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Sanef welcomes victory for freedom of expression in McBride appeal judgment

08 April 2011

The SA National Editors’ Forum (Sanef) welcomes the majority decision of the Constitutional Court in upholding the Citizen newspaper’s appeal in a defamation case against former Ekurhuleni Metro police chief, Robert McBride as a victory for freedom of expression and freedom of the media.

The High Court and the Supreme Court of Appeal had found in favour of McBride’s claim that he had been defamed by the newspaper when it called him a murderer for planting a bomb in Magoo’s Bar in Durban which killed three women and injured others during the struggle. However, the majority 5-3 judgment by the Constitutional Court found that the Reconciliation Act did not turn the fact that McBride committed murder into an untruth because he had received amnesty from the Truth and Reconciliation Commission.

The effect of the Supreme Court of Appeal judgment, according to journalists, was not only to expunge the murder conviction from criminal records but also from history. It had the additional effect of making a reference to McBride as a “murderer” a defamatory statement.

The court found that the Act did not prohibit frank public discussion of his conduct as a “murderer” and did not prevent his being described as such or a “criminal”.

Sanef notes the important point of principle established by the Constitutional Court that published criticism was protected even if it were extreme, unjust, unbalanced, exaggerated and prejudiced so long as it expressed an honestly-held opinion, without malice, on a matter of public interest on facts that were true. The court stated that protected comment need not be “fair or just at all” in any sense in which these terms were commonly understood.

The Citizen had campaigned against McBride’s appointment as Ekurhuleni police chief on grounds that he was a criminal and murderer and thus unsuitable for the post. The court ruled that despite the newspaper’s articles being “vengeful and distasteful”, it was entitled to protected comment.

The court upheld the Citizen’s main appeal, dismissing McBride’s cross-appeal, but found that the paper had defamed McBride by claiming falsely that he was not contrite over the effects of the bombing. It awarded McBride damages of R50,000.

Sanef, which supported the Citizen’s appeal as a friend of the court (amicus), believes that the finding will aid newspapers in their battle against defamation claims and strengthen the principles of freedom of expression and freedom of the media.

Issued by the SA National Editors’ Forum (SANEF)