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 6 page 511 at
page 534 section M, and
- the Amnesty Committee’s letter of 19 April 2001 in volume 7 page 600 at
page 605 paragraph (xii). 8
THE CONTROVERSIAL STATEMENTS
The controversy
8. In September and October 2003 Mr McBride was a candidate for appointment as
Chief of Police of the Ekurhuleni Metropolitan Municipality. The Citizen
campaigned against his appointment.
The “McBride tipped” article
9. The Citizen started its campaign with a front page lead published on Wednesday
10 September 2003 under the headline “McBride tipped to head Metro cops”.6
10. The article opened by identifying Mr McBride as the person who had bombed
Magoo’s Bar and announced that he could be appointed as the Ekurhuleni Chief
of Police:
“Robert McBride – former operative in the ANC’s military wing, Umkhonto we
Sizwe, who bombed a Durban bar in 1986, killing several people including
three women – could be heading to the Ekurhuleni Metro as Chief of Police.”
11. After elaborating on the news that he was a candidate for appointment as Chief
of Police, the article described his participation in the Magoo’s Bar bombing and
the subsequent amnesty he received for it:
6 “McBride tipped” article 10 September 2003 vol 6 p 549 9
“McBride, as an MK operative, was attached to a Special Operations Unit.
He served four years on death row after being convicted for the car bomb
explosion at the Magoo’s and Why Not bars near the Durban beachfront in
1986.
He was widely condemned for the attack on what was widely perceived to be
a ‘soft’ civilian target though McBride insisted that the pub was frequented by
SADF military personnel from a nearby barracks. No soldiers were killed or
injured in the massive explosion.
Later McBride applied for and was granted amnesty for the attack by the
Truth and Reconciliation Commission (TRC) due largely to the fact that the
ANC claimed it had ordered McBride to attack the pubs, contrary to its initial
denials that it was involved in the bombing.
But as McBride was deemed to be acting on the orders of a political
organisation he qualified for amnesty.”
The “No comment” article and “Here comes McBride” editorial
12. On Thursday 11 September 2003, the day after publication of the “McBride
tipped” article, The Citizen carried an article headed “No comment on McBride”7
and an editorial headed “Here comes McBride”.8
13. The “No comment” article reported that the Ekurhuleni Municipality had declined
to comment on Mr McBride’s candidacy for appointment as Police Chief. It again
7 “No comment” article 11 September 2003 vol 6 p 551
8 “Here comes McBride” editorial vol 1 p 17 10
described his role in the Magoo’s Bar bombing and the amnesty he had received
for it:
“McBride, current director at the Department of Foreign Affairs and head of
consular services, was sentenced to death during the apartheid era for his
role in the bombing of a Durban beachfront bar.
The sentence was later commuted. The Truth and Reconciliation
Commission also granted him amnesty.”
14. The “Here comes McBride” editorial commented on his candidacy as follows:
“Robert McBride’s candidacy for the Ekurhuleni Metro Police Chief is
indicative of the ANC’s attitude to crime.
They can’t be serious.
He is blatantly unsuited, unless his backers support the dubious philosophy:
Set a criminal to catch a criminal.
Make no mistake, that’s what he is. The cold-blooded multiple murders which
he committed in the Magoo’s Bar bombing put him firmly in the category.
Never mind his dubious flirtation with alleged gun dealers in Mozambique.
Those who recommended him should have their heads read.
McBride is not qualified for the job.
If he is appointed, it will be a slap in the face for all those crime-battered folk
on the East Rand who look to the government for protection.” 11
15. Mr McBride bases his claims A and B on this editorial.9
The first Williams article
16. A week later on Thursday 18 September 2003, The Citizen published an article
by the third applicant Mr Williams, headed “Beware ambush broadcasters
operating under false pretences”.10
17. Mr Williams said in the article that he had been invited to participate in a radio
debate “about forgiving people such as Alan Boesak, Winnie Madikizela-
Mandela, Robert McBride, etc.” which turned out to be a debate on The Citizen’s
“McBride tipped” article and “Here comes McBride” editorial. After commenting
on the debate, he continued as follows:
“If anyone wants my opinion about Robert McBride and forgiveness, here it
is.
Forgiveness is intensely personal. Each individual makes their own decision.
If you don’t forgive, you harm yourself. That’s why to forgive is divine.
I have no relationship with Robert McBride. It is not for me to forgive him.
But his track record as a multiple murderer and a suspect in gun dealing
make him unsuitable as a metro police chief in a country wracked by crime.
9 Particulars of Claim vol 1 p 5 paras 11 to 15
10 First Williams article 18 September 2003 vol 1 p 18 12
Forgiveness presupposes contrition. McBride still thinks he did a great thing
as a ‘soldier’, blowing up a civilian bar.
He’s not contrite. Neither are Winnie or Boesak. They are not asking for
forgiveness.
Boesak wants a pardon for something he says he didn’t do. That defies logic.
Those who want to forgive McBride don’t have to push for him to get this
sensitive job. The two issues are separate.
In fact our comment was not about forgiveness but rather about suitability.”
18. Mr McBride’s claims C and D are based on this article.11
The “Bomber McBride” article
19. The next day Friday 19 September 2003, Mr McBride’s attorneys sent a letter of
demand to The Citizen claiming compensation for the defamatory statements
made about him in the “Here comes McBride” editorial and the first Williams
article.12 The Citizen reported on the letter of demand in a front page lead
published the following Monday 22 September 2003.13
20. The article opened by saying that,
11 Particulars of Claim vol 1 p 8 paras 16 to 21
12 Letter 19 September 2003 vol 6 p 556
13 “Bomber McBride” article 22 September 2003 vol 1 p 20 13
“Magoo’s bomber Robert McBride is threatening to sue The Citizen for
R600 000 for alleged ‘defamatory and insulting remarks’ about his suitability
for the post of Ekurhuleni Metro Police Chief”.
21. It went on to describe the letter of demand and recounted what it had said in the
“Here comes McBride” editorial:
“In the original editorial, the Citizen said he was: ‘blatantly unsuited, unless
his backers support the dubious philosophy: set a criminal to catch a
criminal.
‘Make no mistake that’s what he is. The cold-blooded multiple murders which
he committed in the Magoo’s Bar bombing put him firmly in that category.
Never mind his dubious flirtation with alleged gun dealers in Mozambique.
‘Those who recommend him should have their heads read.
‘McBride is not qualified for the job.
‘If he is appointed it will be a slap in the face for all those crime-battered folk
on the East Rand who look to the government for protection.’”
22. It later added that,
“McBride was found guilty of the 1986 Durban bombings in which three
civilian women were killed. 14
He was released in September 1992, at the same time as multiple murderer
Barend Strydom.”
23. Mr McBride’s claims E and F are based on this article.14
The President’s letter
24. Almost a month later on Friday 17 October 2003 President Mbeki entered the
debate by criticising The Citizen in his weekly letter published on the internet, for
its publication of the “McBride tipped” article and “Here comes McBride”
editorial.15 The sting of his criticism was that “it would be fundamentally wrong
that (Mr McBride) is denied the possibility to be appointed to any position, simply
because of what he did during our struggle for liberation, for which he apologised
and for which he was granted amnesty.”16 He suggested that The Citizen had
undermined the work of the TRC.17
25. In response to his criticism, The Citizen published the following editorial and
three articles in the course of the following week.
14 Particulars of Claim vol 1 p 10 paras 22 to 26
15 President’s letter 17 October 2003 vol 7 p 581
16 President’s letter 17 October 2003 vol 7 p 581 at p 585 line 26 to p 586 line 2
17 President’s letter vol 7 p 581 at p 586 line 4 to p 588 line 22 15
The “Thabo Mbeki’s straw man” editorial
26. On Monday 20 October 2003 The Citizen responded to the President’s criticism
in an editorial under the heading “Thabo Mbeki’s straw man”.18
27. It opened as follows:
“You might think our globe-trotting leader, presiding over a party ridden by
conflict, would have more important things to do than endorse bomber Robert
McBride’s right to become Ekurhuleni Metro Police Chief.
Yet Thabo Mbeki devotes his weekly internet newsletter to that dubious
cause and to denigrating the Citizen.”
28. After criticising the President, the editorial continued as follows:
“In his usual circuitous, obfuscatory language, Mbeki hints darkly at ‘the grave
implications of what The Citizen is seeking to achieve’.
He then wanders off down a side road of his own making, about attitudes to
the TRC and ‘the path of national reconciliation’.
Rubbish.
Our coverage was aimed solely at making the irrefutable point that McBride is
unsuitable to head any decent police force.
We stand by that opinion.”
18 “Thabo Mbeki’s straw man” editorial 20 October 2003 vol 1 p 22 16
29. This is one of two editorials on which Mr McBride bases his claims G and H.19
The Kenny article
30. On Tuesday 21 October 2003 The Citizen published an article by the fourth
applicant, Mr Kenny.20 It was also written in response to the President’s letter.
31. Mr Kenny noted that the President devoted his weekly newsletter to an attack on
The Citizen for suggesting that Mr McBride was unsuitable for high office in the
police and continued as follows:
“The three most notorious non-governmental killers of the late apartheid
period were Clive Derby-Lewis, Barend Strydom and Robert McBride.
Each was a wicked coward who obstructed the road to democracy.
Derby-Lewis, who targeted a specific political enemy, Chris Hani, is the only
one not to be freed. The other two killed innocent people.
Strydom looked his helpless victims in the eyes before he murdered them.
McBride did not even do this. He planted a bomb in a bar and slunk off, not
caring whether it killed men, women or children.
It was the act of human scum”.
19 Particulars of Claim vol 1 p 10 paras 27 to 32
20 Kenny article 21 October 2003 vol 1 p 24 17
32. After a reference to Mr Nelson Mandela, the article continued as follows:
“McBride’s bomb was planted in 1986, at a time when apartheid was clearly
in retreat and when legal avenues of resistance were opening up.
His murder of the innocent women strengthened the hand of die-hard
apartheid supporters, and had the effect of prolonging the wretched regime.”
33. The next portion of the article was devoted to a refutation of the President’s
accusation that The Citizen undermined the TRC project. It returned to Mr
McBride and concluded as follows:
“If the ANC regards Robert McBride as a hero of the struggle, it should erect
a statue of him – perhaps standing majestically over the mangled remains of
the women he slaughtered.
If he wants to serve the community, he should work among aids orphans or
help to improve the provision of pensions to the poor.
He should most certainly not be made a policeman.”
34. Mr McBride’s claim I is based on this article.21
21 Particulars of Claim vol 1 p 12 paras 33 to 38 18
The second Williams article
35. Mr Williams added his comment on the President’s defence of Mr McBride in his
second article published on Wednesday 22 October 2003.22 The article was
devoted in the main to a refutation of the President’s criticism that The Citizen
undermined the work of the TRC.
36. It opened by drawing the connection between Mr McBride’s case and the work of
the TRC:
“Hands up if you believe Thabo Mbeki is a champion of reconciliation and a
defender of the Truth and Reconciliation Commission.
That’s the image put forward in his support for Robert McBride as Ekurhuleni
Metro Police Chief.”
37. The article continued to address this theme and later returned to Mr McBride:
“Mbeki’s support for bomber McBride is consistent with his long-held view
that any liberation force action was justified.
This unfeeling attitude doesn’t help genuine reconciliation. For example, in
his latest weekly internet newsletter he airbrushes over the horrible reality of
McBride’s deed in murdering civilians.”
22 Second Williams article 22 October 2003 vol 1 p 19 19
38. This is the second of the two Williams articles upon which Mr McBride bases his
claims C and D.23
The Ngonyama article
39. On Friday 24 October 2003 The Citizen published an article on the controversy
by the ANC spokesman Mr Smuts Ngonyama under the headline “Can country
afford this self-destruction?”24
40. Mr Ngyonyama said that,
“The pervasive question that begs an answer is whether Robert McBride
should ever be forgiven by the nation for his role in the liberation struggle that
resulted in the loss of life.”
41. He criticised The Citizen for suggesting that the amnesty granted to Mr McBride
was of no value:
“The articles carried by The Citizen suggesting the amnesty granted to
Robert McBride is of no value, and that he will continue to be judged by the
crimes for which he was pardoned, suggest the entire reconciliation process
was a one-way street.”
23 Particulars of Claim vol 1 p 8 paras 16 to 21
24 The Ngonyama article 24 October 2003 vol 6 p 564 20
The “McBride cops job” editorial
42. On 30 October 2003 The Citizen published an editorial headed “McBride cops
job” which concluded the debate because Mr McBride’s appointment as Police
Chief of Ekurhuleni had been made.25 It said the following:
“We believe we performed a civic duty on September 10 by alerting readers
to the possibility that Robert McBride could be named Ekurhuleni’s Metro
Police chief.
We said he was not the right person for the job. We maintain that view, as do
a great many readers.
But obviously a decision had already been taken.
President Mbeki even devoted one of his lengthy internet messages to
defending McBride and attacking The Citizen.
The bomber has support in high places, but that doesn’t detract from the evil
of his multiple murders, or make him a suitable policeman.
His appointment speaks volumes about the ANC’s attitude to crime.
God help Ekurhuleni.”
43. This is the second of the two editorials on which Mr Mc Bride bases his claims G
and H.26
25 “McBride cops job” editorial 30 October 2003 vol 1 p 23
26 Particulars of Claim vol 1 p 10 paras 27 to 32 21
THE MEANING OF THE CONTROVERSIAL STATEMENTS
44. Mr McBride’s case is that all the controversial statements were intended and
understood to bear one or more of the meanings ascribed to them in paragraph
13 of his particulars of claim.27
45. The following rules must be borne in mind in the determination of what the
controversial statements conveyed to the readers of The Citizen:
45.1. The test is objective. The court asks what meaning the words would
convey to the ordinary reader of the newspaper.28
45.2. It has regard to the qualities and knowledge of the ordinary reader of the
newspaper. The kind and quality of the readership “is as much part of
the context in which the alleged defamation occurs as the other words
contained in the article are”.29
27 Particulars of Claim vol 1 p 6 paras 13, 19, 24, 30 and 36; Defendant’s Request for Further Particulars vol 1 p 37 paras 3 to 6; Plaintiff’s Further Particulars vol 1 p 42 paras 8 to 10
28 Johnson v Beckett 1992 (1) SA 762 (A) 773B to D; Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA) paras 25, 26, 79 and 80; NEHAWU v Tsatsi 2006 (6) SA 327 (SCA) para 8
29 See the references in the previous footnote 22
45.3. The court takes account “not only of what the words expressly say, but
also what they imply”.30
45.4. Despite the fact that the same words may convey different things to
different people, the court attributes a single meaning to them. This
“single meaning rule” is well-established in English law.31 The SCA
recently adopted and applied an aspect of the rule in Tsedu.32 Its logic
is that one determines meaning through the eyes of a single notional
reader of the newspaper and not those of the actual readers who might
read it in different ways.
46. We submit that the ordinary reader of The Citizen would have understood the
controversial statements to mean that Mr McBride is not fit for appointment as
Ekurhuleni Chief of Police because he is a murderer despite the amnesty he
received for the murders he committed.
47. Mr McBride chose to sue on the articles and editorials which did not expressly
mention that he had received amnesty for the murders. The ordinary reader
30 Argus Printing and Publishing Co v Esselen’s Estate 1994 (2) SA 1 (A) 20E to G; Sindani v Van der Merwe 2002 (2) SA 32 (SCA) para 11; Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA) para 25
31 Charleston v Newsgroup Newspapers [1995] 2 AC 65 (HL) paras 71 to 72 and 73 to 74; Bonnick v Morris [2003] 1 AC 300 (PC) para 21
32 Tsedu v Lekota 2009 (4) SA 372 (SCA) paras 13 and 14 23
would however have known about it and understood it to be the premise of the
entire debate:
47.1. The Magoo’s Bar bombing, Mr McBride’s role in it and his amnesty for it,
are notorious facts of which most South Africans have knowledge. The
TRC said in the opening sentence of its report, that “All South Africans
know that our recent history is littered with some horrendous
occurrences” of which Magoo’s Bar was one.33 All South Africans or at
least those who read newspapers, know that civilians were killed in the
bombing of the bar and that Mr McBride was convicted and sentenced
to death but later received amnesty for his role in it. These events
received intense publicity at the time of the bombing in 1986, during Mr
McBride’s trial in 1987, when he was reprieved in 1992, when he was
appointed to the Department of Foreign Affairs in 1995, when he was
arrested, detained and later released on charges of gun-running in
Mozambique in 1998, when his amnesty application was heard in 1999
and when he was granted amnesty in 2001.
47.2. When it became known in September 2003 that he was a candidate for
appointment as Ekurhuleni Chief of Police, The Citizen reminded its
readers of these facts in its “McBride tipped” front page lead published
on 10 September 2003.34 It gave prominence to the Magoo’s Bar story,
33 TRC Report vol 1 chap 1 p 1 para 1
34 “McBride tipped” article 10 September 2003 vol 6 p 549 24
Mr McBride’s role in it and the amnesty he received for it. This report
set the scene for the public debate that followed.
47.3. The next day’s paper carried both the “No comment” article35 and the
“Here comes McBride” editorial.36 The “No comment” article reminded
readers of the fact that the TRC had granted Mr McBride amnesty for
the murders he had committed. The “Here comes McBride” editorial
commented on his fitness for office in the light of the murders he had
committed.
47.4. The first Williams article published a week later on 18 September 2003,
debated whether Mr McBride should be forgiven – a clear allusion to the
fact that he had received official “forgiveness” in the form of TRC
amnesty.37
47.5. The “Bomber McBride” article published on 22 September 2003 in
response to Mr McBride’s letter of demand, repeated the substance of
the “Here comes McBride” editorial.38
35 “No comment” article 11 September 2003 vol 6 p 551
36 “Here comes McBride” editorial 11 September 2003 vol 1 p 17
37 First Williams article 18 September 2003 vol 1 p 18
38 “Bomber McBride” article 22 September 2003 vol 1 p 20 25
47.6. That was where the matter rested for almost a month until the President
entered the debate by his letter published on the internet on Friday
17 October 2003.39 The basis on which he criticised The Citizen, was
that Mr McBride had received amnesty for his role in the Magoo’s Bar
bombing.40 He suggested that The Citizen had undermined the work of
the TRC.41
47.7. Following the President’s attack, The Citizen carried,
- the “Thabo Mbeki’s straw man” editorial on Monday 20 October
2003;42
- the Kenny article on Tuesday 21 October 2003;43
- the second Williams article on Wednesday 22 October 2003;44 and
- the Ngonyama article on Thursday 24 October 2003.45
39 President’s letter 17 October 2003 vol 7 p 581
40 President’s letter vol 7 p 581 at p 582 line 22 to p 583 line 2, p 584 lines 3 to 10 and p 585 line 26 to p 586 line 3
41 President’s letter vol 7 p 581 at p 586 line 4 to p 588 line 22
42 “Thabo Mbeki’s straw man” editorial 20 October 2003 vol 1 p 22
43 Kenny article 21 October 2003 vol 1 p 24
44 Second Williams article 22 October 2003 vol 1 p 19
45 Ngonyama article 24 October 2003 vol 6 p 564 26
47.8. This editorial and articles all engaged with the President’s criticism of
The Citizen that it had undermined the work of the TRC by its campaign
against Mr McBride’s appointment despite the amnesty he had received
for the murders he had committed. This entire debate was focussed on
the amnesty and its implications. The Ngonyama article made express
mention of it.
47.9. The “McBride cops job” editorial of 30 October 2003 concluded the
debate without adding anything to it.46
48. Mr McBride’s particulars of claim correctly identify the sting of the controversial
statements to be that he is not suited for the position of Ekurhuleni Chief of
Police because he is a murderer despite the amnesty he received for the
murders he had committed.47 Naturally, this formulation of the plaintiff’s claim
presupposes knowledge on the part of The Citizen’s readers of both the murder
and the amnesty, and also sets the basis for the comment as to his suitability for
that office.
46 “McBride cops job” editorial 30 October 2003 vol 1 p 23
47 Particulars of Claim vol 1 p 6 paras 13.1 to 13.8, 19, 24, 30 and 36; Defendant’s Request for Further Particulars vol 1 p 37 paras 3 to 6; Plaintiff’s Further Particulars vol 1 p 42 paras 8 to 10 27
THE CITIZEN’S DEFENCE
49. The Citizen raised a defence of fair comment.48 The requirements of such a
defence are that,
- the statement must constitute comment or opinion;
- it must be “fair”;
- the factual allegations on which the comment is made or opinion expressed,
must be true, and
- the comment or opinion must relate to a matter of public interest.49
50. The statement that Mr McBride was not fit to be the Chief of Police of Ekurhuleni,
was clearly comment on a matter of public interest.50
51. The comment was “fair” in that it was objectively “an honest, genuine (though
possibly exaggerated or prejudiced) expression of opinion relevant to the facts
on which it was based, and not disclosing malice”.51
48 Plea vol 1 p 26 paras 9.2, 14.2, 17.3, 22.2 and 26.2; Plaintiff’s Request for Further Particulars vol 1 p 32 paras 2 to 6; Defendant’s Further Particulars vol 1 p 34 paras 2 to 6
49 Hardaker v Phillips 2005 (4) SA 515 (SCA) para 26
50 SCA Judgment (Mthiyane JA) vol 9 p 721 paras 62 to 63, p 724 para 67 and p 735 paras 83 to 84
51 Johnson v Beckett 1992 (1) SA 762 (A) 783B; Hardaker v Phillips 2005 (4) SA 515 SCA paras 32 and 33; SCA Judgment (Mthiyane JA) vol 9 p 726 paras 69 to 70 28
52. The only question is whether the facts on which the comment was made, were
true. The SCA held that the statement that Mr McBride was a murderer despite
the amnesty he had received for the murders he had committed, was a
statement of fact. The question is accordingly whether it was true.
53. It is common cause that Mr McBride committed murder by his participation in the
Magoo’s Bar bombing. He confirmed it in his evidence:
“... at the date that you went there you put a car outside a bar with a bomb in
it. - Yes I did do that.
And you detonated the bomb. - Yes I did do that.
And it killed three women. - Yes I did do that.”52
54. The only remaining question is whether the amnesty granted to him rendered
this fact untrue. That is the question to which we now turn.
52 McBride vol 1 p 188 lines 11 to 14. See also McBride vol 2 p 115 lines 17 to 20 and p 187 lines 23 to 26 29
THE SCA’S FINDING
If the Party could thrust its hand into the past and say of this or that event,
it never happened --- that, surely, was more terrifying than mere torture and death? ...
And if all others accepted the lie which the Party imposed --- if all records told
the same tale --- then the lie passed into history and became truth.
George Orwell “1984” Part 1, Chapter 3
The finding
55. Streicher JA posed the question in paragraph 23 of his judgment, whether the
amnesty granted to Mr McBride “rendered the statement that he was a murderer
false”.53 He considered this question in paragraphs 23 to 33 and concluded,
- that people to whom amnesty had been granted for offences committed in the
course of the conflicts of the past “should be considered not to have
committed the offences”;54 and
- that The Citizen’s statement that Mr McBride is a murderer “is therefore
false”.55
53 SCA Judgment vol 9 p 700 para 23
54 SCA Judgment vol 9 p 704 para 30
55 SCA Judgment vol 9 p 706 para 33 30
56. Ponnan JA considered the same question in paragraphs 85 to 95 of his
concurring judgment.56 He also concluded in paragraphs 93 that The Citizen’s
statement that Mr McBride is a murderer, is false.57
57. Mthiyane JA considered the same question in paragraphs 73 to 82 of his
dissenting judgment.58 He concluded in paragraph 82 that The Citizen’s
statement that Mr McBride is a murderer, remains true as a matter of fact. The
effect of his amnesty was merely to relieve him of the civil and criminal legal
consequences of his crimes.59
58. We shall submit with respect that the dissenting opinion of Mthiyane JA is the
correct one. Before doing so, we consider some of the implications of the
majority’s finding.
The implications
59. The majority finding of the SCA that people who committed crimes are now
considered not to have committed them and that it is false to say that they did, is
far-reaching in its scope and implications. We submit it renders the TRC Act
unconstitutional.
56 SCA Judgment vol 9 p 737 paras 88 to 95
57 SCA Judgment vol 9 p 741 para 93
58 SCA Judgment vol 9 p 728 paras 73 to 82
59 SCA Judgment vol 9 p 734 para 82 31
60. The SCA’s finding embraces all crimes for which the TRC granted amnesty and
not only those committed in the struggle for liberation. It also includes the crimes
committed in defence of the apartheid state against the struggle for liberation.
61. The SCA’s finding is not limited to any particular context or any particular
purpose. The crimes for which amnesty was granted, are in all circumstances
and for all purposes deemed not to have been committed and it is always false to
say that they were committed whatever the circumstances or purpose for which it
is done.
62. It means that we must always and for all purposes pretend,
- that Dirk Coetzee, Almond Nofomela and David Tshikalanga did not murder
attorney Griffiths Mxenge;
- that Craig Williamson did not murder Ruth First and Jeanette Schoon by
having them assassinated;
- that Eugene de Kok did not participate in the murder of the Cradock Four;
- that Adrian Vlok never committed a crime by ordering the bombing of Khotzo
House and Cosatu House; and
- that Eugene de Kok, Craig Williamson and Johan Coetzee did not commit a
crime by bombing the London offices of the ANC. 32
63. The SCA would for instance brand as false, the account of the murder of
attorney Griffiths Mxenge given by Deputy Chief Justice Moseneke in the
inaugural Griffiths and Victoria Mxenge Memorial Lecture he delivered on 10
October 2009:
“On the night of 19 November 1981, Boet Griffs was assassinated and his
body was severely mutilated in an act of barbaric savagery. His murderers
used three okapi knives, a hunting knife and a wheel spanner because they
were ordered not to kill him with a gun. They inflicted 45 lacerations and stab
wounds that pierced his body, lungs, liver and heart. They slit his throat and
cut off his ears. They ripped open his stomach. The magistrate who sat at the
inquest into his death found that his death was caused by ‘the act of some
unknown person or persons.
His murderers are now known. They are self confessed. They are Dirk
Coetzee, Almond Nofomela, Joe Mamasela, Brian Ngqulunga and David
Tshikalanga. All were policemen and agents of the apartheid governments’
death squads. In 1996, 15 years later the Amnesty Committee of the Truth
and Reconciliation Commission granted them amnesty. The record of the
hearing on the death of Griffiths Mxenge before the Amnesty Committee
contains the confessions of his murderers. The confessions make harrowing
reading. They amount to a chilling account of a state that had lost its way;
that had forsaken the rule of law and justice in favour of brutality, terror and
murder against its political adversaries.”60
60
www.nmmu.ac.za/documents/lectures/Griffiths_and_Victoria_Mxenge_Inaugural_Lecture_330_Octob er_2009.pdf 33
64. If the law demands that we pretend that these crimes were never committed and
renders it false to say that they were, then it is an attempt to obliterate the past
and rewrite history despite the SCA’s protestations to the contrary.61 It means
that our history must be written without acknowledgment of the criminality of its
atrocities and without paying tribute to the targets of those atrocities as the
victims or survivors of crime. It is an attempt to scrub clean the annals of history.
65. The law of defamation also sometimes precludes us from raising infamies of the
past despite their truth. But it does not render them untrue. It merely precludes
us from raising old skeletons which are no longer germane to any matter of
public interest. It permits us to raise them whenever they are germane to any
matter of public interest.62 The SCA’s finding goes much further. It renders the
truth false and precludes us from speaking it under any circumstances or for any
purpose.
66. This court has often said that the right to freedom of expression entrenched in
s 16 of the Constitution, lies at the heart of democracy and is valuable inter alia
for “its facilitation of the search for truth by individuals and society generally”.63
61 SCA Judgment vol 9 p 705 para 33 and p 740 para 93
62 Graham v Ker (1892) 9 SC 185; Botha v Pretoria Printing Works 1906 TS 710 at 715; Coetzee v Central News Agency 1953 (1) SA 449 (W) 452H to 453B; Pienaar v Argus Printing and Publishing Co 1956 (4) SA 310 (W) 322A to E; Yusaf v Bailey 1964 (4) SA 117 (W) 126G to 127C; Mahomed v Kassim 1973 (2) SA 1 (RA) 9F to 10H; Buthelezi v Poorter 1975 (4) SA 608 (W) 617C to E; Iyman v Natal Witness Printing and Publishing Company 1991 (4) SA 677 (N) 686C; Kemp v Republican Press 1994 (4) SA 261 (E) 265I to 266C; Khumalo v Holomisa 2002 (5) SA 401 (CC) para 36 footnote 38 63 SANDU v Minister of Defence 1999 (4) SA 469 (CC) para 7; Case v Minister of Safety and Security 1996 (3) SA 617 (CC) para 26; Khumalo v Holomisa 2002 (5) SA 401 (CC) para 21; Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) para 26; Phillips v DPP, WLD 2003 (3) SA 345 (CC) para 23; De Reuck v DPP, WLD 2004 (1) SA 406 (CC) para 59; Dikoko v Mokhatla 2006 (6) SA 235 (CC) para 138; SABC v NDPP 2007 (1) SA 523 (CC) paras 23 and 119 34
The SCA’s interpretation renders the TRC Act in fundamental breach of this right
in that it suppresses the truth by deeming it to be false and by rendering it
actionable to speak the truth under any circumstances or for any purpose
however compelling. Such a fundamental invasion of so important a right is not
justified in terms of s 36.
67. We submit with respect for the reasons that follow, that the SCA’s interpretation
is wrong. 35
THE LANGUAGE OF THE TRC ACT
68. The TRC Act spells out the consequences of amnesty in ss 20(7) to (10). This
court considered their meaning and implications in Du Toit.64 They do not bluntly
deem the crimes for which amnesty is granted, never to have been committed as
the SCA’s interpretation would have it. They provide for a range of specific and
carefully crafted consequences of amnesty.
69. Sections 20(7) and (9) govern the perpetrator’s civil liability for acts for which he
receives amnesty:
69.1. Section 20(9) preserves his outstanding liability under any civil judgment
based on those acts which was handed down before he received
amnesty.65
69.2. Section 20(7) immunises him against any future imposition of civil
liability for those acts.66
64 Du Toit v Minister of Safety and Security 2009 (6) SA 128 (CC) paras 31 to 56
65 Du Toit para 42
66 Du Toit para 40 36
70. Sections 20(7), (8) and (10) govern the perpetrator’s criminal liability for acts for
which he receives amnesty:
70.1. Section 20(7) immunises him against any future imposition of criminal
liability for those acts.67 It does not deem those acts not to have
occurred or not to have been criminal. On the contrary, s 20(7)(b)
makes it clear that amnesty does not protect the perpetrator’s
accomplices whose criminal liability is dependent on his.
70.2. Section 20(8) provides for perpetrators who are standing trial or who are
serving a custodial sentence, for acts for which they receive amnesty.
The pending proceedings are rendered void, the sentence if any lapses
and the perpetrator is released from custody. These consequences
only flow prospectively from the date of amnesty.68
70.3. Section 20(10) relates to the perpetrator’s previous conviction if any, for
acts for which he receives amnesty. It provides that,
- “any entry or record of the conviction shall be deemed to be expunged
from all official documents or records” and
- “the conviction shall for all purposes, including the application of any
act of parliament or any other law, be deemed not to have taken 67 Du Toit para 40
68 Du Toit para 41 37
place”.
71. We emphasize the following features of s 20(10):
71.1. It only benefits perpetrators who have been convicted of offences for
which they receive amnesty. It does not apply to those who committed
crimes of which they have never been convicted.
71.2. It only governs the status of the perpetrator’s previous conviction. It is
deemed to have been expunged from all official records and never to
have taken place.
71.3. It only operates prospectively. It does not undo the legal consequences
of the conviction already complete by the time amnesty is granted.69
72. None of the provisions of ss 20(7) to (10) says or implies that crimes for which
amnesty is granted, are deemed not to have been committed:
69 Du Toit para 52 38
72.1. They only relieve the perpetrator of some of the legal consequences of
his crime. They do not “restore the perpetrator, in every respect, to his
or her position prior to the commission of the offence”.70
72.2. They leave intact some of the significant legal consequences of the
perpetrator’s crime. They include all the completed legal consequences
visited upon the perpetrator, his outstanding liability under a civil
judgment already granted, and the characterisation of his past conduct
as criminal for purposes of the criminal liability of his accomplices.
72.3. They say nothing at all about the fact of the perpetrator’s past conduct
or its characterisation as criminal except that they expressly retain this
characterisation of his past conduct for purposes of the criminal liability
of his accomplices.
72.4. Section 20(10) in particular does not say that the perpetrator must be
deemed not to have committed the crime for which he received amnesty
It merely nullifies his previous conviction if any, and deems it never to
have taken place.
72.5. This understanding of s 20(10) is borne out by the fact that the section
only applies to perpetrators who have been convicted of the crimes for 70 Du Toit para 51 39
which they receive amnesty. It would be unbearably anomalous to interpret it to mean that their crimes must be deemed never to have been committed, without extending the same benefit to perpetrators who have never been convicted of the crimes for which they receive amnesty. 40
THE HISTORICAL PURPOSE OF THE TRC ACT
73. The SCA did not identify any particular provision of the TRC Act which says
expressly or by implication that crimes for which amnesty has been granted,
must be considered never to have been committed or that it is false to say that
they were. Its finding was based instead, on what it saw as the historical
purpose of the TRC Act. It found the purpose in the epilogue to the Interim
Constitution. It held that the purpose of the TRC Act was to grant amnesty to
perpetrators “to close the book on human rights transgressions of the past in
order to achieve reconciliation”. It inferred from this purpose, that the crimes of
the past for which amnesty is given, must be deemed never to have been
committed.71
74. We submit with respect that the SCA erred in its identification of the historical
purpose of the TRC Act. It was not merely to give effect to the amnesty promise
made in the epilogue to the Interim Constitution. Its ultimate objective was
indeed national reconciliation. But amnesty to perpetrators was not the only or
even the principal means by which it pursued that objective. It sought instead, to
find a balance between amnesty for perpetrators on the one hand and justice for
victims on the other. It found this balance in truth-telling. It sought to find, reveal
and preserve the truth about the past so that it might be remembered and never
be repeated.
71 SCA Judgment vol 9 p 702 paras 27 to 33 and p 737 paras 88 to 93 41
75. The Minister of Justice made this broader purpose clear when he introduced the
TRC Act in parliament. He recited the epilogue to the Interim Constitution and
continued as follows:
“I could have gone to Parliament and produced an amnesty law --- but this
would have been to ignore the victims of violence entirely. We recognised
that we could not forgive perpetrators unless we attempt also to restore the
honour and dignity of the victims and give effect to reparation. ...
The President believes --- and many of us support him in this belief --- that
the truth concerning human rights violations in our country cannot be
suppressed or simply forgotten. They ought to be investigated, recorded and
made known ....
There is a commitment to break from the past, to heal the wounds of the past,
to forgive but not to forget and to build a future on respect for human rights ...
I wish to stress that the objective of the exercise is not to conduct a witch
hunt or to drag violators of human rights before court to face charges.
However, it must be stressed that a commission is a necessary exercise to
enable South Africans to come to terms with their past on a morally accepted
basis and to advance the cause of reconciliation. I invited you to join in the
search for truth without which there can be no genuine reconciliation.”72
76. In response to the question why there should be a TRC, he referred to the
requirement of amnesty in the epilogue to the Interim Constitution and continued
72 Introduction by the Minister of Justice, Mr Dullah Omar http://www.justice.gov.za/trc/legal/justice.htm 42
as follows:
“But concern for perpetrators is not enough. There are many individuals,
families and communities who have suffered deeply as a result of human
rights violations. They deserve to know the truth as part of the healing
process. It is the search for truth which can create the moral climate in which
reconciliation and peace will flourish.” 73
77. The explanatory memorandum which accompanied the TRC Bill in parliament,
made the same point more than once:
77.1. It said that the purpose of the bill,
“is to bring about unity and reconciliation by providing for the
investigation and full disclosure of gross violations of human rights
committed in the past.
It is based on the principle that reconciliation depends on forgiveness
and that forgiveness can only take place if gross violations of human
rights are fully disclosed. What is, therefore, envisaged is
reconciliation through a process of national healing.”74
77.2. It described international experience on this score as follows:
73 Ibid
74 Explanatory Memorandum to the Parliamentary Bill www.justice.gov.za/trc/legal/bill.htm 43
“International experience shows that, if we are to achieve unity and
morally acceptable reconciliation, it is necessary that the truth about
gross violations of human rights must be:-
• established by an official investigation unit using fair
procedures;
• fully and unreservedly acknowledged by the
perpetrators;
• made known to the public, together with the identity of
the planners, perpetrators and victims.”75
78. Graeme Simpson explains how this evolution of the purpose of the TRC Act
came about:
“After the 1994 elections, the new Minister of Justice, Dullah Omar,
immediately signalled his intention to establish a TRC. Omar was aware that
the ‘postscript’ to the Constitution was binding, and accepted responsibility for
enacting legislation that would provide mechanisms and criteria for the
granting of amnesty. But, along with a strong, vocal and well-organised
human rights sector outside government, he was also concerned that
amnesty was a process geared essentially to the interests of perpetrators. If
South Africa was to come to terms with its past, build national reconciliation
and establish a society based on respect for human rights, the needs of
victims would have to be given equal weight.
75 Ibid 44
On this basis, it was argued that any amnesty process that was not accompanied by an attempt to disclose fully the nature of the crimes perpetrated, would have grave implications for the long-term prospects of sustainable democracy. In particular, amnesty would mean that the victims of abuse, on all sides of the political spectrum, would never have access to the information essential to their rehabilitation, let alone any prospect of redress under civil or criminal law. Without public acknowledgment or the possibility of restitution through the courts, there was a risk of widespread resentment and of private retribution --- despite the existence of a new democratic dispensation.
The TRC represented a creative response to these concerns. It was decided that the Commission would not only grant amnesty to perpetrators, but would also seek to establish the truth about past human rights violations, provide victims with some form of reparation, and make recommendations to the
President about measures the government should take to prevent any future recurrence of abuse. By foregrounding the interests of victims, the TRC would attempt to restore the moral balance to any amnesty agreement borne of political compromise. This fusion of amnesty with truth recovery and reparation was without precedent, and its objectives should be borne in mind during any evaluation of the TRC’s work. In a sense, truth recovery was viewed not so much as a trade for justice, but as an alternative restorative
(rather than punitive) approach to justice. In fact, conversations about the nature and quality of the historical truths recovered by the TRC go to the heart of the Commission’s restorative justice aspirations, both in respect of 45
the amnesty process for perpetrators and in respect of the testimonies by
survivors.”76
79. Alex Borraine,77 Colin Bundy,78 Deborah Posel and Graeme Simpson79 and the
TRC Report80 confirm this explanation. Colin Bundy summarises it as follows:
“Viewed within this reading of the negotiated settlement, the TRC emerged as
a crucial element of the historic compromise. More than that: Its own origins
involved an attempt to balance demands for disclosure and justice with an
existing commitment to a process of amnesty. The commitment to amnesty
was a ‘last minute compromise struck so late in the negotiation process that it
had to be included in a ‘Postamble’ tacked on to the end of the [Interim]
Constitution’; the commitment to parallel processes of an official
determination of the truth about past human rights abuses and some form of
reparation came after the 1994 elections.”81
Deborah Posel and Graeme Simpson note that the TRC was seen,
76 Graeme Simpson Tell no lies, claim no easy victories in Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission ed Deborah Posel and Graeme Simpson, Wits University Press (2001) 222 to 223
77 Alex Borraine The Language of Potential in After the TRC: Reflections on Truth and Reconciliation in SA ed Wilmot James and Linda van de Vijver, David Philip Publishers (2000)
78 Colin Bundy The beast of the past: History and the TRC in After the TRC: Reflections on Truth and Reconciliation in SA ed Wilmot James and Linda van de Vijver, David Philip Publishers (2000) 12
79 Deborah Posel and Graeme Simpson The Power of Truth in Commissioning the Past ed Deborah Posel and Graeme Simpson, Witwatersrand University Press (2001) 1 to 13
80 TRC Report vol 1 chap 4 p 49 paras 6 to 28
81 Op Cit, Bundy 12 46
“as a means of putting a divided and conflictual past behind the nation
through acknowledgment, rather than amnesia.”82
80. As a result of this evolution, truth-telling became the primary focus of the TRC
Act. Justice O’Regan described it as follows:
“... the primary focus of the TRC legislation was to establish the truth about
the past. The scheme, simply stated, was to encourage those perpetrators of
gross human rights violations to come forward and tell their story in full. Full
and frank disclosure entitled a perpetrator to apply for amnesty within the
scheme of the Act. Amnesty, of course, meant that a perpetrator escaped
prosecution, conviction and punishment. The absence of punishment means
vengeance is not exacted. ... In affording amnesty to those who confessed to
gross human rights violations and described them in full detail, the Act
foresaw retribution in favour of truth.”83
81. This court also identified this expanded objective of the TRC Act in Du Toit:
“The objective was to facilitate the establishment of as complete a picture as
possible of the causes, nature and extent of the gross violations of human
rights. In order to achieve this, the Reconciliation Act provides that amnesty
would be granted to perpetrators who make full disclosure of the facts relating
to acts committed with a political purpose during the period identified.
82 Op Cit, Posel et al 9
83 O’Regan History and Justice in Without Prejudice vol 9 no 4 (May 2009) 34 47
The grant of amnesty was to a certain extent a means to an end. Truth-
telling is central to the development of a collective memory and in order for
that truth to be told, amnesty was granted to those making disclosure about
offences that they had committed.”84
84 Du Toit v Minister for Safety and Security 2009 (6) SA 128 (CC) paras 19 to 20 48
THE SCHEME OF THE TRC ACT
82. The scheme of the TRC Act gives effect to its historical purpose. It strikes a
balance between the promise of amnesty to perpetrators on the one hand and
the need to do justice to their victims on the other. It does so by focusing on the
discovery, exposure and preservation of the truth about the past. It provides for
amnesty but it is not its only or even principal concern. On the contrary, it
employs its promise of amnesty as a means to assist in the discovery of the
truth.
83. It must moreover be borne in mind when one interprets its amnesty provisions,
that they fundamentally intrude upon the basic rights of victims. This court
recognised in Azapo that amnesty to wrongdoers “effectively obliterates” their
victims’ fundamental rights to civil and criminal retribution.85 The TRC Act is
accordingly,
“a difficult, sensitive, perhaps even agonising, balancing act between the
need for justice to victims of past abuse and the need for reconciliation and
rapid transfer to a new future; between encouragement to wrongdoers to
help in the discovery of the truth and the need for reparations for the victims
of that truth; between a correction in the old and the creation of the new.”86
85 Azapo v President of the RSA 1996 (4) SA 671 (CC) para 9
86 Azapo para 21 49
84. It was for this reason, “... important at the time that those coming forward to the
Truth and Reconciliation Commission and admitting to wrongs they had
committed did not receive the lion’s share of benefits from the process. The
Reconciliation Act carefully ensures this.”87
85. The provisions of the TRC Act make clear its shift of focus from mere amnesty to
perpetrators to a concern for justice to victims by seeking, revealing and
recording the truth.
86. The long title opens by saying that the purpose of the TRC Act is,
“To provide for the investigation and the establishment of as complete a
picture as possible of the nature, causes and extent of gross violations of
human rights committed during the period from 1 March 1960 to the cut-off
date contemplated in the Constitution, within or outside the Republic,
emanating from the conflicts of the past, and the fate or whereabouts of the
victims of such violations.”
It goes on to say that its purpose is also to grant amnesty but only to,
“Persons who make full disclosure of all the relevant facts relating to acts
associated with a political objective committed in the course of the conflicts of
the past during the said period.”
87 Du Toit v Minister for Safety and Security 2009 (6) SA 128 (CC) para 53 50
87. The preamble starts by referring to the constitutional injunction to build a bridge
between the past of a deeply divided society and a future founded on the
recognition of human rights, democracy and peaceful co-existence. It goes on to
describe the means by which the TRC Act pursues that objective. The first is,
“To establish the truth in relation to past events as well as the motives for and
circumstances in which gross violations of human rights have occurred, and
to make the findings known in order to prevent a repetition of such acts in
future.”
Amnesty is also mentioned as one of its objectives but clearly not as its only or even principal focus.
88. Section 2(1) establishes the “Truth and Reconciliation Commission” as the
vehicle by which this must be achieved. Even its name reflects its focus on the
truth. It is not called the “Amnesty Commission”.
89. Section 3(1) identifies the four objectives of the TRC. All of them reflect or are
aligned with the overall objective of discovering, revealing and preserving the
truth about the past:
89.1. The first is to establish “as complete a picture as possible of the causes,
nature and extent of the gross violations of human rights” of the past. 51
89.2. The second is to grant amnesty to perpetrators but only those “who
make full disclosure of all the relevant facts”.
89.3. The third is to establish and make known the fate or whereabouts of
victims and to restore their human and civil dignity “by granting them an
opportunity to relate their own accounts of the violations of which they
are the victims”.
89.4. The fourth is to compile a report which provides “as comprehensive an
account as possible” of the facts discovered in pursuit of the first,
second and third objectives and with recommendations of measures to
prevent the future violations of human rights.
90. The TRC’s functions described in s 4, follow the same pattern and elaborate on
its pursuit of its four objectives.
91. Section 11 lays down the principles which govern the TRC’s treatment of victims.
They emphasize the focus of its concern to bring justice to victims.
92. The TRC’s work is done through,
- the Committee on Human Rights Violations in terms of chapter 3; 52
- the Committee on Amnesty in terms of chapter 4; and
- the Committee on Reparation and Rehabilitation in terms of chapter 5.
93. The Committee on Human Rights Violations is victim oriented. Its principal
function in terms of s 14(1) is to gather evidence of the gross violations of human
rights of the past and to report to the TRC on them in terms of s 14(2).
94. Amnesty is the concern of the Committee on Amnesty but even its mandate
prioritises truth-telling:
94.1. It must investigate all applications for amnesty in terms of s 19(2). It is
given wide-ranging resources and powers to do so in terms of ss 28 to
32.
94.2. It may only grant amnesty for gross violations of human rights after a
hearing in terms of s 19(4) read with s 19(3)(b)(iii). Such a hearing must
ordinarily be held in public in terms of s 33.
94.3. It may only grant amnesty if it is satisfied in terms of s 20(1)(c) that the
applicant has made full disclosure of all the relevant facts. 53
94.4. If it does so, it must by proclamation in the Government Gazette make
known the full names of the person to whom amnesty is granted
together with sufficient information to identify the act, omission or
offence in respect of which it is granted.
95. On completion of its work, the TRC must submit a report to the President in
terms of s 43. He is obliged in terms of s 44 to bring the report “to the notice of
the Nation”. 54
THE IMPLEMENTATION OF THE TRC ACT
96. The TRC’s Final Report makes it clear that it understood and implemented the
TRC Act to give effect to its purpose reflected in its history and the scheme of its
provisions. Its focus was on finding, revealing and preserving the truth about the
past so that it may be remembered and not repeated. It granted amnesty to
perpetrators but on a basis designed to serve the overriding objective of finding,
exposing and preserving the truth. It sought closure for victims, perpetrators and
society at large, not by amnesia, but by truth-telling.
97. The chair of the TRC Archbishop Desmond Tutu eloquently explained in his
foreword why the TRC pursued national reconciliation through truth and not
amnesia:
“There were others who urged that the past should be forgotten --- glibly
declaring that we should ‘let bygones be bygones’. This option was rightly
rejected because such amnesia would have resulted in further victimisation of
victims by denying their awful experiences....
The other reason amnesia simply will not do is that the past refuses to lie
down quietly. It has an uncanny habit of returning to haunt one. ‘Those who
forget the past are doomed to repeat it’ are the words emblazoned at the
entrance to the museum in the former concentration camp of Dachau. They
are words we would do well to keep ever in mind ...
In our case, dealing with the past means knowing what happened. Who
ordered that this person should be killed? Why did this gross violation of 55
human rights take place? We also need to know about the past so that we
can renew our resolve and commitment that never again will such violations
take place. We need to know about the past in order to establish a culture of
respect for human rights. It is only by accounting for the past that we can
become accountable for the future.
For all these reasons, our nation, through those who negotiated the transition
from apartheid to democracy, chose the option of individual and not blanket
amnesty. And we believe that this individual amnesty has demonstrated its
value. One of the criteria to be satisfied before amnesty could be granted
was full disclosure of the truth. Freedom was granted in exchange for
truth. ...”88
98. He later elaborated on the reasons why the TRC sought reconciliation through
truth and not amnesia89 and said the following:
“The trouble is that there are erroneous notions of what reconciliation is all
about. Reconciliation is not about being cosy; it is not about pretending that
things were other than they were. Reconciliation based on falsehood, on not
facing up to reality, is not true reconciliation and will not last.”90
88 TRC Report vol 1 chap 1 p 7 paras 26 to 29
89 TRC Report vol 1 chap 1 p 17 paras 68 to 73
90 para 69 56
99. The TRC noted that, not only its report but its entire record including all the
evidence it had gathered, “will form a part of the national memory for generations
yet to come”.91 It emphasized the role of “acknowledgment” in this context:
“Acknowledgment refers to placing information that is (or becomes) known on
public, national record. It is not merely the actual knowledge about past
human rights violations that counts; often the basic facts about what
happened are already known, at least by those who were affected. What is
critical is that these facts be fully and publicly acknowledged.
Acknowledgment is an affirmation that a person’s pain is real and worthy of
attention. It is thus central to the restoration of the dignity of victims.”92
100. In its discussion of the relationship between truth and reconciliation93 the TRC
again refuted suggestions that “to forgive is to forget” and that they should “let
bygones be bygones” and “forget about the past and focus on the future”.
101. In their discussion of the relationship between amnesty, truth and justice,94 the
TRC explained that they had followed a middle path “between a Nuremberg
option and total amnesia” of “amnesty with a considerable degree of
91 TRC Report vol 1 chap 5 p 113 para 38
92 TRC Report vol 1 chap 5 p 114 para 45
93 TRC Report vol 1 chap 5 p 115 paras 46 to 52
94 TRC Report vol 1 chap 5 p 117 paras 53 to 79 57
accountability built into it”.95 While successful amnesty applicants could not be
punished,
“The impact of public acknowledgment should not be underestimated.
Perpetrators were not able to take refuge in anonymity or hide behind
national amnesia.”96
102. The TRC made it clear that its truth-seeking was not directed at disclosure only
to close the book on the past, but was on the contrary directed at ensuring that
society never forgot the atrocities of the past:
“The nation must use these stories to sharpen its moral conscience and to
ensure that, never again, will it gradually atrophy to the point where personal
responsibility is abdicated. The challenge is to develop public awareness, to
keep the memories alive, not only of gross violations of human rights, but of
everyday life under apartheid. Only in this way can South Africans ensure
that they do not again become complicit in the banality that leads, step by
step, to the kinds of outrageous deeds that have left many ‘good’ South
Africans feeling that they can never be expected, even indirectly, to accept
responsibility for them ...
Thus, a key pillar of the bridge between a deeply divided past of ‘untold
suffering and injustice’ and a future ‘founded upon the recognition of human
rights, democracy, peaceful co-existence, and development opportunities for
95 TRC Report vol 1 chap 5 p 118 para 59
96 TRC Report vol 1 chap 5 p 120 para 62 58
all’ is a wide acceptance of direct and indirect, individual and shared
responsibility for past human rights violations.”97
103. In line with its emphasis on remembering the past, the Commission’s very first
recommendation directed at prevention of gross human rights violations in the
future, was that all its records and reports which “form a rich contribution to the
public memory” should be made available to the public “in the widest possible
way”.98
104. An interesting and pertinent footnote to the manner in which the TRC
implemented its mandate under the TRC Act, is that it considered recommending
the disqualification or removal from public office of people who had been
implicated in violations of human rights. It considered this question carefully but
finally decided not to recommend it. It suggested however that,
“when making appointments and recommendations, political parties and the
state should take into consideration the disclosures made in the course of the
Commission’s work.”99
97 TRC Report vol 1 chap 5 p 133 paras 109 to 110
98 TRC Report vol 5 chap 8 p 308 para 14
99 TRC Report vol 1 chap 1 p 3 para 11 read with vol 5 chap 8 p 310 paras 17 to 19 59
105. The TRC thus considered it permissible and appropriate for the disclosures
about a perpetrator’s past gross human rights violations, to be taken into account
when he is considered for appointment to public office. 60
THE PROPER INTERPRETATION OF THE TRC ACT
106. We submit with respect that the SCA’s finding that the TRC Act by implication
deems crimes of the past never to have been committed and renders false any
statement that they did, is not to be found in the language of the TRC Act and is
profoundly inimical to its purpose as revealed by its history, scheme and
implementation.
107. Its principal focus is directed at finding, exposing and preserving the truth about
the past. Perpetrators are rewarded with amnesty but only in return for
disclosing the truth. Victims are rewarded with the truth in return for relinquishing
their moral and legal claim to retributive justice. National reconciliation is
pursued through and on the basis of the truth. The truth is recorded, published,
preserved and remembered to avoid a repetition of the past.
108. It is intolerable to suggest that the very same TRC Act which offers truth as the
panacea to victims in return for their moral and legal claim to retributive justice,
truth as the stepping stone towards national reconciliation and truth as the
safeguard against repetition of the atrocities of the past, should at the same time
and in the same breath suppress the truth by deeming it to be false and by
rendering its disclosure an actionable falsehood. 61
109. It does not mean that perpetrators who have received amnesty for their crimes,
may forever be branded criminal. The common law of defamation determines
when it may be done and when not. The disclosure of past infamies and old
scandals is not permissible if it is no longer germane to a matter of public
interest. Only if and when it remains germane to a matter of public interest, may
the disclosure be made.100 It is such an occasion when a murderer is a
candidate for appointment to the public officer of Chief of Police. Views may
differ on his fitness for office in the light of his criminal past. But it is germane to
the issue and may lawfully be raised.
100 Graham v Ker (1892) 9 SC 185; Botha v Pretoria Printing Works 1906 TS 710 at 715; Coetzee v Central News Agency 1953 (1) SA 449 (W) 452H to 453B; Pienaar v Argus Printing and Publishing Co 1956 (4) SA 310 (W) 322A to E; Yusaf v Bailey 1964 (4) SA 117 (W) 126G to 127C; Mahomed v Kassim 1973 (2) SA 1 (RA) 9F to 10H; Buthelezi v Poorter 1975 (4) SA 608 (W) 617C to E; Iyman v Natal Witness Printing and Publishing Company 1991 (4) SA 677 (N) 686C; Kemp v Republican Press 1994 (4) SA 261 (E) 265I to 266C; Khumalo v Holomisa 2002 (5) SA 401 (CC) para 36 footnote 38 62
PRAYER
110. The applicants ask for an order in the following terms:
110.1. The applicants are given leave to appeal and their appeal is upheld with
costs including the costs of three counsel.
110.2. The orders of the SCA are set aside and replaced with an order
upholding the appeal with costs including the costs of two counsel.
110.3. The orders of the High Court are set aside and replaced with the
following order: “The plaintiff’s claims are dismissed with costs.”
Wim Trengove SC
Shem Symon SC 63
Shanee Stein
Tosh Naidoo
Applicants’ counsel
Chambers
Sandton
7 May 2010 64
AUTHORITIES
Argus Printing and Publishing Co v Esselen’s Estate 1994 (2) SA 1 (A)
Azapo v President of the RSA 1996 (4) SA 671 (CC) para 9
Bonnick v Morris [2003] 1 AC 300 (PC)
Botha v Pretoria Printing Works 1906 TS 710
Buthelezi v Poorter 1975 (4) SA 608 (W)
Case v Minister of Safety and Security 1996 (3) SA 617 (CC)
Charleston v Newsgroup Newspapers [1995] 2 AC 65 (HL)
Coetzee v Central News Agency 1953 (1) SA 449 (W)
De Reuck v DPP, WLD 2004 (1) SA 406 (CC)
Dikoko v Mokhatla 2006 (6) SA 235 (CC)
Du Toit v Minister for Safety and Security 2009 (6) SA 128 (CC)
Graham v Ker (1892) 9 SC 185
Hardaker v Phillips 2005 (4) SA 515 (SCA)
Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC)
Iyman v Natal Witness Printing and Publishing Company 1991 (4) SA 677 (N)
Johnson v Beckett 1992 (1) SA 762 (A)
Kemp v Republican Press 1994 (4) SA 261 (E)
Khumalo v Holomisa 2002 (5) SA 401 (CC)
Mahomed v Kassim 1973 (2) SA 1 (RA)
Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA)
NEHAWU v Tsatsi 2006 (6) SA 327 (SCA)
Phillips v DPP, WLD 2003 (3) SA 345 (CC)
Pienaar v Argus Printing and Publishing Co 1956 (4) SA 310 (W)
SABC v NDPP 2007 (1) SA 523 (CC)
SANDU v Minister of Defence 1999 (4) SA 469 (CC) 65
Sindani v Van der Merwe 2002 (2) SA 32 (SCA)
Tsedu v Lekota 2009 (4) SA 372 (SCA)
Yusaf v Bailey 1964 (4) SA 117 (W)
Final Report of the Truth and Reconciliation Commission of South Africa (29 October 1998) http://www.justice.gov.za/trc/report/index.htm
Graeme Simpson Tell no lies, claim no easy victories in Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission ed Deborah Posel and Graeme Simpson, Wits University Press (2001) 222 to 223
Alex Borraine The Language of Potential in After the TRC: Reflections on Truth and Reconciliation in SA ed Wilmot James and Linda van de Vijver, David Philip Publishers (2000)
Colin Bundy The beast of the past: History and the TRC in After the TRC: Reflections on Truth and Reconciliation in SA ed Wilmot James and Linda van de Vijver, David Philip Publishers (2000) 12
Deborah Posel and Graeme Simpson The Power of Truth in Commissioning the Past ed Deborah Posel and Graeme Simpson, Witwatersrand University Press (2001) 1 to 13
O’Regan History and Justice in Without Prejudice vol 9 no 4 (May 2009) 34