In April 2011, the South African constitutional court granted the media more freedom to criticise public figures by liberalising defamation law. The change was affected by the judgment in The Citizen v McBride, a case with facts rooted deep in the country's fraught political history.
In 1986 Robert McBride was an operative in the armed wing of the African National Congress. He detonated a car bomb outside Magoo's Bar in Durban, killing three women and injuring 69 other people. He was sentenced to death, but subsequently won a full reprieve as part of the post-apartheid reconcilation process.
In 2003, McBride ran as a candidate for the position of Chief of the Ekurhuleni Metropolitan Police. The Citizen, a newspaper, emerged as a vocal opponent of his candidacy. In a series of editorials it described McBride as a "wicked coward", "blatantly unsuited" to the position, and called him "evil", "human scum", "a criminal", and a "cold blooded murderer". It also made reference to his "dubious flirtation with alleged drug dealers". When McBride decided to to take legal action, the paper responded by publishing the headline "Bomber McBride to sue The Citizen".
As threatened, McBride sued for libel under the then strict South African defamation law. He submitted, not unreasonably, that the statements implied he was a criminal and a murderer involved in illegal activities with drug dealers.
The Citizen raised the defence of "Fair Comment", arguing that the statements were a matter of public interest. In order for this defence to succeed, two hurdles had to be overcome. Firstly, the newspaper had to prove any statements of fact were true. Secondly, it had to convince the court that the principles of free expression and public interest should supercede McBride's privacy.
The first test required The Citizen to prove that McBride was a murderer. This presented a tricky legal problem because, although he had been convicted of murder, he had received a full pardon, meaning that under the terms of amnesty in the Reconciliation Act the criminal activity should be "deemed not to have taken place". The Supreme Court of Appeal had ruled that once amnesty was granted it was no longer possible to refer to the crime in public.
However, the majority of the Constitutional Court disagreed. In the judgment, given by Justice Edwin Cameron, the justices stated that the Reconciliation Act was not designed "to muzzle truth and render true statements about history false". Covering up crimes that took place during the era of apartheid government was not considered to be credible or sensible legal policy. Therefore, with regard to this case and others in the future it is acceptable to refer to an individual's murder conviction in the South African media even if it had been quashed under the Reconciliation Act.
The court then considered the second stage of the defence of fair comment - whether or not to give primacy to free expression in the media by allowing it to openly express its strong negative opinion of, or even bias against, public figures.
The justices decided to give ascendency to free speech. Mr Justice Cameron declared that the right to express criticism was to be protected, even if it allows for "extreme, unjust, unbalanced (views) and prejudices (and in so far) as it expresses an honestiy held opinion on facts that are true".
The Court affirmed that it is "good for democracy, good for social life and good for individuals to permit open and vigorous discussion of public affairs". For this reason, The Citizen was at liberty to cast doubt over McBride's suitability for elected office in terms that were distasteful and vengeful. According to Cameron, the media should be "permitted significant leeway" in its opinion.
The court also stated that although correct facts were essential comment was free. On these grounds it found that a claim in The Citizen that McBride lacked remorse over the bombing represented "egregious defamation" and awarded McBride R50,000 ($7,300) in compensation. This allegation of lack of remorse was without foundation and not permitted.
The result could have wider implications for other political figures who have previously used strict interpretations of defamation law to prevent themelves from being discredited or attacked by the media. The most prominent example is that of the current President Jacob Zuma. In 2010, Zuma started libel proceedings against Avusa Media for printing a cartoon of him attempting to rape "Justice" in their paper, The Sunday Times. Zuma was acquitted of a rape charge in 2006. The editor of the paper, Roy Hartley, said at the time that it was "sad" a political figure could sue over a satirical cartoon. In the light of The Citizen v McBride, it now seems unlikely that this case would proceed.
The ruling suggests the South African legal system has developed a new, liberal outlook on media comment and emphasises the importance of open, robust political debate in a mature democracy. It should be welcomed.
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