Journalists and media watchdogs are usually among the most vigilant sections of civil society when the freedom of the press is at stake. It is strange then that there has been so little comment about the recent judgement against The Citizen newspaper for having defamed Robert McBride.

Given The Citizen’s notorious birth in 1976 as a publicly-funded secret government propaganda organ, perhaps nobody even now wants to be seen in its corner in the ring. Perhaps also the newspaper has incurred disapproval for having dug up an ugly incident which contradicts current sanitised and politically correct accounts of the liberation struggle. A third possibility is that the judgement has already had the effect of causing self-censorship lest others find themselves also lumbered with damages for the defamation of people such as McBride.

According to High Court judge GSS Maluleke certain facts were ‘undisputed’ during the trial. Among these were that a unit of Umkhonto we Sizwe led by McBride exploded a car bomb outside Magoo’s Bar in Durban in June 1986 killing three women and injuring many others. McBride was sentenced to death on three counts of murder and 79 of attempted murder. In 1992 he was released from prison after having been reprieved, and in 2001 he was granted amnesty by the Truth and Reconciliation Commission.

The seven articles to which he took exception essentially said he was a ‘criminal’ who had committed ‘cold-blooded multiple murders’ and was thus ‘blatantly unsuited’ to be made chief of police in Ekurhuleni. The judge found this to be unjustifiably defamatory, awarded R200 000 in damages, and ordered the defendants to pay costs. The Citizen will appeal.

The ‘crucial dispute’, Maluleke said, was the effect of McBride’s amnesty. It meant that the conviction was deemed not to have taken place. He rejected The Citizen’s contention that this could not mean that the amnesty erased or wiped out history. ‘The raking up without good cause and compelling reason of past offences of anyone granted amnesty for those offences [is] clearly impermissible.’ Nor was there relevance between the attack in 1986 and McBride’s suitability to be chief of police in 2003.

The judge said the defendants had failed to report that McBride had expressed ‘deep remorse’ or to take into account the amnesty granted to him. Accordingly, the ‘allegations of fact commented upon are essentially untrue and not accurately stated’. The defendants had therefore failed to ‘establish the required elements for the defence of fair comment’. One defendant, Andrew Kenny, conceded that ‘the only fact he based his comments on was the fact that the plaintiff had planned (sic) a bomb in 1986 that killed three women.’ Kenny ‘by his own admission’ had ignored the facts that McBride had acted in the context of the liberation struggle, been granted amnesty, and expressed remorse. This meant, said the judge, that Kenny failed the fair comment test because he ‘fails to justify the facts’.

The impact of this judgement will surely be that anyone commenting on murders committed in the course of the struggle which brought the African National Congress to power and for which amnesty was granted will have to tread very carefully to contextualise everything in such a way as in effect to play down the enormity of the crime.

The judge stated that when the articles were published (2003) McBride was ‘a well-known figure for his participation in the struggle against apartheid and activities post-apartheid.’ Arguably, however, McBride was better known for the overriding ‘undisputed’ fact of the Magoo’s bombing.

Maluleke also makes a bold finding about history. He describes as ‘factually incorrect’ a statement by Kenny that ‘apartheid was in retreat in 1986’. He says McBride and one other person gave ‘credible evidence’ to the contrary. There is in fact abundant evidence that apartheid was in retreat in 1986. That was the year in which PW Botha abolished the pass laws; black trade unions had been recognised in 1979; and the Group Areas Act was breaking down. Other instances could be cited. But that is not the point. Historians, journalists, politicians, lawyers, and ordinary people can argue about history and current events and interpretations thereof till the cows come home. They always have and they always will. The matter can hardly be settled by a pronouncement from the Bench.