Tuesday, March 2, 2010

According the the Supreme Court of Appeal, something can be factually correct and untrue at the same time. That makes it difficult for journalists.

Harvey Tyson, a former editor of The Star, memorably remarked that editing a newspaper during the dark days of the emergency legislation was like “walking blindfold through a minefield”. The job may be slightly easier these days, but the Supreme Court of Appeal’s judgment in Robert McBride’s defamation case against the Citizen illustrates that some of those landmines are still out there. News media had better tread carefully.

McBride, the former Ekurhuleni police chief, won R150 000 in damages, plus most of his legal costs, from the Citizen for calling him a murderer, a criminal and unfit to be appointed as police chief. The ruling sets off alarm bells for several reasons. For one, it is one of the largest-ever damages awards for defamation in South Africa, and together with legal costs would prove crippling to many a news organisation (if not for the Citizen). It is sure to have a chilling effect on future news reporting and commentary. Secondly, in rejecting the Citizen’s appeal against a High Court ruling, the SCA in effect ruled that it is defamatory to refer negatively to the past actions of someone who has been granted amnesty for those actions by the Truth and Reconciliation Commission. This could make it very difficult to report and comment on the activities of people who were involved in human rights abuses during apartheid, and received amnesty.

The case arose out of a series of articles around the time it became known that McBride would be appointed as Ekurhuleni police chief. The newspaper argued that he was unfit to be appointed to the post because of he was a “criminal” and a “murderer”. The SCA held that he could no longer be described as a “murderer” or “criminal” for the bombing in 1993 of the Magoo’s Bar, which killed three women and injured a number of other people. McBride, an Umkhontho weSizwe guerrilla at the time, was convicted of murder and sentenced to death. He was reprieved in 1991 and released a year later in terms of a presidential pardon that included another murderer, the “Wit Wolf” killer Barend Strydom. McBride subsequently applied for and was granted amnesty by the TRC (not without controversy, as his victims were civilians and not, as required by the amnesty legislation, members of the security forces).

In sueing the Citizen, McBride asserted that he could no longer be called a criminal or a murderer as the amnesty had expunged hi s criminal record. The newspaper argued that the bombing of Magoo’s Bar was a historical fact, and that its views on McBride and his suitability to be a police chief constituted fair comment, which would justify the defamatory nature of the articles. The SCA rejected the Citizen’s defence.

In its majority ruling, written by Mr Justice Pieter Streicher, the SCA held that “people to whom amnesty had been granted should not be held criminally and civilly liable for offences committed by them in the course of the conflicts of the past and with the political object of liberation, but also that they should be considered not to have committed the offences and that those offences should not be held against them, so that they could be reintegrated into society”*. The court conceded that it is a fact that McBride killed people, and that he was convicted of murder. The amnesty cannot erase the historical record. However, the court argued, the effect of the amnesty is that he can no longer be called a murderer. So although it is factually correct to refer to McBride as a “murderer” and “criminal”, the amnesty renders such a reference untrue. According to the convoluted logic of the SCA, something can be factually correct and untrue at the same time! How are journalists to deal with that?

I believe the SCA’s ruling is based on a misunderstanding of the purpose of the amnesty provisions of the Truth and Reconciliation process. Amnesty was not offered to perpetrators of political violence in order to undo the past, or to expunge our history. Perpetrators of human rights abuses were offered a trade-off: amnesty in return for full disclosure. The legislation did not require us to forgive the perpetrators or condone their actions. The intention was to set the record straight; to find out the truth so that we will never repeat the abuses of the past. To argue, as SCA did, that we may now not rely on that truth to express negative opinions about people who have been granted amnesty is just plain wrong. Am I not allowed to comment with distaste about the past of, say, Brigadier Jack Cronje, the former security policeman who, along with four of his henchmen, was granted amnesty for 47 killings of activists? If Cronje were to be offered a high-level post in the police in the new South Africa, would I be liable for defamation if I commented that he would be unsuitable for the position?

In his minority judgment, Mr Justice Khayelihle Mthiyane takes issue with his fellow judges on precisely that score:

“The plaintiff (McBride) contends that the effect of the grant of amnesty is that it is now impermissible to say that he committed murder or is a murderer irrespective of the factual accuracy of that description. That is a far-reaching construction of (the TRC legislation) … The (legislation) nowhere says that it is no longer permissible to refer to what the plaintiff did that caused him to apply for amnesty. That would be (…) wholly contrary to the expressed purpose of the TRC Act which was amongst other things ‘to establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in future’."

The Citizen’s articles, Mr Justice Mthiyane argued, constituted fair comment based on true facts in the public interest, and therefore justifiable. Unfortunately his four colleagues did not agree with him. The Citizen has indicated that it is considering an appeal to the Constitutional Court. I wish them well, although am not sure there is a constitutional issue involved here. As it stands, this judgment is a step backwards for freedom of expression.

*I am quoting from the media summary prepared by the SCA; anyone interested in the full argument, and Mr Justice Mthiyane’s dissenting opinion, should consult the judgment, available here.

(This post also appears on my personal blog, Low Opinions.)