Court takes off the muzzle
Last week, the Constitutional Court handed down a ground-breaking decision in the defamation case brought by Robert McBride, the former Ekurhuleni metro police chief, against The Citizen newspaper, who had called McBride a criminal and a murderer. The decision gives much-needed breathing space to the media, allowing more robust criticism of public figures.
Some background is necessary.
In 1986, McBride, as an operative of the African National Congress's armed wing, detonated a car bomb outside Magoo's Bar and the Why Not Restaurant in Durban, in which 69 people were injured and three women killed. He was sentenced to death, but was reprieved and released in the early '90s.
Fast-forward to September 2003, when McBride was a candidate for the position of chief of Ekurhuleni's metro police.
The Citizen was opposed to McBride's appointment, and didn't mince its words in a number of articles and editorials. The paper regarded McBride as "blatantly unsuited" for the position, "unless his backers support the dubious philosophy: get a criminal to catch a criminal". Reference was made to the "cold-blooded multiple murders which he committed in the Magoo's Bar bombing", and his "dubious flirtation with alleged gun dealers in Mozambique". When McBride threatened to sue the paper, it responded with a headline: "Bomber McBride to sue The Citizen." He was labelled by the paper as one of the "three most notorious non-governmental killers of the late-apartheid period"; "a wicked coward"; "evil" and "human scum".
McBride sued for defamation, arguing that the statements meant he was a murderer and a criminal, and was involved in illegal activities with gun dealers in Mozambique.
The Citizen raised the defence of fair comment, arguing that the statements concerned a matter of public interest: McBride's suitability for the job of police chief. But to succeed with that defence, The Citizen had to show that the facts upon which the opinion was based were true. This essentially meant proving that McBride was a murderer.
The problem facing the newspaper was that in 2001 McBride had been granted amnesty under the Promotion of National Unity and Reconciliation Act - and a provision in the act stated that, once amnesty had been granted, a person's "conviction shall for all purposes ... be deemed not to have taken place".
The High Court in Johannesburg and the Supreme Court of Appeal held that the effect of this provision was that, once amnesty had been granted, it was no longer permissible to brand McBride a criminal and murderer.
The majority of the Constitutional Court, in a judgment penned by Justice Edwin Cameron, disagreed. Justice Cameron ruled that such a literal interpretation of the Reconciliation Act could not be sustained: "The statute's aim was national reconciliation, premised on full disclosure of the truth. It is hardly conceivable that its provisions could muzzle truth and render true statements about our history false."
And the literal interpretation of the act didn't properly consider the right to freedom of expression. The court emphasised that this concern applied not only to public debate about the suitability for office of a person who had received amnesty for murder.
It also applied to the families of the victims of apartheid-era murders, such as two of the amici, or friends of the court: Joyce Mbizana, the sister of Justice Mbizana, and Mbasa Mxenge, the son of Griffiths and Victoria Mxenge. Justice Cameron ruled that the act "does not stifle the language that may accurately describe the events that led to the conviction".
Having dealt with the red herring of the Reconciliation Act, the court then conducted a classic defamation law analysis: the statements were undoubtedly defamatory of McBride, but was the defence of fair comment available to The Citizen?
In answering that question in favour of The Citizen, the court gave potency to freedom of expression in various ways:
First, Justice Cameron confirmed that the word "fair" in the defence of "fair comment" was a misnomer: "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."
Second, Cameron confirmed that The Citizen's entire seven-week series of articles and comments on McBride in 2003 had to be considered. This meant it was not possible for McBride to "cherry pick" the articles he regarded as defamatory and ignore the others.
Two earlier articles - which McBride had not objected to - had mentioned that McBride had been granted amnesty. This, as well as the fact that his amnesty was a notorious fact meant, in effect, the reader of the articles is assumed to know McBride got amnesty.
There are significant implications of this finding for defamation law. In a number of decisions, cited by Justice Cameron with approval, the European Court of Human Rights considered whether an article was defamatory in the first place by reference to its impact in a series of contemporary reportage. For example, it may be arguable that a right of reply provided after publication of an article, and included in a later publication, is reasonable in the context of a series.
Third, the court reaffirmed that "it is good for democracy, good for social life and good for individuals to permit maximally open and vigorous discussion of public affairs". Therefore, Justice Cameron said, The Citizen was entitled to express views on McBride's suitability, even in terms that the judge regarded as vengeful and distasteful. But the judge's opinion was not what mattered: The Citizen was entitled to express its opinion on whether McBride was fit to hold an important public post, and in that context should "be permitted significant leeway".
In this finding, Justice Cameron was defending the free speech principle expressed by the 18th-century philosopher Voltaire: "I may not agree with what you say but to the death I will defend your right to say it."
Fourth, Justice Cameron accepted that, despite its "unrelentingly harsh and unforgiving" coverage of McBride, The Citizen had not been malicious.
However, this finding of the majority of the Constitutional Court should be contrasted with the decision of Justice Mogoeng Mogoeng, who found that the statements published by The Citizen were "part of a well-orchestrated character assassination campaign ...".
Justice Mogoeng 's finding is problematic: if judges too readily infer malice from hard-hitting and even vitriolic comment based on matters of public interest and on facts, much of the protection which the defence of fair comment has provided over the years will be eroded.
Fifth, in considering the allegation that McBride had engaged in a "dubious flirtation with alleged gun dealers in Mozambique", Justice Cameron confirmed the distinction between different levels of meaning. It was one thing to say McBride was criminally involved with gun dealers; another entirely to say that McBride was suspected of gun dealing.
Applying this distinction, Justice Cameron found against McBride: the allegation meant no more than that McBride was suspected of being involved in gun dealing, not that he was actually involved. (Chief Justice Sandile Ngcobo and justices Sisi Khampepe and Mogoeng disagreed).
Although the majority of the court protected The Citizen in relation to its commentary about McBride, it unanimously found against The Citizen in one respect: the paper had falsely claimed that McBride lacked contrition in respect of the bombing.
This was an "egregious defamation", and the court awarded McBride R50000 in compensation. The court declined, however, to order The Citizen to publish an apology, saying "the question of an apology where a media defendant has defamed another must await another day".
One of the first rules that journalists are taught is that while facts are sacred, comment is free.
While the law is more nuanced than this maxim suggests, the judgment in the McBride case should be welcomed: it liberates the defence of fair comment in a unique setting and, in doing so, emphasises the importance of robust debate on political issues in a democracy.
Milo is a partner at Webber Wentzel, author of Defamation and Freedom of Speech, published by Oxford University Press, and acted for the South African Editors' Forum, the Freedom of Expression Institute, Joyce Mbizana and Mbasa Mxenge in the case