FXI Law Clinic Cases

The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception. 

Brief history of the FXI Law Clinic

The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.

The Citizen and McBride
The Citizen 1978 (Pty) Ltd. v. McBride (CCT 23/10) [2011] ZACC 11 (8 Apr. 2011)
The Citizen newspaper printed a number of articles, dubbing Robert McBride (the respondent) a "murderer" and "criminal" for his role in the bombing of civilian locales as part of the ANC militant wing, Umkhonto we Sizwe. During the apartheid regime, McBride had been tried and convicted of murder, but later received amnesty as South Africa moved past apartheid and towards reconciliation. In 2003, McBride became a candidate for the position of chief of Ekurhuleni Metro Police and the Citizen responded with the allegedly offensive articles in opposition of his candidacy. McBride brought suit against the newspaper for defamation.
The newspaper faced a potential obstacle because of the grant of amnesty afforded to McBride, which according to the Reconciliation Act, expunged his conviction "for all purposes, including the application of any Act of Parliament or any other law." McBride contested the reference to him as a "murderer" as contravening the Act. The court thus considered the effect that the provision (which recognized that a conviction is deemed "for all purposes" not to have taken place) has on the law of defamation as well as public discussion of the conviction in newspapers or other mediums.
The FXI and SANEF intervened as amici curiae, arguing that the potential suppression of such speech violates the section 16 right to free expression and works against the primary objective of the Reconciliation Act: to promote truth-telling. The court agreed that the granting of amnesty did not shield the respondent from the public discussion of his former conviction; a grant could not erase the past and did not "change" historical facts. The court pointed to the DuToit decision to buttress their finding in the present case. The court also significantly suggested that South Africa was still exploring the concept of reconciliation and what it exactly entailed.
Once it established this portion of the case (that the newspaper could, in fact, print information about McBride's former conviction without contravening the Reconciliation Act), the Court next turned to the defamation claim levied by the respondent. While the Court believed that the Citizen's reporting was distasteful, it recognized that the coverage was generally not defamatory as a legal matter. However, the Court did take issue with the claim that McBride was not "contrite," pointing to McBride's testimony to the contrary. The demonstrable falsity of the allegations made the statement defamatory. In coming to this decision, the court weighed McBride's right to dignity (section 9) with the right to freedom of expression (section 16). The Court also rebuffed the notion that an apology was the appropriate remedy since it minimized the chilling effect of defamatory law had on free speech. Accordingly, it awarded a modest amount of R 50 000 to McBride.
Open/View PDF (The-Citizen-v-McBride.pdf)
April 08 2011 By Freedom Of Expression Institute the citizen , mcbride