20 June 2010, 09:59
By Nathi Olifant
Relatives of prominent anti-apartheid activists killed during the apartheid era are set to square off with Robert McBride at the Constitutional Court over his legal fight not to be called a murderer.
Mbasa Mxenge, son of slain ANC-aligned struggle lawyers, Griffiths and Victoria Mxenge, believes the way amnesty is being interpreted limits his ability to refer to the killers of his parents as "murderers".
This pits him against McBride, who was given amnesty for the 1986 bombing of the Magoo's Bar on the Durban beachfront, which killed three women and injured 69 people.
McBride applied for and was granted amnesty by the Truth and Reconciliation Commission for his actions while a member of the ANC's military wing, Umkhonto we Sizwe. When he became chief of the metro police for the Ekurhuleni Metropolitan Municipality, The Citizen newspaper labelled him a murderer.
McBride sued for defamation and the Supreme Court of Appeals ruled in his favour, holding that the granting of amnesty by the Truth and Reconciliation Commission removed the conviction "for all purposes" so that anyone who describes such acts as "murder" and any statements referring to an amnesty applicant as a "murderer" would be considered false and had grounds for defamation.
The Citizen has taken the case on appeal to the Constitutional Court.
In a statement released yesterday, the civic organisation, the Khulumani Support Group, said two surviving relatives of apartheid victims had filed an application to intervene in the case as friends of the court.
"Both wish to protect their rights to refer to the killers of their loved ones as murderers. If the decision of the SCA stands, they may face an untenable prospect of being sued for defamation, should they speak or publish the full truth by referring to their loved ones' killers as murderers. They will tell the Court that no law may render the truth as false for purposes of public debate and discourse," said Tshepo Madlingozi of the Khulumani Support Group.
The victims want to argue that the freedom to speak the truth about the events of the past should not be suppressed. They hope to preserve the legacy of the negotiated transition, which gave birth to South Africa's new constitutional order as well as the TRC and its amnesty process that sought to bring the truth to light.
Mbasa is the eldest son of Griffiths and Victoria Mxenge, who were both human rights lawyers in Durban and who were murdered in separate incidents in the 1980s.
Three members of the South African Police Force were convicted of murdering Griffiths Mxenge in 1981. They were, however, exonerated after a full confession and testimony to the TRC and, in 2001, were granted amnesty.
The other applicant is Joyce Sibanyoni Mbizana, the sister of murdered activist Justice Mbizana, who was abducted in 1987 by members of the Northern Transvaal Security Branch, tortured and murdered.
Eight men confessed to participating in Justice Mbizana's death and were granted amnesty by the TRC in 2003.
"Until the decision of the Supreme Court of Appeal in this matter, I enjoyed a right to speak freely about the crimes perpetrated against my brother and in particular I enjoyed and asserted a right to refer to the killers of my brother as murderers," said Joyce Mbizana.
"If the decision of the SCA stands, I may face the sanction of a defamation suit should I speak or publish the full truth by referring to my brother's killers as murderers," she said.
The defamation case against McBride related to mainly editorial comment and opinion published in The Citizen in September and October 2003.
The articles questioned McBride's suitability for the position of metro police chief, referring to his criminal record that stemmed from the apartheid-era bombing of the Durban bar. The paper also mentioned his having been detained for gun dealing in Mozambique.
Mbizana and Mxenge are supported by an alliance of South African civil society organisations comprised of Khulumani Support Group; International Center for Transitional Justice; Centre for the Study of Violence and Reconciliation; South African History Archives; Human Rights Media Centre; and the Institute for Justice and Reconciliation.