Firstly, the imputation must be an expression of a comment or opinion, as opposed to an assertion of facts. In other words, one must be expressing a viewpoint as opposed to stating an assertion of facts, and one must be understood by a reasonable listener, or as in the present case, a reasonable reader of the newspaper, to be expressing an opinion. It is submitted that that Mthiyane JA was correct in his dissenting finding that, under the present circumstances, the articles and editorials amounted to an opinion (par ). Viewed as a whole, I submit that a reasonable reader of The Citizenwould have regarded these statements as an expression of opinion, rather than an assertion of facts; and would have understood them to be an opinion about McBride's unsuitability for the post of chief of police for the reasons they expressed therein. 5 2 True Facts
A second requirement for a fair comment defence is that an opinion should be based on true facts. It is trite that the facts need not be absolutely true or true in all respects, but it is sufficient that the facts be substantially true (Burchell). The court spent a considerable amount of time (in respect of both the defence for truth publication and fair comment) probing whether the appellants' comment was based on true facts, in view of the fact that McBride successfully applied for amnesty. In fact, for the majority, the whole issue of the appellants' defence stood or fell on this one element. The majority held that the granting of amnesty had rendered the bases for The Citizen's comment false. As submitted earlier, this conclusion is incorrect, for the reasons already advanced above. This view would be contrary to the cause of the amnesty granted in terms of TRC Act, which was not to render deeds of the past obliterated. As already mentioned, it is common cause that the bombing, for which McBride was convicted and then given amnesty, did occur. Moreover, it is true that he was arrested in Mozambique on allegations of gun running between Mozambique and South Africa, but subsequently discharged by the Supreme Court of Mozambique. Therefore, the comment by the appellants was based on facts that are substantially true.