process.
This notion of public interest was widely canvassed by Ponnan JA in the present matter, although he did not specifically confine it within the bounds of any defence (paras 92-95). The Judge of Appeal was of the view that continued reference to McBride as a criminal and murderer was impermissible, as it goes against the purposes of reconciliation, nation building and a promise of integration into the public, of those who had been granted amnesty (paras 92-93). It is submitted that the reasoning of Ponnan JA is preferable as it goes to the central issue in the case. It is also in harmony with what was expressed by De Villiers CJ in Graham v Ker 1892 9 SC 185. The Chief Justice stated that 'an incentive for reformation will be lost if past transgressions could be raked up with impunity' (Burchell 275). However, Mthiyane JA expressed the view that reference to McBride as a murderer was not an unnecessary 'raking of past ashes', but that it was relevant to the post for which McBride was tipped (par 83). It is submitted that while such reference may have been relevant, it was not in the public interest to publish it in view of the objectives of the TRC process.
Moreover, in relation to McBride's detention in Mozambique, regard should be had to the rule of law that requires that the public needs to respect the constitutional principle of presumption of innocence until one is proven guilty. The success of the defence of truth and public benefit depended upon the aspect of public interest, instead of the truth aspect. Therefore it is submitted that both the majority and minority made an error when they made the truth aspect of the statements a central issue in this case. While important, it does not hold the key in resolving the main issue that faced the court.



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