Constitutional Court upholds right to express truth

Posted on April 12, 2011. Filed under: Courts, Transitional Justice |

The South African Coalition for Transitional Justice (SACTJ) has welcomed last week’s Constitutional Court ruling upholding the “rights of victims of apartheid-era abuses, as well as the media and public, to speak the truth about crimes amnestied by the Truth and Reconciliation Commission (TRC).”

The case of  The Citizen 1978 (Pty) Ltd and Others v Robert John McBride, according to the Constitutional Court, focused on how an “amnesty granted under the Promotion of National Unity and Reconciliation Act 34 of 1995 (Reconciliation Act) affects a claim for defamation.” In 2003, while under consideration for the post of Ekurhuleni metro police chief, The Citizen “published a number of articles and editorials questioning Mr McBride’s candidacy”, and in which he was described as a “criminal” and a “murderer”. This was in reference to a bombing McBride carried out in 1986 in Durban while a member of Umkhonto we Sizwe, in which three people were killed and sixty-nine injured. He applied for amnesty under the Reconciliation Act, and this was granted in April of 2001. (full statement from the Constitutional Court)

The Constitutional Court describes its ruling, in which The Citizen‘s appeal was upheld and McBride’s cross-appeal dismissed, though also finding that The Citizen defamed McBride by “claiming falsely that he was not contrite”:

In a majority judgment by Cameron J (Brand AJ, Froneman J, Nkabinde J and Yacoob J concurring), the Court found that the Reconciliation Act did not make the fact that Mr McBride committed murder untrue. And that Act did not prohibit frank public discussion of his act as “murderer”. Nor did it prevent his being described as a “criminal”. The Court emphasised that protected comment need not be “fair or just at all”, in any sense in which these terms are commonly understood. 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 Citizen was thus entitled to express views on Mr McBride’s suitability for the post. It did so with coverage that struck the Court as vengeful and distasteful. But the Court emphasised that its opinion is not the issue. Despite the harshness of the Citizen’s coverage, it is entitled to legal protection.

A separate judgement was also made by Ngcobo CJ, with Khampepe J concurring. (full statement from the Constitutional Court)

The SACTJ supported Joyce Mbizana and Mbasa Mxenge, who brought an amicus brief before the Consitutional Court. Both Mbizana and Mxenge suffered the loss of family members murdered by apartheid security police officers, who were later granted amnesty through the TRC. Their brief emphasised the “right to truth”, and maintained that,

“the ruling of the lower courts 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.” (full statement here)

The SACTJ consists of the Khulumani Support Group, Centre for the Study of Violence and Reconciliation, International Centre for Transitional Justice, South African History Archives, Human Rights Media Centre, Institute for Justice and Reconciliation and the Freedom of Expression Institute.

For the full judgement, click here (PDF) or here (Word).

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