The Citizen 1978 (Pty) Limited and Others v Robert John McBride

The respondent, Robert John McBride, was a former member of Umkhonto we Sizwe who planted a car bomb outside Magoo's Bar/Why Not Restaurant in Durban in 1986, killing three women and injuring 79 people. He was convicted of murder and attempted murder and sentenced to death in 1987. His sentence was commuted and he was released in 1992. In 2001, he was granted amnesty by the Truth and Reconciliation Commission under the Promotion of National Unity and Reconciliation Act 34 of 1995 for his conduct in the armed struggle. In September-October 2003, The Citizen newspaper published editorials and articles describing McBride as a "murderer" and "criminal" who was unsuitable for appointment as Ekurhuleni Metro Police Chief. The articles were published after his amnesty had been granted. McBride sued for defamation, arguing that the grant of amnesty meant he could no longer be described as a murderer or criminal. The appellants (newspaper and journalists) defended the claim on the basis of fair comment on a matter of public interest.

• Whether a person granted amnesty under the TRC Act can still be lawfully described as a 'murderer' or 'criminal' in respect of offences for which amnesty was granted
• The effect of section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995 on the status of persons granted amnesty
• Whether the defence of fair comment was available to the defendants
• Whether statements that McBride was a murderer constituted statements of fact or expressions of opinion
• The balance between freedom of expression and protection of dignity in the context of post-TRC South Africa

The appeal was partially upheld. The order of the trial court was set aside. The fourth, fifth and sixth defendants (first to third appellants: The Citizen, its editor, and journalist Williams) were ordered to pay R150,000 damages (reduced from R200,000) plus interest. The seventh defendant (fourth appellant: journalist Kenny) was ordered to pay R100,000 of that amount plus interest. Costs were awarded against the defendants in the trial court. The appellants were ordered to pay 75% of the respondent's costs of appeal, jointly and severally.

Once amnesty has been granted under section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995, the person granted amnesty can no longer be lawfully described as a criminal or murderer in respect of the offences for which amnesty was granted. The purpose of the TRC Act was not only to remove criminal and civil liability but to allow for the reintegration of persons into society. Section 20(10) provides that convictions are deemed to be expunged and deemed not to have taken place 'for all purposes'. While the historical facts of what occurred cannot be obliterated, and the acts themselves remain part of the historical record, the legal consequence is that persons granted amnesty are no longer to be considered as having committed those offences. A statement describing a person as a murderer after amnesty has been granted is therefore a false statement of fact and cannot be justified as fair comment when the factual basis (that the person is a murderer) is legally untrue.

Streicher JA observed that amnesty was a critical component of the negotiated settlement that led to South Africa's transition to democracy, and without agreement on reintegration of those granted amnesty, a negotiated settlement may not have been possible. The court noted that the TRC Act contemplated that people granted amnesty should be considered not to have committed the offences and that those offences should not be held against them. Ponnan JA (concurring) emphasized that amnesty was born out of recognition that the painful chapter of apartheid-era conflict had to be brought to a close, and that the grant of amnesty heralded the promise of reintegration into society. To continue branding someone a criminal after amnesty would render the amnesty process meaningless and illusory. The dissenting judges observed that freedom of expression on matters of public interest should be given wide scope, particularly in relation to public figures, and that extreme or even right-wing views may constitute fair comment if genuinely held.

This case is highly significant in South African law as it clarifies the legal effect of amnesty granted under the TRC Act. It establishes that amnesty does more than simply remove criminal and civil liability - it changes the status of the person granted amnesty such that they may no longer be lawfully described as a criminal or murderer in respect of those offences. The case demonstrates the constitutional commitment to reconciliation and reintegration that underpinned the TRC process. It also illustrates the tension between freedom of expression (section 16 of the Constitution) and the right to dignity (section 10), showing that freedom of the press is not absolute when statements about persons granted amnesty are factually incorrect in law. The case contributed to debates about the scope and meaning of the TRC process and its ongoing legal effects. The strong dissenting judgments reflect the difficulty and controversy surrounding these issues in post-apartheid South Africa.