McBride's drunk-driving conviction is the least of his problems

The Pretoria Magistrate’s Court on Friday convicted Robert McBride on charges of drunk driving and defeating the ends of justice while acquitting him of fraud.

This however was the least of his problems — as well as others granted amnesty by the Truth and Reconciliation Commission (TRC) — after the Constitutional Court upheld the Citizen newspaper’s appeal.

The background to the decision is set out in a previous article which contains links to the judgement as well as the Promotion Of National Unity And Reconciliation Act (the Act). A compact version of the aricle is also available.

The crucial question in the Citizen and Others vs McBride is what is the effect of an amnesty granted in terms of Section 20 (10) of the Act. As set out by Justice Edwin Cameron: “What effect does the fact that a conviction is deemed ‘for all purposes’ not to have taken place have on the law of defamation?

“The main question before this Court is whether a person convicted of murder, but granted amnesty for the offence, can later be called a ‘criminal’ and a ‘murderer’ in comment opposing his appointment to a public position.”

In the case of McBride, he was applying to become the head of the Ekurhuleni metro police and the Citizen was running a campaign to stop him by calling him a murderer, despite the amnesty granted to him in terms of the Act.

Section 20 (10) reads as follows: “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: Provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public.”

The question is then, would someone who had been granted amnesty by the TRC in terms of that section be entitled to believe that the wording must be given a broad and literal meaning — “shall for all purposes … be deemed not to have taken place” — or is this merely closing the door on criminal and civil liability?

McBride sued the Citizen for defamation.

Both the South Gauteng High Court and Supreme Court of Appeal found the articles defamatory and that a defence of fair comment could not be sustained.

In other words, the Act had closed the debate and discussion regarding the deeds committed by McBride prior to the amnesty being granted.

On June 14 1986, as an operative of the African National Congress (ANC), McBride carried out a car bomb attack outside Magoo’s Bar and Why Not Restaurant on the Durban beachfront. The explosion killed three young women and injured 69 other people. For this he was found guilty of multiple murders and was sentenced to death. In 1991 he was reprieved, and in 1992 he was released. In 1997 he applied for amnesty under the Reconciliation Act for the murders and associated crimes, which was granted on April 19 2001.

The Constitutional Court disagreed, saying the High Court and SCA had applied a literal and acontextual approach which ran contrary to our case law — that the TRC was there in order to bring closure by telling the truth not to render the truth false, that their decisions failed to give weight to the right of freedom of expression and finally that their decisions overreached the benefits McBride earned when he sought and was granted amnesty.

As indicated above, the full judgement and Act are available by clicking on the links provided.

The law has been set out by the Constitutional Court and I would urge those who work in the media to read the Citizen and Others vs McBride as it clears up a few tricky areas and helps to set guidelines in respect of defamation.

Also see Albutt v Centre for the Study of Violence and Reconciliation and Others [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC); and Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 at paras 35-45.

Professor Pierre de Vos in his analysis quotes from Milan Kundera: “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”.

I have a major difficulty with the decision of the Constitutional Court.

If we have regard to the case against McBride — prior to amnesty — he was already a convicted murderer whose subsequent conduct in the drunk-driving case gives further cause for concern. Blowing up innocent people in the name of a cause will never be acceptable to me no matter how justified people would have us believe it was.

Apartheid was however a war and many acts — committed to sustain it or get rid of it — were justifiable, in the legal sense, under the circumstances.

At the time of the TRC, the parties who had negotiated the new democracy believed that it was necessary to try and make as clean a break from our past as was possible. It was for this purpose that a TRC was established.

As part of the machinery for that process, the Act, which includes section 20 (10), was legislated.

Against that background the second part of the section reads ” … shall for all purposes … be deemed not to have taken place: provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public”.

The parties involved in carrying out the deeds for the apartheid government and those opposed to it were advised by their attorneys to come forward and lay it all out on the table.

In order to encourage them they were given the assurance that if they told the truth they would be given amnesty in accordance with, inter alia, section 20 (10) of the Act.

The mandate of the TRC was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as reparation and rehabilitation.

The proviso to section 20(10) says “Provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public.”

This would suggest to me that where there was a belief that the granting of amnesty could endanger public safety, the committee could recommend measures to safeguard against it, but save for that section 20(10) is of full force and effect. If the committee felt the public needed to be protected against, for example, McBride, it should have made provision for his not being allowed to enter public office.

The decision on Friday means that people who had been at the forefront of maintaining or opposing apartheid — heroes to their side at the time — and who were told to come and tell the truth (as horrific as much of it was) in order to make a break from the past and start afresh, were now totally at the mercy of the media.

I wonder how many of them would have signed up for amnesty if they had known that not only would people know what they had done in the past but that the media and others could dictate their future using that same information whenever they deemed it appropriate?

Clearly McBride did not think that this was the case, as he proved when he sued the paper for defamation.

Clearly the High Court and SCA agreed with him when they gave judgement in his favour.

If I had been acting for one of the parties who had applied for amnesty and had encouraged my client to come forward and testify at the TRC, I would have been horrified reading that decision by the Constitutional Court.

It would mean that everything my client had laid bare at the TRC was now fair game, provided the media doesn’t overstep the boundaries set out in the relevant case law.

If my client had been given indemnity from prosecution in terms of Section 204 of the Criminal Procedure Act then I would expect him or her to be at the mercy of the media. Here they are getting a walk for crimes they have committed — in the ordinary course — for telling the truth. Take the good with the bad.

The TRC was not created to deal with crime but to make a break with a very difficult political past.

If it was simply a case of telling the truth to be indemnified from criminal prosecution, then the mechanism existed in terms of the Criminal Procedure Act.

In addition, the applicants for amnesty could just as easily have gone to ground or left the country as an alternative to coming clean. When they committed those acts they believed they were doing it for the people suffering under apartheid or the government of South Africa. They thought that they were risking their lives for the people of this country.

They did not see themselves as criminals.

As such, I would have believed, and no doubt they believed, that the legislation for the TRC was extraordinary and that the section, given the circumstances for which it was created, would be given its broadest and most literal meaning when applied to individual situations and particularly where defamation is involved.

Even for Robert McBride.