Evita Bezuidenhout, talking about the revelations of apartheid era Vlakplaas hitsquads and the claim by many white South Africans that they never knew about the extra-judicial killing and torture of black South Africans by the police, said that ”the future is certain; it’s the past that is unpredictable”.
Last week the Supreme Court of Appeal (SCA) reminded us how true these words of Tannie Evita is for South Africa. Writing another chapter in this novel called our past, the court in effect wiped out a swath of human rights abuses perpetrated during the apartheid era.
According to the SCA, Dirk Coetzee, David Tshikalange and Butana Almond Nofomela never murdered Durban attorney, Mr Griffiths Mxenge, in November 1981. Adriaan Vlok never ordered the bombing of the headquarters of the South African Council of Churches at Khotso House, and the COSATU trade union headquarters in Johannesburg. Eugene de Kock, Craig Williamson and General Johannes Coetzee never bombed the London offices of the African National Congress in 1982.
Of course, we know these events did happen. The perpetrators were, after all, granted amnesty by the Truth and Reconciliation Commission (TRC) for having done these things. But according to the SCA, because the TRC granted the perpetrators amnesty, a newspaper could not claim that such individuals were murderers or criminals as this claim – which obviously would be defamatory – would also be false.
This, at least, is the consequence of the majority decision of the SCA in the case of The Citizen and Others v Robert McBride. Streicher JA (for the majority) thus found that The Citizen had defamed Robert McBride when it referred to him as a criminal and as murderer. While it was true that McBride planted a bomb in a pub in which three civilians had been killed and that he had been convicted and sentenced to death for these “crimes”, the newspaper could not rely on the traditional defense against defamation(that the defamatory statements were true and were in the public interest or that it was fair comment based on proven facts) because McBride was granted amnesty. It was therefore false to claim that he had been a murderer. He was not a murderer as the TRC had granted him amnesty for committing those murders.
Mthiyane JA (for the minority) disagreed, stating (correctly, I would contend) as follows:
the right thinking reader of The Citizen would have been left with the impression that the authors are clearly and principally commenting or expressing an opinion on the suitability of the plaintiff as a candidate for appointment as police chief. As I see it the reader would have understood the writers to be arguing, rightly or wrongly, that because of the plaintiff’s involvement in the bombing of Magoo’s bar and the Why Not restaurant in 1986, which had fatal and disastrous consequences for many innocent people, and his subsequent conviction and sentence, he ought not to be appointed to the post of chief law enforcement officer of a large municipality. Despite the strong and robust language used and the somewhat extreme (if not, right-wing) views expressed, the articles and editorials remain comment or opinion on the issue of his suitability for the position of the Metro Police Chief.
The fair comment defense did not require that the comment had to be fair in an objective sense, nor did it require the comment to be impartial or well-balanced. “Fair” in this context means only that the opinion expressed must be one that “a fair man, however extreme his views may be, might honestly have, even if the views are prejudiced”. Critical for the newspaper would be that the factual allegations on which the comment was based could be shown to be true. The minority points out the absurdity inherent in the majority opinion:
My colleague says that these facts cannot be obliterated from the historical record and that it is a well known fact that he is a murderer, but then goes on to suggest that the granting of amnesty rendered that fact false ─ a suggestion with which I join issue. This is by no means intended to downplay the broader motives which the plaintiff may have had, namely to free the then downtrodden majority of the people of this country from the evil system of apartheid.
The TRC Act made it clear that the effects of being granted amnesty would be to insulate a person from criminal and civil liability and to expunge the criminal record of the person granted amnesty. Last year the Constitutional Court found in the case of Du Toit v Minister of Safety and Security that Wynand du Toit, who was sentenced to 15 years imprisonment for the murder of the “Motherwell Four” but was later granted amnesty for these despicable deeds (am I allowed to write this without defaming Du Toit?), did not have a right to be reinstated as a police officer because of his amnesty. The Court warned against a “purely literal and de-contextualised reading” of the TRC Act, which would lead to a conclusion that:
the grant of amnesty has the effect of expunging not only the record of the conviction and sentence imposed on the perpetrator, but also all consequences that follow that conviction and sentence, past, present and future. There are, however, serious difficulties with that interpretation.
It was one thing to alter the public record, but another to change history and to assume for purposes of the law of defamation that certain acts – which did take place – actually never took place after all.
The majority decision has a somewhat Orwelian character as it holds that the TRC Act now requires us to pretend that what actually happened in the past, never really happened. We have to pretend that all those people who were granted amnesty for the most heinous crimes (once again, am I defaming anyone by writing this?) never really did anything wrong. It forces a kind of legal amnesia on all of us and fails to heed warnings that we should never forget the past – lest we repeat it.
I hold no personal grudge against McBride. He was granted amnesty for a politically motivated act in which several women were killed. Just like De Kock and Coetzee, he took part in the amnesty process and his criminal record was expunged. Good for him. Unlike De Kock and Coetzee his deeds formed part of the liberation struggle.
Personally I do not believe his conviction for acts for which he was granted amnesty (but which the majority in the SCA would rather us not mention at all) disqualifies him from being a police chief. The fact that he is alleged to have crashed his car after a day of heavy drinking, that he is further alleged to have obtained a fake medical certificate to cover this up and is alleged to have intimidate witnesses, might well – if proven – disqualify him from ever holding any job, but that is for a court to decide.
But the principle seems important. A ruling that the TRC amnesty process requires us to suddenly be struck by a dangerous amnesia about the past, is destructive and illogical. In a democracy with a free media it is impossible to rewrite the past and to pretend proven facts never happened. That is what the SCA majority in effect requires us to do. I do not want to have any part in perpetuating those kinds of lies and the rewriting of history. Granting all those criminals amnesty was bad enough. Surely it is a bridge too far to expect us to forget they ever did those things.
Thanks Prof – I also agree with Mthiyane’s decision. Perhaps the Citizen should now take this thing to the CC. After all, the “wiping-out” of the past through an amnesty process by the TRC, so that no one dare say that a murderer that received amnesty still committed a murder and therefore should not be appointed in a high position, is a constitutional issue. Isn’t it?
I wrote on this yesterday at ForVoetsSake. I think there are quite a few problems with the majority’s judgment. One of the points that I think is wrong with this is that they interpret the Reconciliation Act to limit the right to freedom of speech by implication. It is a fairly established common law presumption (and this presumption is one that I think the Constitution would endorse) that statutes should be interpreted to avoid limiting rights when that is possible. In this instance the SCA used a purposive interpretation of the Reconciliation Act to limit the right to freedom of expression despite it not being expressly mentioned in the Act.
Typical SCA – sticking to the letter of the law (literal interpretation), not the spirit of the law. Maybe the Citizen should appeal this to the CC simply to clarify the constitutionality of that clause in the TRC Act. That is if the legal costs of further appeals exceeds the R150,000 they must pay.
So, all the cases receiving amnesty never happened? Did anyone receive amnesty for Sowety 1976 and/or Sharpville 1960? If so, legally these events never happened, right and we could cancel the holidays on 21 March & 16 June? The business sector would be gladdened by this.
Did the ANC (or its leaders/MK commanders at the time) ever receive amnesty for the abuses in their camps? If not, then those abuses still occured, right?
Prof De Vos – “Personally I do not believe his conviction for acts for which he was granted amnesty (but which the majority in the SCA would rather us not mention at all) disqualifies him from being a police chief.”
I do not think you are right in believing as you do. Even though McBride participated in the ‘legitimate’ struggle for freedom, he still killed innocent civilians that did not necessarily form part of the oppressing regime or share its philosophy. To appoit such a person as police chief, which happened, would open the door to police brutality against civilians in the belief that such tactics are admissible in the ‘legitimate’ struggle agaiinst crime. I know of quite a few people who have suffered at the hands of the ilk that he appointed as Metro Police officials during his watch. Good example that he set, eh? Citizen was right in campaigning against his appointment, and the majority of the SCA was dead wrong. I mean, Wynand Du Toit could not be reinstated as a police official because of such (similarly) dispicable acts – why should McBride then have been employed as Metro Police Chief? But then again, a gangster (or at least a good friend of gangsters, druglords and racketeers) got appointed as National Police Chief and Interpol Chief. When is someone going to find that the precedent created in these cases were wrong?
I have difficulty understanding certain aspects of this. If a man is convicted of murder, then is pardoned, or forgiven by the TRC, did he then no longer have commuted murder in the first place. I think not. He did; it was proven. Thus he was and is a murdered. Eventually, he received political or societal vindication via the TRC. However, in reality, the murders still stand. They took place, happened. Perhaps the Citizen should have used the adjective ‘convicted’. Amnesty doesn’t change the fact that murders happened by the hand of the man granted amnesty.
Illusion, spin and double speak. To kill is to kill! Thus one who commits such an act is a murderer. When cold blooded, even in a time a war, it is still murder, not self defense.
I suppose that Streicher JA’s opinion for the majority does strike one as being somewhat irrational. But while that majority view may seem illogical on the face of it, it may actually make a bit of legal sense.
Streicher’s ruling effectively makes falsehoods of truths. And I can certainly see how that could seem pretty dubious to many people.
But I would like to mention a feature of South African law that could end up casting Streicher’s opinion in a more convincing light. That feature is that our law does recognise some fictions. One well-known instance thereof is the so-called nasciturus fiction which, in fairly general strokes, can be articulated thus: the unborn child can be regarded as having been born when doing so will be to her benefit. Obviously the fiction here is that the child will not actually have been born alive.
As I mentioned earlier, it may just be that Streicher’s position could make a bit of legal sense. And I think that Sreicher’s seemingly illogical stance could be rescued if we ask of ourselves whether a core question here is this: was the TRC Act intended to protect perpetrators against defamatory remarks? If so, then a subsequent question would be whether perpetrators could be protected against defamatory remarks if defendants could successfully invoke the two defences to defamation suits that involve the question of whether the defamatory remark was true or at least based on truth. If it is true to say that perpetrators could not be protected from defamation if defendants could have recourse to those defences, then fictitiously making legal falsehoods of those truths could get the job done. So maybe Streicher JA had a fiction in mind. And if so, well I don’t think it can be said that our law never allows for that sort of thing.
But the abovementioned notwithstanding, it could be that even if the logic of Streicher JA’s opinion could aided by arguing that it speaks to a legal fiction, it could be that it is in any event out of touch with the Constitutional Court’s jurisprudence as captured in the DU Toit case.
@sirjay: “Thus he was and is a murdered.”
Oh, how I wish …
@ Leigh – I would argue that the use of fictions should generally be a last resort for any legal system (some would argue that we could do without even the nasciturus fiction). In this instance, if the court is going to exercise its power to develop the law and create a fiction surely it should do so only by expressly considering the opposing values concerned. Here a fiction is created that doesn’t simply protect one person’s rights (although arguably it may protect a persons dignity by not allowing them to be defamed) it also restricts the rights of others. If so, then the SCA has, with respect, erred on protecting the wrong party.
Suomy: a typo, should have read ‘murderer’, as I’m sure you gathered. However, murder is murder, period. And even the soul who committed it, knows it.
David: In a competent Democracy if a judicial decision is a fiction; its overturned. Thus they rarely arise.
Well, Citizen v McBride is law now, and its binding on all the courts except for the CC.
I think the consequences is perhaps more than changing the past. I’m thining of the effect of tis judgement on Presidential Pardon. If Shaik is pardoned by the President, will it mean that he never bribed JZ? I hold the view that pardon granted is not the equivalent of an acquittal, but reading this judgement, the majority of the SCA bench seems to say I’m wrong.
Just one last comment on Streicher’s judgement: I thing he is actually contradicting himself on whether a pardoned murderer is still a murderer.
Para [23] “The question that arises is whether the subsequent granting of
amnesty to the respondent rendered the statement that he was a murderer
false.”
Para[30] “… people to whom amnesty had been granted . . . should be considered not to have committed the offences . . .”
But then in Para [33] “That is not to say that the respondent’s actions and
the consequences of his actions are to be considered not to have taken
place. It is a fact that the respondent placed the bomb that killed a number
of people and it is a fact that he was convicted of the murder of those
people. The amnesty granted to the respondent could not obliterate those
facts or erase them from the historical record . . .”
There is a distinction that the majority is perhaps trying to make (I don’t feel that they are doing it right). This is that the term “murderer” can refer to someone who is paying, or should be paying for the crime of murder, as opposed to someone who committed a murder. There is a currency about the term, “murderer” To simply continue using the term after a pardon or amnesty carries with it an implicit view that the amnesty / pardon has not happened, or should not have happened.
I would describe Mr McBride as some who committed murder, or someone who was convicted of murder. This gives it something of a past tense, and avoids the currency problem. After all, a murderer, by rights is a person who should not be walking around. Whereas, Mr McBride is someone who should be walking freely around (in the legal sense that is, unlike Mr Shaik).
If a convicted murderer served 25 years in jail, and was then released, then I don’t think that I would call that person a murderer. They have paid their debt to society and, while one cannot erase the ast, one can treat it as the past.
I believe that the court was wrong to rule that the past should be deemed not to have happened. It is the guilt or debt to society that is expunged, a lot but not entirely) like the person who has served his full term.
I do feel, though, that the court should have, and could have, found a way to require that we treat the issue as being past tense in the way that we speak about it.
David, I am not sure that Streicher JA sought to create a fiction – I only raised the possibility as it seems to be a way of making some sense of the majority opinion. I would just add that if Streicher had the creation of a fiction in mind, then the decision, as you suggest, should have involved a consideration of the implications to which the fiction could give rise.
Mike: Nonsense: if you yourself kill someone. Especially an innocent, you will know for the rest of your life that you did so, regardless of judicial judgment, or amnesty, or forgiveness. You killed, period. To think otherwise is not just denial, its falsehood.
@ Leigh Ja, sorry, was responding to the principle of using fictions.
Courts are simply just interpreters of the legislation. The TRC Act was an insult to begin with so there is not much the courts can do to “holify” that evil act that undermined accountability. The then lawmakers are to blame not the SCA. I may still believe they erred on several Zuma appeals but this time the majority are “in order*
Well, these are the same whiz kids that supported the verdict of the Waterkloof four against the physical evidence and in favour of very shaky accomplice witnesses. I do not think that this is the height of their acclaim. What are the odds that political interference is alive and well? I think we are yet to be amazed.
Not to be contrarian, but I tend to think Stretcher JSA was right – although I admit I have not studied the judgment closely.
Section 10 of the Act says 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.”
I would have thought that this provision renders Stretcher’s opinion inevitable. “For all purposes” means: “for all purposes.”
Of course, the Citizen could have argued that section 10 is unconstitutional, insofar as it unjustifiably limits freedom of expression. But so far as I can see, thus argument was not advanced at the SCA. An interesting question is whether the words “for all purposes” should be read down, notwithstanding the fact that the provision was not frontally challenged. Has there been debate on this?
I know this belongs in another thread, but makes for an interesting read.
http://www.wired.com/images_blogs/threatlevel/2010/03/middlefinger.pdf
For me the greatest problem with the judgment is not so much that the majpority opinion is not legally very coherent or credulous (although I think it is not) but that the court made a choice to extend the effects of amnesty while amnesty itself is already problematic as it really infringes on the notion of a Rechstaats (a state based on the Rule of Law). The effects of amnesty should therefore be interpreted and applied as narrowly as possible. This did not happen in the majority judgment.
Pierre, the CC, in the AZAPO judgment, went out of its way to extend the principle of amnesty quite far. You will recall that one of the arguments of applicants was that, while criminal amnesty might be seen as specifically envisaged in the Const, civil immunity was not. (Broad civil amnesty also appeared to be in violation of customary internatioal law; see Dugard’s SALJ’s piece on that.)
Neverthless, the CC held that the TRC Act’s scheme of civil amnesty was not a violation of the right of access to court. (See Didcott J’s concurrence for his expression of discomfort with Mahomed J’s expansive reading of the reach of amnesty.)
I tend to think Streicher’s decsion is consistent with AZAPO.
Let the CC reverse the SCA’s decsion if it wants to — that will force the Court to come to terms with the dubious legacy of AZAPO.
You may be right when you say; “Dirk Coetzee, David Tshikalange and Butana Almond Nofomela never murdered Durban attorney, Mr Griffiths Mxenge”. [L T C Harms, Report of the Commission of Inquiry into Certain Alleged Murders, pp151, 153-154, 158-159] or [ Anthea Jeffery, People’s War, p532]
You people need more practice. ‘Sometimes I’ve believed as many as six impossible things before breakfast.’
`Living backwards!’ Alice repeated in great astonishment. `I never heard of such a thing!’
`– but there’s one great advantage in it, that one’s memory works both ways.’
`I’m sure mine only works one way,’ Alice remarked. `I can’t remember things before they happen.’
`It’s a poor sort of memory that only works backwards,’ the Queen remarked.
`What sort of things do you remember best?’ Alice ventured to ask.
`Oh, things that happened the week after next,’ the Queen replied in a careless tone. `For instance, now,’ she went on, sticking a large piece of plaster on her finger as she spoke, `there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’
`Suppose he never commits the crime?’ said Alice.
`That would be all the better, wouldn’t it?’ the Queen said.
The so-called learned judges obviously did not read Robert Bolts ” A man for all seasons” when Thomas More makes this argument “Some men think the Earth is round, other think it flat; it is a matter capable of question. But if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? No, I will not sign. ”
For this Thomas Moore was tried and executed by Henry VII
Pierre, bepaal jouself maar liewer by die Law en hou jou moral judgements vir jouself. Hoe iemand wat onskuldige mense in ‘n bar met ‘n bom vermoor het ooit geskik kan wees vir enige gesagsposissie,om nie eers te praat van polisiehoof nie, gaan my verstand te bowe. Net soos jou opinie, dat daar niks verkeerd is om ‘n skelmpie aan te hou, in ‘n land met die hoogste HIV voorkoms ter wereld, uiters ongevraag en onverantwoordelik is.
Jou opinies oor die Law is oor die algemeen interessant en goed beredeneerd . Hou maar liewer jou morele opinies vir jouself aangesien dit afbreuk doen aan jou andersins goeie artikels.
SC, your view that McBride’s conviction for planting the bomb and killing civillians makes him unfit for public office is quite a radical one. If followed to its logical conclusion it would mean you believe Churchill and all the members of the RAF who bombed civillian targets in the second world war, Harry Truman and all the airforce pilots who dropped bombs on Japanese cities, Eisenhower and all the soldiers involved in the lkilling of North Korean civillians, both George Bush’s and all the US soldiers involved in the killing of Iraqi civillians, Bill Clinton and all the US airforce members who bombed and killed civillians during the Kosovo war and Barack Obama and the soldiers who have been involved in the killing of civillians in Afghanistan is not fit to hold public office. As I said, your view is a radical one usually associated with people who are complete pacifists.
You are 100% correct I also think George Bush and Tony Blair should be prosecuted for war crimes as well as just about every Israeli President and Defence Minister. I do not agree with the fact that it is usually only the losers or those who are no longer in power who get charged with war crimes. And yes, I am rather disappointed with Obama’s handling of the Afghan war. I do not believe he should be prosecuted as he inherited the mess , but I hope he gets out of there asap. Surely you do not think that 9/11 was justification for invading Afghanistan and the endless loss of life of invaders and civilians that has followed. I would not call myself a complete pacifist as I believe in self defence . Self Defence should however be interpreted strictly and not the way it is abused by Israel, the USA and others. If you want to label me , hou about justice fundamentalist?
SC, how can you be “disappointed” with Obama’s prosecution of the Afghanistan war?
He made no secret in his electoral campaign that he considered that to be the “right” war. Were you not aware of this?
Also, if you do believe in self defense, how exactly do you think a nation can defend itself against a huge urbanised power without killing some of its civilians in the process?
“Also, if you do believe in self defense, how exactly do you think a nation can defend itself against a huge urbanised power without killing some of its civilians in the process?”
Michael Osbourne, in your opinion, is there a difference between self defence and fundamentalist retaliation?
I made the mistake of commenting on your opinion on the Mc Bride judgement without reading the judgement first. Having now read the judgement I am of the view that the majority decision is correct. Mc Bride claimed damages from The Citizen newspaper on the grounds of defamation of character after the newspaper called him a “murderer” in an editorial comment.The Citizen relied on the defence of truth and public benefit. Due to the fact that Mc Bride was granted amnesty his previous conviction of murder no longer stands . It therefore was not true that he was a murderer . Surely you will agree that in terms of our law you may not call someone a murderer, thief or criminal unless he has been convicted of the crime by a Court of Law and the conviction still stands . Had the editorial referred to his brutal and cowardly deeds and the fact that he had been convicted of the murder of innocent civilians but was let off the hook not on the merits but due to the controversial TRC process , he would not have succeeded in his defamation case. The simple fact of the matter is that his past has not been erased and that one is at liberty to discuss his suitability for office and details of his past. One can however not call him a “murderer” as his conviction for murder no longer stands. In the words of Streicher JA “That is not to say that the respondent’s(Mc Bride’s) actions and consequences of his actions are to be considered to not have taken place. It is a fact that the respondent placed a bomb that killed a number of people and it is a fact that he was convicted of the murder of these people. The amnesty granted could not obliterate these facts.” Therefore the past cannot be changed and no one can stop us from discussing the details of Mc Bride’s and Barend Strydom’s actions for which they were rightly convicted in the past. The only thing we may not do is call them “murderers” as these convictions no longer stand. I am satisfied that our Appeal Court made the correct decision in this case .
SC, thanks for the comment which raises good points. I wonder though, did the majority not try to make distinction without a difference? Was it not “fair comment” for The Citizen to claim that McBride was a murderer based on proven facts? Would the outcome of the majority decision not lead to absurd consequences? On the majority view it would have been perfectly fine to say Mcbride killed someone, that this was an evil thing and that he was unfit for public office, but not to use the “M” word itself. The effect of both these statements would be to defame McBride to more or less the same degree, but in the former case it would be lawful and in latter case it would not. This seems exceedingly formalistic to me. And what about the effects of this judgment on respect for the Rule of Law? Moreover would the judgment not have a chilling effect on freedom of expression as it would now require us to tiptoe around proven facts and always to dress up our statements reflecting proven facts as “opinion” and not as the facts that we all know them to be. Is the effect of this not rather Orwelian? Perhaps, you will say yes, but point to the TRC Act which commands this kind of Orewelian thinking and behavior. In that case I would repeat my profound misgivings of the TRC Act expressed previously on this Blog.
SC says:
March 4, 2010 at 12:11 pm
“Surely you will agree that in terms of our law you may not call someone a murderer, thief or criminal unless he has been convicted of the crime by a Court of Law and the conviction still stands .”
That is problem with the judgement: Amnesty does not overturn the conviction, it “forgives” the criminal, but the conviction is not overturned. Nor does it have the effect that the guilty verdict was incorrect.
The defence of fair comment was not open to the Citizen in this case as they did not plead the defence of “fair comment” in response to the allegation that Mc Bride was a murderer . They relied on the defence that the statement was the truth.
In what can be considered obiter dictum, it is further held that the defence of fair comment would not have succeeded even if it had been pleaded. For the defence to succeed,the ordinary reasonable reader would have had to interpret the editorials/articles as opinion rather than a statement of fact. In none of the articles/editorials in question was mention made of the fact that amnesty had been granted. I am not entirely certain whether I agree with the Judgement in respect of how the ordinary reasonable reader would have interpreted the offending articles.
In my understanding your quotation from the dissenting judgement deals with the matter of fair comment .
On my reading of the majority judgement one could even get away with referring to Mc Bride as a “murderer” as long as it is relevant within the context of the article. For example one could have written that due to the controversial amnesty process one now has a convicted murderer,Mc Bride, appointed as police chief and another convicted murderer , Barend Strydom , could be appointed to head the Human Rights commission. One could point out the potential danger to society resulting from the amnesty process.
Pierre, it seems to me your objection is not to the SCA judgment itself, but more with the common law of defamation. By your argument, it would always be problematic to hold someone liable for labelling another a “murderer” — irrespective of whether there was a question of immunity or amnesty.
But, as you know, “murder” is a term of art, with distinct formal elements. Whether or not someone is a murderer is not, in law, a matter of opinion, and is not a matter of fair comment. On the other hand, the term “killer” has no definite legal meaning.
One might argue that the common law of defamation should be developed in light of the const. value of free expression. But that was not really before the Court.
As you also suggest, the problem may be with the Orwellian TRC Act. But I do not believe that the Citizen challenged the constitutionality of the Act. So you cannot fault the SCA for not striking down the Act.
@ Mr Osborne It doesn’t seem entirely appropriate to hold non-lawyers to terms of art used by lawyers. I would imagine that most people don’t even realize that being a murderer is different to being a killer.
I think the reasonable person knows that murder is defined by the law as the unjustifiable, intentional killing of a human being. This is a case where the technical legal elements of the crime are not far removed from the common sense lay view.
Also, let me ask you this: If calling someone a murderer is not defamatory, what is?
Hm, I am not convinced that the reasonable person would know that there is a difference. (I will ask the law students I tutor in first year what they think murder is as opposed to killing).
As to whether calling someone a murder is defamatory – all other things being equal I would agree that it is.
It makes no difference whether you call someone a murderer or killer in the context of this judgement . Calling someone a murderer, killer ,rapist, criminal is defamatory.Only in certain well defined circumstances is it lawful to publish “defamatory” comments. One of those instances is if it is the truth AND in the public benefit. Every layman knows that these words are defamatory on the face of it. A newspaper editor or any person seeking to publish defamatory comments ought to first obtain legal advice before publishing “defamatory” statements. For example if someone was convicted of fraud and it was overturned on appeal you cannot keep referring to them as a fraudster. You could however write that he was convicted , but it was overturned on appeal due to a legal technicality or something.
“Woman sues over parolee employee
A Newcastle businesswoman is claiming R358 000 from the Khulisa Crime Prevention Institute alleging that she was shot by a parolee she had employed at its behest. In documents before the high court in Pietermaritzburg, Daphne Clark contends she was not fully informed about the man. She was not told that he had murdered his wife with a machete, that he had psychological problems and was manipulative, clever and had violent tendencies. Khulisa, headquartered in Rosebank, Joburg, is a Section 21, not-for-profit company that seeks to rehabilitate and educate offenders. It has denied the allegations and intends defending the claim. Clark suffered permanent disfigurement and disabilities. – Sapa”
http://www.thestar.co.za/?fArticleId=5378045
When you see statements like these, I dont know whether I should laugh or be angry? After benefiting from apartheid others never thought that they will carry a troubled conscious for the rest of their lives and we will always remind them.
http://www.news24.com/Content/SouthAfrica/986/81b956c8b084412d8017cd4bc702618e/07-03-2010-01-36/De_Kock_Im_no_racist
“McBride was convicted — period!
EUSEBIUS MCKAISER: COMMENT – Aug 02 2010 18:31
If someone was convicted of murdering people but later granted amnesty for their action, does that mean we should no longer call him or her a murderer? The Supreme Court of Appeal (SCA) thinks not.
It argues that because amnesty aims to achieve reconciliation and nation-building, that requires that we no longer describe someone as a murderer if he or she is granted amnesty. But the Constitutional Court is about to have the final say.”
http://www.mg.co.za/article/2010-08-02-mcbride-was-convicted-period
I copy this from a more recent blog on the CC’s decision about the Scorpions / Hawks saga – just to have it in the right place
——————————–
Anonymouse says:
April 8, 2011 at 12:08 pm
Another ’split-decision’ by our highest court in the McBride defamation case – http://www.saflii.org.za/za/cases/ZACC/2011/11.html
The majority, so it appears, did not have a problem with McBride having been called a ‘murderer’ in an article by the Citizen – and rightly so! Blowing up MacGoos bar was a brutal act of murder and, even if one received amnesty, the fact that one is a murderer cannot be erased by the state affording one amnesty. Good (no, brilliant) decision by the majority. The only fly in the ointment, this time, was Mogoeng J
Maggs Naidu – maggsnaidu@hotmail.com says:
April 8, 2011 at 15:56 pm
Anonymouse
April 8, 2011 at 12:08 pm
Hey Mouse,
It seems the oke has got more serious concerns right now.
Will it be defamation if I said drunkard?
Former Ekurhuleni metro police chief Robert McBride was on Friday convicted of drunken driving and defeating the ends of justice, SABC news reported.
http://www.timeslive.co.za/local/article1010143.ece/McBride-guilty-of-drunk-driving
Anonymouse says:
April 8, 2011 at 16:35 pm
Maggs
Not ‘drunkard’ – but ‘drunken driver’. He has been convicted of drunken driving and defeating the ends of justice, however was acquitted on a charge of fraud http://www.news24.com/SouthAfrica/News/McBride-guilty-of-drunk-driving-20110408
Nevertheless, the Citizen was right – he was never a fit and proper person to head the metro Police force, which makes one wonder why there are so many corrupt, thieving, drunken, drug-using high-school-dropouts in that force that were appointed on his watch – e.g., some guys taking you home at night and accepting (or stealing) cash (or credit cards) instead of arresting and charging you with drunken driving (one of them however unfortunately picked the wrong drunken Blue Bull forward to pull this stunt with) – if you get my drift. But there are many such stories and accusations that are never properly investigated (or have never been properly investigated on his watch). Oops, I must watch out, or else the following headline might hit he press: “Mouse sued for defamation”.
P.S. – I think the right place to post this would be under the original post on the SCA decision – and I will copy this there.