Johannesburg - The Constitutional Court heard arguments on Thursday about the degree to which amnesty granted by the Truth and Reconciliation Commission (TRC) can affect discussion of the “old skeletons” of struggle veteran Robert McBride's past.
“Old skeletons may not forever be raised. They may be publicly raised if they are germane to the public interest,” argued advocate for The Citizen newspaper Wim Trengove.
The court was hearing an appeal by The Citizen against defamation damages granted to McBride after the newspaper labelled him a murderer who was without contrition.
McBride's advocate, Daniel Berger, contended that McBride could no longer be called a murderer because the TRC had “wiped” his record clean when it accepted his application for amnesty.
Further, it was not true that he was without contrition as he had made several public apologies to his victims.
The Citizen described McBride as a murderer in a series of articles and editorials in 2003, which questioned his fitness to be appointed as Ekurhuleni metro police chief.
McBride planted a bomb at Magoo's Bar in Durban in 1986. Three women were killed in the blast.
Earlier this year, the Supreme Court of Appeal (SCA) upheld a high court ruling that the newspaper defamed McBride.
The SCA found McBride could no longer be branded a criminal and murderer for the crime, because he had been granted amnesty by the Truth and Reconciliation Commission.
Berger argued that a person was only a murderer if he was convicted of said crime. Because McBride's conviction was “wiped” away by his amnesty, he could no longer be described as such.
“So you could call him a killer?” asked Justice Edwin Cameron.
“Yes, with context,” answered Berger.
“So you could call him a murderer with context?”
“No.”
Trengove rejected this distinction and said it would force media houses to resort to “euphemisms”.
“What he's saying is that we must be polite and speak in euphemisms,” said Trengove.
“That's good manners but it's not the law.”
Trengove said that the law and public interest sometimes required criticism of public figures to be “insulting”.
However, he acknowledged that if The Citizen had called McBride “without remorse” when in fact he had apologised to the victim's of his bombings, this could be defamation.
Berger also drew a line between what he described as comment and facts. He said that while calling McBride a murderer was not a fact in light of his amnesty, describing him as such could constitute fair comment.
Advocate Gilbert Marcus also argued against the defamation suit as an amicus curiae - friend of the court.
Marcus is representing the families of two people murdered by the South African security forces during apartheid who later claimed amnesty. The families fear that a ruling for McBride will prevent them from speaking out against their loved one's killers.
“To silence those who have been victims of abuse is to strip them of their dignity,” argued Marcus.
“It's more than stripping them of their dignity, it's a perpetuation of the abuse,” interjected Justice Zak Yacoob.
Berger argued that it was McBride's dignity which was at stake if the media were allowed to describe him as a murderer.
“What about his dignity. He is branded a cold-blooded murderer and he never gets past that.
“His right to dignity will continue to be infringed and will have no protection,” argued Berger.
He said that McBride's voluntary participation in the TRC should allow him to “turn a page” and enter public life with a clean slate.
Advocate Kgomotso Moroka, who was also acting as amicus curiae on behalf of the Ministry of Justice, concurred and argued that describing McBride as a murderer undermined the work of the TRC.
People made their appeals for amnesty at the TRC “so they can go out in the world and contribute as citizens of South Africa,” she said.
Moroko denied this was an attempt to “re-write” history.
“You can't re-write the fact that a bomb was placed and people died.
“But McBride can't be called a murderer for the rest of his life,” said Moroka.
“Reconciliation can never be achieved by forgetting the past but it is not served by name-calling.”
Trengove also cited the work of the TRC, but emphasised its work on bring forth the truth about apartheid-era crimes.
“Central to the TRC is truth-telling, public truth telling,” he said.
“We accept reconciliation is the aim but it pursues reconciliation through truth.” - Sapa