'If I see someone stealing, can I call him a thief?'

If a person commits a crime and is later granted amnesty for his or her actions, does this mean the crime never happened? This was the argument put before the Constitutional Court on Thursday.

The court heard an appeal by the Citizen newspaper against an award of damages for defamation granted to former Ekurhuleni metro police chief Robert McBride.

McBride, who was a member of the ANC’s armed wing, Umkhonto weSizwe, during apartheid was responsible for a 1986 car bomb attack outside Magoo’s Bar and the Why Not Restaurant in Durban. Three women were killed in the bombing. McBride was convicted of murder and sentenced to death but was later granted amnesty by the Truth and Reconciliation Commission (TRC).

In 2003, when McBride was running for the office of metro police chief, the Citizen published a series of articles questioning McBride’s suitability for the job. Among other things, the articles referred to McBride as a “murderer”. His lawyers have argued that because he received amnesty he cannot be called a murderer.

This complex case deals with not only with the amnesty process and TRC legislation but also with the law of defamation. It hinges largely on the interpretation of Section 20 (10) of the TRC Act, which governs the granting of amnesty in the context of the Truth and Reconciliation Commission.

It states: “Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this Act, any entry or record of the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place”.

McBride’s lawyers say this section of the Act is the “lynchpin” of their argument.

In what appeared to be a case of splitting hairs, McBride’s lawyer Daniel Berger argued that an act, such as murder, rape or theft, is only unlawful if a court determines it to be so. “If a person has not been convicted then a person cannot be called a murderer,” he said. With his records expunged, McBride could not be said to have been convicted of murder, he said.

‘If I see someone stealing, can I call him a thief?’
Judge AJ Brand countered, asking “If I see someone stealing, can I call him a thief or do I have to wait for him to be convicted in court?”

Under further questioning from the judges, Berger was forced to concede that there was a difference between a conviction deemed not to have taken place and a crime deemed never to have taken place.

Advocate Wim Trengrove, acting for the Citizen, argued that: “There is nothing in [the Act] to suggest that, to give effect to its purpose, one has to regard past gross human rights violations not to have occurred at all.”

He held that there is nothing in the law that requires us to speak in euphemisms. “Saying he [McBride] unlawfully and intentionally killed three women but not to say he is a murderer does not match up to the law of defamation,” said Trengrove.

Media law expert Dario Milo said the other interesting issue that the court would have to resolve was whether, when defending fair comment, one could rely on a fact that has been given to the public in an earlier article for purposes of justifying a later article.

McBride’s lawyers claim that the newspaper deliberately failed to mention that McBride had been granted amnesty and that they did not do enough to ensure that readers could judge the value of the newspapers comment for themselves.

Berger said that while the media can report on the murders, they had a responsibility to ensure that readers understand the context and are aware that he had been granted amnesty.

He refuted Trengrove’s argument that newspaper readers were well-informed and the idea that people interested in the topic would avidly follow the McBride case week to week. “Not everybody is obsessed with Robert McBride and not everybody has followed his amnesty application,” said Berger.

According to Milo, this issue concerning fair comment point was unprecedented in South Africa since the advent of the new Constitution.

“Do you look at a whole series of articles on a particular issue? In this case, in its earlier articles the Citizen mentions the amnesty that was granted to McBride. Now the question is, do they have to mention that in every other article when they comment on his suitability for office and they call him a murderer? Or can they assume that the reasonable reader has knowledge of that previous article?” he asked.

“It will be very interesting to see how the court resolves it,” he said. However, Milo estimated that it would be at least a few months before judgement was handed down.

Faranaaz Parker

Faranaaz Parker

Faranaaz Parker is a reporter for the Mail & Guardian. She writes on everything from pop science to public health, and believes South Africa needs carbon taxes and more raging feminists. When she isn't instagramming pictures of her toddler or obsessively checking her Twitter, she plays third-person shooters on Xbox Live. Read more from Faranaaz Parker


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