South Africa: Law shouldn't encourage lies, as it has done for McBride

There is justified concern at the recent appeal court ruling that the Citizen defamed Robert McBride by calling him a murderer, writes Raymond Louw in Business Day. The court reasoned that the effect of his having been granted amnesty for the Magoo's Bar bombing expunged the conviction to such an extent that it for all purposes ceased to exist. But this effectively turns truth into falsehood.

There is that well-worn saying that “the law is an ass”. There can be few more appropriate examples of the truth in this saying than the case of Robert McBride vs The Citizen newspaper.

 

The unfortunate thing is that there is nothing silly about the costs the case has incurred for The Citizen.

 

It started with McBride being nominated as the metro police chief for the Ekurhuleni Metropolitan Municipality some years ago.

 

The Citizen objected strongly, pointing out that McBride had been responsible for the Magoo’s Bar-Why Not Restaurant bomb attack in 1986, which resulted in the death of three women and injury to 69 people.

 

McBride was eventually arrested and tried in court, where he was convicted and sentenced to death.

 

However, SA’s Truth and Reconciliation Commission had begun its hearings into apartheid atrocities and human rights abuses, and one of the processes it employed was to grant amnesty to perpetrators of those acts that revolved around a political motivation for the attack, and who complied with certain legal conditions .

 

McBride was granted amnesty and freed from death row and the confines of prison.

 

The Citizen cited some of this background in voicing its strong objections to McBride’s new position as chief of Ekurhuleni’s metropolitan police force.

 

McBride sued for defamation in the Gauteng High Court and won, but The Citizen took the case on appeal to the Supreme Court of Appeal, which, in a majority judgment, upheld the high court’s defamation judgment last month.

 

The Supreme Court based its finding on the Promotion of National Unity and Reconciliation Act of 1995, which contains quite extraordinary powers of censorship.

 

A clause in the act reads: “Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this act, 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 place.”

 

The Supreme Court interpreted this to mean that, following the granting of amnesty, that McBride could no longer be branded a murderer. His conviction had been expunged from all criminal records.

 

But the law then enters the realms of the absurd by stating that the conviction “be deemed not to have taken place”.

 

This is a blanket act of censorship, which means that any story about the Magoo’s Bar bombing has to be truncated so that it does not convey any information about what happened after the bombing, who was apprehended and tried and what the outcome of the trial was.

 

All that information — which anyone would regard as an absolutely essential element of the story — is buried.

 

But the judges went further and decreed that, as the conviction was deemed not to have taken place, the Citizen’s statement that McBride was a murderer was “false”.

 

So here we have the extraordinary circumstance where the law — which normally is expected to pursue the truth so that it can be presented for all to see — not only expunges all record of a conviction and sentence from the criminal records and prevents any further publication of those facts, but goes further. It turns truth into falsehood.

 

The true statement that McBride was convicted and sentenced to death is not only obliterated but is labelled a falsehood.

 

It is difficult to imagine a situation where the law deviates so far from its mission than when it becomes instrumental in encouraging lies.

 

The dissenting Supreme Court of Appeal judge KK Mthiyane rejected his colleagues’ view of the interpretation of the act.

 

He said he had difficulty with the notion that a person who had been convicted of murder may not be described as a murderer or a criminal if he had been granted amnesty. He added that to refer to McBride as a murderer was factually correct.

 

But the majority view prevails and thus raises the question of the constitutionality of the matter. The constitution preaches as a right freedom of expression and freedom of the media and throughout exudes transparency and the idea of a society based on social justice and human rights, the building blocks of a country intent of serving integrity, honesty and truth.

 

The constitution says there must be freedom of expression and of the media but the Promotion of National Unity and Reconciliation Act says you can ignore all that and concoct lies. It seems clear that such a law must be unconstitutional.

 

There are laws which enjoin secrecy in certain court cases involving children or sexual assault and so on. And some of those laws are far-reaching. But none of them urges people to turn truth into falsehood.

 

Clearly, this judgment has drawn the country’s attention to a serious flaw in the amnesty legislation and the consequences that may flow from it.

 

This law cries out for urgent amendment and a reversal of the defamation judgment against The Citizen.

 

The call for the removal of that ban is not merely to rectify the injustice of the Supreme Court decision in regard to The Citizen but to remove a frightful impediment to factual reporting that will dog journalists and historians in the future.

 

The Supreme Court interpretation of that clause imposes an unacceptable restriction on any reporting of the many atrocities and abuses in which amnesty was granted to the perpetrators.

 

It will mean that, though details of what actually took place can be reported and published, the stories have to be cut to exclude details of who the perpetrators were and whether they were put on trial and sentenced.

 

It will result in such reports being inaccurate because they will not convey all the relevant information about the incident.

 

That is a major offence under the South African Press Code, which outlines the professional standards of journalism.

 

It could mean that journalists would be unwilling or fearful of reporting on cases in which amnesty was granted for fear of being held legally responsible.

 

The removal or satisfactory amendment of the clause is essential for the maintenance of freedom of expression and a free press in SA — and this probably extends to the accuracy of the history books as well.

 

* Louw is editor and publisher of the weekly current affairs newsletter, Southern Africa Report, and deputy chairman of the South African chapter of the Media Institute of Southern Africa. This aricle was first published in Business Day on 23 March 2010. 

 

 Raymond Louw writes in Business Day:

 

- March 23, 2010 by Raymond Louw (jocoza)

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Source: www.journalism.co.za/index.php (accessed on 26.03.10)