Friday, October 1, 2010
ConCourt: truth versus law
Friday, 01 October 2010 08:02
JOHANNESBURG - The Truth and Reconciliation Commission (TRC) was about truth-telling and promotion of national reconciliation, not about pretending that the past had never happened.
This was an argument advanced by Advocate Wim Trengove SC acting on behalf of The Citizen in the Constitutional Court yesterday.
The newspaper is appealing a Supreme Court of Appeal (SCA) ruling that former Ekurhuleni Metro police chief Robert McBride could not be referred to as a “murderer” because he was granted amnesty by the TRC.
In a series of articles in 2003 questioning McBride’s fitness to hold the office of Ekurhuleni Metro boss, The Citizen called him a “criminal” and a “murderer”.
McBride was responsible for the fatal 1986 bombing at Magoo’s Bar in Durban. Three women died and 69 other people were injured.
McBride was convicted of the murders but was granted amnesty in 2001 by the TRC in terms of section 20(10) of the Promotion of National Unity and Reconciliation Act 34 of 1995 (TRC Act).
The provision stipulates that a conviction of offences for which amnesty has been granted “shall for the purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place”.
McBride sued The Citizen and won. He was initially awarded R200 000 in damages but this amount was later reduced to R150 000 by the SCA. The SCA, however, found that the newspaper had defamed McBride by calling him a murderer because the TRC Act disallowed the use of the term.
Said Trengove: “The law requires us to pretend that the murder never happened. The fact of the murder does not go away.
“The issue of the case is not whether he (McBride) was convicted of the murder but whether he committed murder.”
A conviction was irrelevant to whether someone committed murder or not, he added. “(Adolf) Hitler was a known murderer. A murderer becomes a murderer whether convicted or not,” he said.
McBride’s lawyer, advocate Danny Berger SC, argued that the newspaper had deliberately omitted the fact that his client had been granted amnesty and his criminal record had been wiped clear. He said The Citizen had an obligation to state the facts every time it wrote about McBride.
But Trengove disagreed, saying it was not necessary for the newspaper to always mention the amnesty because the likelihood was that its readers were aware who McBride was. Berger argued that it was no longer acceptable for the newspaper to continue to “harass” his client by calling him a “murderer”.
Justice Zak Yacoob asked whether this meant that victims of apartheid atrocities could not longer refer to the killers of their loved ones as murderers.
Berger replied that was not the case. “What about McBride’s dignity? There must be some protection given to his dignity.”
He contended that it was not in the public interest for The Citizen to comment on and write about McBride’s imminent appointment as Ekurhuleni Metro Police chief.
Justice Edwin Cameron asked if it would not be of public interest if Barend Strydom were to become mayor of Pretoria.
Strydom is notorious for his racially motivated shooting spree in which seven black people were killed and 15 wounded.
Representing Justice Minister Jeff Radebe, Advocate Kgomotso Moroka SC said it was not right to perpetually call McBride a murderer. “ ... Reconciliation can never be served by forgetting the past, but not name-calling. We are not propagating amnesia. Closing the book on the past does not mean calling people murderers,” she said.
Making submissions for friends of the court (Freedom of Expression Institute, SA National Editors’ Forum, Joyce Mbizana and Mbasa Mxenge), Advocate Gilbert Marcus said the silencing of the truth by the TRC Act affected the dignity of victims. The TRC also infringed on the freedom of expression, he added. The Constitutional Court reserved judgment.
Comments by Sonny
One thing the ConCourt cannot do, is, turn back the clock on history!
McBride has a past, he must face his demons!