The test for distinguishing a factual statement from comment or expression of opinion is correctly set out in the case of Marais v Richard 1981 1 SA 1157 (A). It is "how the ordinary reasonable reader would have understood [the statement to be" (quoted in paras 40 and 67). According to Jansen JA in the Marais case, the answer depends largely on the content of the allegation, the context in which it is used and the circumstances known to the reader (par 40). The majority in casuwere reluctant to entertain the defence of fair comment on The Citizen's behalf, primarily as they were of the view that the publications purported to be truth as opposed to opinion (par 42). Nonetheless they gave The Citizen the benefit of the doubt and considered this defence (pars 43-44). They held that they would have dismissed the defence for lack of true basis and in the light of the amnesty granted to McBride (43-44). However, Mthiyane JA was of the opinion that the published article would have been understood by a reasonable reader to be an opinion (par 49).
The requisites for a successful defence for fair comment were laid down as early as 1917 in the case of Crawford v Albu 1917 AD 102 114, namely: (i) The allegation in question must amount to a comment or opinion; (ii) it must be fair; (iii) the factual allegation on which the comment is made must be true; and (iv) the comment must be on a matter of public interest. These points were echoed by the court in the Marais case (1167F). These were also considered by Mthiyane JA (par ).