The law of unintended consequences

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The South African National Editors Forum (SANEF) and the Freedom of Expression Institute (FXI) say the Supreme Court of Appeal has paid “little or no attention” to the right to freedom of expression when it ruled that The Citizen newspaper had defamed Robert McBride by calling him a murderer.

The continuing court battle between the former Ekurhuleni metro police chief and The Citizen has far-reaching implications for how the apartheid era and the anti-apartheid struggle are portrayed in the media and in public discourse, the Business Day newspaper say of the papers filed last week with the Constitutional Court.

The appeal court judgment said if a person was granted amnesty by the Truth and Reconciliation Commission for a politically motivated crime, that person had to be regarded as not having committed the crime. SANEF and the FXI have applied to be a friend of the court when The Citizen appeals against the judgment.

The Citizen’s response to McBride’s defamation case was that its articles were “fair comment” and true since McBride was convicted of murder for the bombing of the Magoo’s and Why Not bars in Durban in 1986, which caused three deaths. But McBride argued that, in terms of the Promotion of National Unity and Reconciliation Act, those who had received amnesty must now be considered not to have committed the relevant crime — and the Supreme Court of Appeal agreed, Business Day added.

In its submissions to the Constitutional Court, The Citizen said the effect of the Supreme Court of Appeal’s judgment was “to obliterate the past and rewrite history”. It would make it false to say that security police assassin Captain Dirk Coetzee murdered Griffiths Mxenge, the paper said. The Citizen said a proper interpretation of the Reconciliation Act — its language, purpose and overall scheme — went against the interpretation given to it by the appeal court, the Business Day added.

SANEF and the FXI want to join the case to deal with the freedom of expression aspect of the dispute, the business broadsheet said. They said that in interpreting the Reconciliation Act, the appeal court did not consider the “values underlying the right to freedom of expression”. “A court should not conclude that any statute ousts expressive conduct unless it is quite clear … that this was the intention of Parliament.”

There was nothing in the act that “required or even suggested” the ousting of expression, said SANEF and the FXI. They said that “the discovery of truth” was a fundamental value underlying the right to freedom of expression. “The courts should be loath to accept an interpretation of the Reconciliation Act that requires the suppression of truth”.