Case Summary and Outcome

The Constitutional Court of South Africa, allowing a newspaper’s appeal against a Supreme Court decision, held that criticism is protected even if harsh so long as it expresses an honestly-held opinion, made without malice, on a matter of public interest on proven facts. The Citizen newspaper published several articles opposing the appointment of Robert John McBride, to a senior police post on the basis that he was a convicted murderer, despite the fact that he had been granted amnesty of that crime under the Promotion of National Unity and Reconciliation Act 34 of 1995 (Reconciliation Act). The Court reasoned that the Reconciliation Act did change the fact that McBride committed murder nor did it prohibit frank public discussion of his act as “murderer”or prevent him being described as a “criminal” and therefore did not curtail the constitutional right to freedom of expression protected under the Bill of Rights.

Facts

The Rspondent, McBride, had been an operative for Umkhonto we Sizwe, the armed wing of the African National Congress (ANC). In 1986, he carried out a car bombing outside a bar in Durban that killed three and injured 69. He was found guilty of murder and sentenced to death, however, in 1997 he applied for amnesty under the Reconciliation Act and it was granted in 2001.

In 2003, McBride was a candidate for head of the Ekurhuleni metro police and the Citizen newspaper published articles and editorials questioning his suitability for the position. The articles stated that he was unsuitable for the post; called him a “criminal” and a “murderer,” sometimes without mentioning the amnesty; referred to the car bombing; and what they called his “dubious flirtation with alleged gun dealers in Mozambique” in 1998. The Citizen also stated that he had shown no contrition with respect to these past actions.

McBride sued the Citizen, its editor and the journalists who had written the articles for defamation stating that having received amnesty it was not permissible  for the media to label him a “murderer”; that the Citizen’s coverage was malicious; and that the articles would be understood by readers of the Citizen to mean that he was a criminal because he had made common cause with gun dealers in Mozambique.

The Citizen and its journalists argued that the articles were protected as “fair comment”; they related to matters of public interest, specifically, whether McBride was suited to a job with the police; and the facts on which the comments were based were true.

At the High Court level, McBride was successful and on appeal to the Supreme Court of Appeal, a majority of the Court found in his favor on the majority of his claims. However it also held that the Citizen’s comment that McBride had “dubious flirtation with alleged gun dealers” could not reasonably be interpreted to mean that Mr McBride was involved in criminal activities, only that his activities were suspicious and reduced his damages accordingly.

The journalists applied for leave to appeal to the Constitutional Court and were joined by amici curiae including the South African National Editors’ Forum, the Freedom of Expression Institute, and relatives of Victoria and Griffiths Mxenge and the “Mamelodi Four”, who had been murdered during apartheid. McBride cross-appealed against the Supreme Court’s finding that the Citizen’s comment “dubious flirtation with alleged gun dealers” was not defamatory.

Decision Overview

The majority judgment was written by Cameron J with Brand AJ, Froneman J, Nkabinde J and Yacoob J concurring.

The Court held that the Reconciliation Act did not make the fact that McBride committed murder untrue nor did it prohibit frank public discussion of his act as “murderer”or prevent him being described as a “criminal”. It held that in order to be protected, comment need not be “fair or just at all”, and that criticism is protected even “if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true”.

The main part of the Citizen newspaper’s appeal was upheld and McBride’s cross-appeal for a reduction in damages dismissed. However, the Court found that the Citizen had defamed McBride by claiming that he was not contrite about his criminal actions and awarded him R50,000.

Ngcobo CJ, with Khampepe J concurring, in a separate judgment, agreed that the Reconciliation Act did not make the facts of the commission of the murders untrue but felt that the balancing of the right to freedom of expression, on the one hand, with human dignity on the other, required the facts upon which the Citizen’s comments were based to include reference to amnesty having been granted to McBride. Ngcobo CJ concluded that the collective coverage of McBride’s candidacy adequately stated McBride’s grant of amnesty. However, he also held that the Citizen failed to make reference to the circumstances under which McBride was ultimately released from detention in Mozambique making the statement about his activities there a half-truth that was therefore untrue and McBride ought to have been permitted to cross-appeal.

Finally, Mogoeng J, although he agreed with the majority on the point of contrition, held that he would have dismissed the Citizen’s entire appeal and upheld McBride’s cross-appeal as he found the statements that McBride was a “criminal” and “murderer” to be malicious and part of a well-orchestrated character assassination campaign waged by the Citizen against him.