FXI takes issue with McBride judgment

MELISSA MOORE

JOHANNESBURG - The Freedom of Expression Institute (FXI) disagrees fundamentally with the Supreme Court of Appeal’s ruling in the case of The Citizen v McBride.

The judgment has the effect of silencing legitimate and vital public comment on the human rights violations that took place during the apartheid era, under the guise of “reconciling” South African society. The court has, in our view, failed to distinguish between the forgiveness of past offences and the sweeping under the carpet of inconvenient, hard-hitting and truthful debate on a matter of manifest public interest, which objective is paramount in the pursuit of justice.

In or about 1986, Robert Mc- Bride was convicted of murder and sentenced to death for a bombing at Magoo’s Bar in Durban which resulted in the death of a number of innocent civilians. McBride was later granted amnesty by the Truth and Reconciliation Commission (TRC) in 2001.

In 1998 he was also arrested and charged with gun-running in Mozambique.

The Citizen published a series of articles on McBride when he was tipped as being the next Ekurhuleni Metro Police chief.

In the articles, The Citizen labelled McBride as criminal, a multiple murderer and as having had a dubious flirtation with gun-dealers in Mozambique.

The aforementioned statements were made by The Citizen on the basis that, in view of McBride’s history, they were of the opinion McBride was not suited for the position and that his possible appointment was a matter of public interest.

McBride then sued The Citizen for the “damage” he had suffered as a result of his dignity and reputation having been impaired.

In his view the articles were understood by the readers to mean he was not suited for the position as police chief, that he is a criminal, a murderer and “morally corrupt” despite the fact he was a Mkhonto we Sizwe (MK) soldier, that the attack on Magoo’s Bar was part of the armed struggle to eradicate the system of apartheid and that he was granted amnesty in terms of section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995 (TRC Act).

In essence the Supreme Court of Appeal (SCA) held that once a person has been granted amnesty, he can no longer be branded a criminal and/or murderer in respect of the offences for which such amnesty has been granted.

However, the SCA held the amnesty granted to the person cannot “obliterate” or “erase” the facts from the historical record but have the effect that the person is no longer “considered a criminal in respect of the deeds committed by him”.

The SCA went on to state the “granting of amnesty was an attempt to shape the future and not to undo the past” and that the statements published in the article that McBride was a murderer were, as a result of the aforementioned, false.

This decision was based on the court’s interpretation of the TRC Act which provides that a person who has been granted amnesty in terms of the TRC Act shall not be criminally or civilly liable in respect of an offence, act or omission for which he or she was granted amnesty.

Furthermore, the granting of amnesty has the effect of expunging any record or entry of the conviction from all official documents or records and the conviction shall for all purposes, including any Act of Parliament or any other law, be deemed not to have taken place.

Amnesty could in terms of the TRC Act be granted for offences “relating to an act associated with a political objective committed in the course of the conflicts of the past”.

A conviction by a court of law has overturned the TRC, an administrative tribunal, which has granted an amnesty after considering the matter.

This, however, does not alter the reality of what happened – the real question is whether one can adjust history in one’s favour and therefore by administrative acts create immunity purely on the ex-post facto and essentially politically motivated whim of an administrative and tribunal.

Full and frank disclosure by public officials and those intending to become such is essential and the attempt to suppress any kind of information in this regard is contrary to public interest particularly where the appointments are to high office and in the administration of justice.

It is perfectly fair for the Press to insist that knowledge of these matters is made public, but it does not mean that the appointing authority would necessarily be bound by this information considering the granting of the amnesty.

A far bigger question is whether in fact the TRC itself erred in granting the amnesty, given the fact that McBride bombed, essentially, a civilian target.

The exoneration by the TRC may have removed the looming threat of civil action and expunged his criminal record, but this does not alter the reality that it was held by a court of law that he committed murder.

Ultimately, an administrative decision exonerating his conduct cannot erase the conduct itself.

There are differing views on whether McBride’s conduct was directed against members of the of the security forces of the apartheid regime as part of the political struggle against the regime and was committed in the bona fide furtherance of this struggle.

There are those that view his actions as pure thuggery and him as a criminal and murderer, due to the fact that he bombed a place where civilians were present, and to allege that the mere fact that members of the apartheid security forces frequented that bar was sufficient justification to bomb the bar and be granted amnesty for such conduct is offensive to the aim of the TRC, which was reconciliation of South African society.

However, there are those who deem his conduct as that of a hero of the struggle against the apartheid regime.

Section 20 of the TRC Act has the effect of prohibiting the comment on matters of manifest public interest and thus constitutes an infringement of the right to freedom of expression.

Applying the section in accordance with the SCA judgment will force the public, who are bound to have differing opinions, to forget and overlook the conduct of an individual with a specific political affiliation, committed under the auspices of that specific political affiliation.

This is tantamount to thought control.

FXI intends intervening as amicus curiae in The Citizen’s application to the Constitutional Court.

Melissa Moore is acting executive director of the Freedom of Expression Institute.