About remembering and forgetting

Milan Kundera, in his novel The book of laugher and forgetting, famously stated that: “The struggle of man against power is the struggle of memory against forgetting”. If we forgot the past, Kundera seemed to suggest, we might not be able to resist repeating the wrongs of the past. In South Africa, this warning is particularly poignant and apt. How we remember the past might well influence the way in which we deal with the present and how we react to wrongs committed by members of our society in our democracy.

Some South Africans get very irritated when the apartheid past is recalled. Apartheid has ended, they argue, and incessantly harping on about the racial discrimination and oppression of the apartheid era has become unnecessary as this may well bedevil attempts at racial reconciliation in the country. We should forget the torture and the killing of the apartheid state, the day to day inhumanity visited on South Africans merely because of the colour of their skin, the fact that apartheid was branded a crime against humanity by the UN, because “we need to move on”.

Others wish to present a sanitised and simplistic version of the past in which black people all suffered under apartheid in exactly the same way — whether they were homeland functionaries and policemen, middle class teachers and nurses, UDF activists or homeless people barely surviving on the outer margins of society. This is a past in which all black people bravely struggled against apartheid in the same way under the banner of the ANC. The role played by Robert Sobukwe, Steve Biko and their followers do not form part of this past. This version also sometimes wish to skim over the more awkward aspects of the armed struggle

Of course, the Truth and Reconciliation Commission (TRC) was established (at least partly) to try and come to grips with our past so that we will never forget the wrongs of the past (and especially the evil nature of the apartheid system) and — more importantly — so that we will not repeat the mistakes of the past and will not treat people who are not like us as if they are not fully human. The TRC was predicated on the idea that true reconciliation could only occur if we established the facts about what happened during the apartheid era so that we will be unable to pretend that nothing bad happened or that some of us did not benefit from a system merely because of the colour of our skin.

But dealing with the past — confronting it, remembering it, processing it and then moving on to build a non-racial and just society — does not come easy. How to remember without wallowing in our bitter and poisonous hatred towards others is never easy and perhaps only the truly wise manage this feat most of the time.

It is unclear whether The Citizen struck the right balance when it launched a campaign against the appointment of Magoo Bar bomber Robert McBride as Police Chief of the Ekuhureleni Metro in 2003. The Citizen had called McBride a criminal and a murderer who had shown no remorse for planting a bomb in a bar frequented by civilians. Several people were killed in the bomb blast and Mr McBride was eventually convicted for murder and sentenced to death for his role in the bombing. Later his sentence was reprieved before he was eventually granted amnesty in terms of the TRC Act.

Robert McBride is of course a controversial figure, someone who is well known to any newspaper reader and much loathed by certain sections of the community. It was clearly in the public interest for The Citizen to comment on the wrongheadedness of appointing him as a Police Chief. Although some might argue that the newspaper went too far and that the attacks on McBride were in bad taste, few would have thought that McBride would sue The Citizen for defamation for calling him a murderer. After all, a South African court had established beyond reasonable doubt that he had indeed murdered four civilians.

But that is exactly what McBride did. The case eventually landed up in the Constitutional Court and on Friday the Court handed down its judgment in the case of The Citizen and Others v McBride, handing the newspaper the legal victory but also agreeing with McBride that in one instance the newspaper had indeed gone too far and had defamed him.

The case deals with memory and forgetting in the sense that McBride had relied on the provisions of the TRC Act to argue that because he was granted amnesty he was no longer a criminal or a murderer.

The TRC Act provides that once a person convicted of an offence with a political objective has been granted amnesty, “any entry or record of the conviction shall be deemed to be expunged from all official documents” 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 place”. Mr McBride argued this meant that he was not a murderer as his conviction for murder had been erased by the amnesty process. It was therefore false to call him a murderer because in law he was no such thing. The High Court and the Supreme Court of Appeal (SCA) agreed and ordered The Citizen to pay Mr McBride a considerable amount in damages for the “untrue” and hence defamatory claims.

The Constitutional Court rejected this line of argument.

Referring to previous judgments of the Court on the purpose of the TRC, Justice Edwin Cameron pointed out that the purpose of the TRC was to “uncover the truth about the injustices that scarred our country‘s oppressive past” to help families of victims to discover what did in truth happen to their loved ones”. The amnesty provisions in the TRC Act provided an incentive to perpetrators to make a full disclosure of their criminal actions. The purpose of the TRC Act was therefore not to bury the past, but to uncover it in order to facilitate real reconciliation as opposed to a reconciliation based on amnesia.

Justice Cameron pointed out that McBride’s argument implied that the TRC amnesty provisions should be interpreted broadly, and should not only be seen as granting perpetrators exemption from the legal consequences of their convictions, but also as muting the voices of those seeking to discuss their deeds. This argument was untenable as victims of apartheid-era human rights abuses, their families, and ordinary citizens should surely have the right to continue to call the unlawful and intentional killing of others by the name of murder. They should surely also have the right to call those who perpetrated the killings murderers.

The interpretation argued for by McBride’s lawyers would not give sufficient weight to the rights of victims and their families “to speak the truth about the perpetrators who killed their relatives”. The Bill of Rights protects their right to freedom of expression, and values the dignity of their bereavement and the integrity of their memory. A sound interpretation of the amnesty provision must afford weight to these rights. How could we deal with the past if we were not allowed to speak about it frankly and openly?

What Mr McBride wanted was for the provision to:

confer on him immunity from untrammelled discussion of the deeds that led to his conviction for murder, and from the moral opprobrium that some continue to attach to those deeds. He wants the provision to safeguard him from the application of terminology that, but for the grant of amnesty to him, would be factually true, namely that he committed the crime of murder. That he did so in the course of an armed struggle against pernicious injustice does not detract from the historical accuracy of the appellation. In claiming that the statute exempts him from it, he overreaches the delicacy of the provision‘s effect and intent.

This was not tenable as it would grant perpetrators of gross human rights violations not only legal, but also moral and social absolution for their deeds. “But moral absolution lay beyond the legal benefits the statute afforded perpetrators. Expunging moral opprobrium and condemnation lay beyond the lawgiver‘s powers, and the statute did not seek to confer it.”

Somebody who had therefore committed murder — either as an agent of the apartheid state or in advancement of the struggle against apartheid — could still be called a murderer, even if they received amnesty for their actions. Neither in ordinary nor technical language does the term “murder” mean only a killing found by a court of law to be murder, nor is the use of the terms limited to where a court of law convicts.

In this case, the Court therefore found that The Citizen’s claims that Mr McBride was a murderer and hence unfit for the position of Police Chief was fair comment and that the defamatory statements in this regard were therefore justified. This was, firstly, because the comment was based on facts that were not erased by the granting of amnesty and because the comment related to an issue of public importance — namely whether McBride should be appointed Police Chief.

Secondly the comments were fair. The judgment makes clear that when a newspaper publishes highly critical comments about a public figure — as it did in the McBride case — this would be viewed as fair comment even when the comments are not impartial or well-balanced. In fact, even when comment is extreme, extravagant, exaggerated, or even prejudiced, this will not amount to defamation — as long as the comments were not made with malice — in other words, with the intention to hound or hurt the individual for its own sake.

The judgment therefore leaves public figures with much to think about. When a newspaper publishes a highly critical or even scurrilous opinion about a politician, that politician will usually not be successful when suing the newspaper merely because the criticism was extreme, unjust, unbalanced, exaggerated and prejudiced. So long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true, the politician or public figure would have to live with it.

Of course, if one made defamatory comments about a public figure and such comments were based on falsehoods or facts that cannot be proven, the situation would change. In the McBride case, The Citizen also claimed that Mr McBride had shown no contrition for planting the bomb and causing the death of civilians. This was not true as Mr McBride had indeed apologised. In a statement before the TRC McBride had said:

For the injuries, deaths, sadness and loss that I have caused people through my participation in the struggle to liberate our country I am truly sorry. I hope that through this amnesty application I am able to, in some way, contribute towards the very long and painful process of reconciliation and healing…..All the operations detailed above were carried out in accordance with the aims and objectives of the African National Congress. As a member of Umkhonto we Sizwe my objective was the furtherance of the armed struggle against the Apartheid state with the intention of overthrowing this state and replacing it with a democratic one. All my actions were geared towards the undermining and weakening of this state so that it would be forced into a peaceful negotiated settlement with the ANC and other liberation movements.

The Citizen was therefore held liable for defaming McBride in this limited sense and was ordered to pay him R50 000 in compensation.

The case illustrates that our law does not require us to erase the past. The family of Griffith Mxenge (and the families of countless other victims of the apartheid security apparatus) can continue to talk about the murder of their loved one’s and can publish critical comments about those who murdered them, despite the fact that they received amnesty from the TRC. Even where an individual has been granted amnesty we are entitled to remember this fact, to talk about it and comment on it, to demand justice and — if we are perhaps better human beings than most — to talk about forgiveness.

What we are not allowed to do was to make defamatory claims about a person that are false, or to criticise a public figure based on facts that we cannot prove and that likely seems false.

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