08 April 2011

Judgment is handed down in the McBride case

SAHA through its Freedom of Information Programme (FOIP) welcomes the decision handed down today by the Constitutional Court which saw the Citizen newspaper gaining partial success against an attempt by Robert McBride to sue the paper for defamation for a series of critical articles that had been written about his appointment to a senior police post. The judgment is a major move forward in providing a body of case law on the importance of truth-telling in South Africa.

Mr McBride was granted amnesty for the murder of three women and for causing injury to sixty-nine people after orchestrating bomb attacks in 1986. One of Mr McBride's primary assertions was that, because he was granted amnesty, he could no longer factually be referred to as a murderer, as had been stated in some of the articles in the Citizen. He also complained that the Citizen had implied he was a ‘criminal' and had falsely accused him of having no contrition for his acts of violence.

SAHA, through its membership of the South African Coalition for Transitional Justice, supported two victims of apartheid atrocities, Joyce Mbizana and Mbasa Mxenge, to bring an amicus brief in the case before the Constitutional Court. Family members of Mbizana and Mxenge were murdered by members of the apartheid security police who were granted amnesty by the TRC's Amnesty Committee for those murders. They submitted that the earlier rulings of the High Court and the Supreme Court of Appeal that the grant of amenesty meant that the criminal act amenstied did not occur, impaired their ability to speak freely about the crimes committed against their family members and about the wrongdoers who received amnesty. They contended that freedom of expression is constitutive of dignity: to deny persons in their position the right to speak the truth without fear of being sued for defamation strips them of their dignity. They argued that the effect of amnesty could not alter the historical facts.

While the Court recognised a number of important fundamental principles that should be considered in dealing with the South African past, it was its reinforcement of the primary value of the right to truth which FOIP feels is the most valuable in a political environment which is increasingly favouring the shadows of secrecy. The main two claims of defamation made by Mr McBride - that he was untruthfully accused of being a ‘criminal' and ‘murderer' - were dismissed by the Court. The predominant grounds for the dismissal were that the Citizen had made fair and substantiated comments that were in the public interest because of their capacity to facilitate political debate. Further, and at great length, the Court affirmed that the Promotion of National Unity and Reconciliation Act could never be used as an attempt to suppress the truth and discussions of the atrocities of our past. Instead, the goal of the Act is fundamentally one of enhancing openness instead of stepping away from it.

It is also worth noting that the Court awarded Mr McBride R50 000 for the seemingly false accusation made by the Citizen that he lacked contrition. This seems on the facts of the case to be a fair balancing of Mr McBride's right to dignity and reputation against the Citizen's right to freedom of expression.