The third requirement for fair comment defence is that the comment must be fair. It is submitted that while the element of truth is necessary for a successful defence of fair comment, the element of fairness of the statements made by the appellants held the key to the success of their entire defence. This requirement entails that the comment be an honest or bona fide expression of an opinion; it must be relevant; and that it must not be motivated by malice or ulterior motives on the part of the defendant. The latter is a subjective criterion. It is submitted that the articles and editorials in question may have been motivated by ulterior motives or malice. It cannot be ruled out that Appellants' intention was to taint McBride's reputation thereby ensuring that he did not get the post of chief of police. They were aware that he had been granted amnesty for his actions in terms of a lawful process. Yet they relentlessly referred to him as a "criminal", "bomber McBride" or a "murderer". They went as far as casting a shadow of doubt on his credentials as a genuine freedom fighter. Judged by their tone, it is submitted that, at worst, the articles were intended to arouse hatred for McBride. Therefore it is humbly submitted that the opinion expressed by the appellants was not motivated by honesty. Thus, they do not pass the test for fairness.
Moreover, McBride is branded a criminal who is not suitable to head any decent police force. His legitimacy as a true freedom fighter is further questioned when he is equated with a notorious apartheid killer and accused of strengthening the hand of apartheid. Therefore, the comments made by the appellants reflect negatively on McBride's integrity. Hence a stricter test of fairness must be applied (Burchell 278). This requires invoking an additional requirement for fairness, namely, that the comment must also constitute a reasonable inference from the facts. In casu, McBride was granted amnesty by the TRC in terms of the TRC Act, which was intended to ensure full integration for political prisoners and to give them a new lease on life. The Act intended that persons granted amnesty should not be held accountable for crimes perpetuated in the name of the struggle (paras 73-74). However, the appellants on more than one occasion referred to McBride as a criminal or a murderer. Therefore it is submitted that in the circumstances, reference to McBride as a murderer or criminal, after he had been granted amnesty, is not a reasonable inference from the facts. Instead, it amounts to holding him accountable for actions for which he had been granted amnesty. Alternatively, it is submitted that if the effect of amnesty does not fall under the requirement for fairness of the comment, it must at least play an integral role under the fourth requirement for fair comment defence, namely, whether the appellants' comment was in the public interest. Furthermore, reference to McBride's arrest in Mozambique is also questionable as far as the motivation for making such a reference is concerned. It imputes dishonorable motives to McBride, by implying that he contrives with criminals from the underworld or that he is corrupt. It is common cause that McBride was arrested in Mozambique, but he was subsequently acquitted by the Supreme Court of Mozambique because there was no evidence or substance to the allegations. It is submitted that this fact, as well as the constitutional principle of presumption of innocence until proven otherwise, render the appellants' comment unreasonable. Nevertheless, it is submitted that in view of the nature of the position for which McBride was aspiring, he was wise to abandon this part of the claim.