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THE CITIZEN 1978 (PTY) LIMITED First Applicant K THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT23/2010 In the matter between: THE CITIZEN 1978 (PTY) LIMITED First Applicant KEVIN KEOGH Second Applicant MARTIN WILLIAMS Third Applicant ANDREW KENNY Fourth Applicant and ROBERT JOHN McBRIDE Respondent APPLICANTS’ SUBMISSIONS ON THE MAIN APPEAL 2 CONTENTS THIS APPEAL ..................................................................................................................................................... 4 THE BACKGROUND .......................................................................................................................................... 6 THE CONTROVERSIAL STATEMENTS ................................................................................................................ 8 The controversy ........................................................................................................................................... 8 The “McBride tipped” article ....................................................................................................................... 8 The “No comment” article and “Here comes McBride” editorial ................................................................ 9 The first Williams article ............................................................................................................................ 11 The “Bomber McBride” article ................................................................................................................... 12 The President’s letter ................................................................................................................................. 14 The “Thabo Mbeki’s straw man” editorial ................................................................................................. 15 The Kenny article ....................................................................................................................................... 16 The second Williams article ....................................................................................................................... 18 The Ngonyama article ................................................................................................................................ 19 The “McBride cops job” editorial ............................................................................................................... 20 THE MEANING OF THE CONTROVERSIAL STATEMENTS ................................................................................. 21 3 THE CITIZEN’S DEFENCE ................................................................................................................................. 27 THE SCA’S FINDING ........................................................................................................................................ 29 The finding ................................................................................................................................................. 29 The implications ......................................................................................................................................... 30 THE LANGUAGE OF THE TRC ACT ................................................................................................................... 35 THE HISTORICAL PURPOSE OF THE TRC ACT .................................................................................................. 40 THE SCHEME OF THE TRC ACT ....................................................................................................................... 48 THE IMPLEMENTATION OF THE TRC ACT ....................................................................................................... 54 THE PROPER INTERPRETATION OF THE TRC ACT ........................................................................................... 60 PRAYER .......................................................................................................................................................... 62 AUTHORITIES ................................................................................................................................................. 64 4 THIS APPEAL 1. This is an appeal against the judgment of the Supreme Court of Appeal in The Citizen v McBride [2010] ZASCA 5 (26 February 2010).1 Mr McBride made ten claims for defamation and injuria against the owner, editor and two journalists of The Citizen for repeatedly publishing two defamatory statements about him in September and October 2003. The first was that he was a murderer who had murdered three women by planting a car bomb outside Magoo’s Bar in Durban in 1986. The second was that he had been arrested and detained in Mozambique in 1998 on suspicion of gun-running. 2. The High Court upheld all the claims. The SCA upheld the murder claims by a majority. Streicher JA delivered the majority judgment and Ponnan JA delivered a separate concurring judgment while Mthiyane JA delivered a dissenting judgment. They unanimously dismissed the gun-running claims. 3. Both sides seek leave to appeal to this court against the SCA judgment insofar as it went against them. In accordance with the directions of this court of 8 April and 3 May 2010, we confine these submissions to the applicants’ appeal against the SCA’s decision to uphold the murder claims. 1 SCA Judgment vol 9 p 774 5 4. The Citizen made the murder statements in the course of its campaign in September and October 2003, against Mr McBride’s appointment as Chief of Police of Ekurhuleni. It said that he was not suited for this position because he was a murderer. The SCA held that the critical question was whether it was true to say of Mr McBride that he was a murderer. It was common cause that he had indeed committed murder by his participation in the Magoo’s Bar bombing but had received amnesty for it in terms of s 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The SCA held that, in terms of the TRC Act, perpetrators who received amnesty for the offences they had committed, “should be considered not to have committed the offences”2 and that the statement that Mr McBride was a murderer was therefore false.3 5. We shall submit that the SCA erred in its interpretation of the TRC Act. Sections 20(7) to (10) circumscribe the effect of amnesty. A perpetrator is relieved of further civil and criminal liability for the crime he committed. If he has been convicted of it, his conviction “shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place”. It is merely his previous conviction if he has one, which is deemed not to have taken place. The underlying historical fact of his commission of the offence, remains unaffected. If he committed murder, he remains a murderer because a murderer is someone who committed murder, whether he was convicted of it or not. 2 SCA Judgment vol 9 p 704 para 30 3 SCA Judgment vol 9 p 706 para 33 6 THE BACKGROUND 6. The background facts are common cause. The High Court summarised them in paragraphs 2 to 4 of its judgment4 and the SCA adopted its summary in paragraph 22 of its judgment.5 “[2] At all material times during 1986 plaintiff was a member of Mkhonto we Sizwe (“MK”), a military wing of the African National Congress which was then involved in an armed struggle for political liberation against the apartheid security forces of the Republic of South Africa. On 14 June 1986 a unit of MK under the leadership of the plaintiff and acting within the context of the liberation struggle as aforesaid, carried out an attack by planting and exploding a car bomb outside the Magoo’s Bar / Why Not Restaurant, in Durban and as a result whereof three female patrons were killed and many other patrons were injured. Plaintiff was subsequently arrested, charged and convicted and sentenced to death in 1987 for the three counts of murder and 79 counts of attempted murder and other charges related to the operation. [3] After some four years in death row, plaintiff was reprieved from the death sentence in 1991 and on 28 September 1992 he was released from prison. Plaintiff applied for amnesty to the TRC (Truth and Reconciliation Commission) which was granted on 19 April 2001 in terms of section 20 of the Promotion of National Unity and Reconciliation Act No 34 of 1995 (the TRC Act) for his conduct in the armed struggle including the attack on the Magoo’s Bar / Why Not Restaurant which was carried out on 14 June 1986 and for which he was convicted and sentenced to death and subsequently reprieved. 4 High Court Judgment p 642 paras 2 to 4 5 SCA Judgment vol 9 p 699 para 22 7 [4] During March 1998 plaintiff was arrested and detained for six months in Mozambique on allegations or suspicions of espionage, criminal conspiracy and gunrunning and was subsequently released without being charged after the allegations against him were quashed by the Supreme Court of Mozambique. At the time plaintiff was employed as a foreign affairs representative for the National Intelligence Coordinating Committee (NICCO) Plaintiff had travelled to Mozambique in his private or personal capacity.’ 7. Further particulars of this background appear from, - the judgment of Corbett JA who upheld Mr McBride’s sentence on appeal to the Appellate Division in S v McBride 1988 (4) SA 10 (A); - Mr McBride’s application for amnesty of 10 April 1997 in volume 7 page 589 and particularly at pages 593 to 597; - the Amnesty Committee’s decision of 19 April 2001 in volume
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