Evita Bezuidenhout, talking about the revelations of apartheid era Vlakplaas hitsquads and the claim by many white South Africans that they never knew about the extra-judicial killing and torture of black South Africans by the police, said that "the future is certain; it's the past that is unpredictable".

Last week the Supreme Court of Appeal (SCA) reminded us how true these words of Tannie Evita is for South Africa. Writing another chapter in this novel called our past, the court in effect wiped out a swath of human rights abuses perpetrated during the apartheid era.

According to the SCA, Dirk Coetzee, David Tshikalange and Butana Almond Nofomela never murdered Durban attorney, Mr Griffiths Mxenge, in November 1981. Adriaan Vlok never ordered the bombing of the headquarters of the South African Council of Churches at Khotso House, and the COSATU trade union headquarters in Johannesburg. Eugene de Kock, Craig Williamson and General Johannes Coetzee never bombed the London offices of the African National Congress in 1982.

Of course, we know these events did happen. The perpetrators were, after all, granted amnesty by the Truth and Reconciliation Commission (TRC) for having done these things. But according to the SCA, because the TRC granted the perpetrators amnesty, a newspaper could not claim that such individuals were murderers or criminals as this claim - which obviously would be defamatory - would also be false.

This, at least, is the consequence of the majority decision of the SCA in the case of The Citizen and Others v Robert McBride. Streicher JA (for the majority) thus found that The Citizen had defamed Robert McBride when it referred to him as a criminal and as murderer. While it was true that McBride planted a bomb in a pub in which three civilians had been killed and that he had been convicted and sentenced to death for these "crimes", the newspaper could not rely on the traditional defense against defamation(that the defamatory statements were true and were in the public interest or that it was fair comment based on proven facts) because McBride was granted amnesty. It was therefore false to claim that he had been a murderer. He was not a murderer as the TRC had granted him amnesty for committing those murders.

Mthiyane JA (for the minority) disagreed, stating (correctly, I would contend) as follows:

"...the right thinking reader of The Citizen would have been left with the impression that the authors are clearly and principally commenting or expressing an opinion on the suitability of the plaintiff as a candidate for appointment as police chief. As I see it the reader would have understood the writers to be arguing, rightly or wrongly, that because of the plaintiff's involvement in the bombing of Magoo's bar and the Why Not restaurant in 1986, which had fatal and disastrous consequences for many innocent people, and his subsequent conviction and sentence, he ought not to be appointed to the post of chief law enforcement officer of a large municipality. Despite the strong and robust language used and the somewhat extreme (if not, right-wing) views expressed, the articles and editorials remain comment or opinion on the issue of his suitability for the position of the Metro Police Chief."

The fair comment defense did not require that the comment had to be fair in an objective sense, nor did it require the comment to be impartial or well-balanced. "Fair" in this context means only that the opinion expressed must be one that "a fair man, however extreme his views may be, might honestly have, even if the views are prejudiced". Critical for the newspaper would be that the factual allegations on which the comment was based could be shown to be true. The minority points out the absurdity inherent in the majority opinion:

"My colleague says that these facts cannot be obliterated from the historical record and that it is a well known fact that he is a murderer, but then goes on to suggest that the granting of amnesty rendered that fact false ─ a suggestion with which I join issue. This is by no means intended to downplay the broader motives which the plaintiff may have had, namely to free the then downtrodden majority of the people of this country from the evil system of apartheid."

The TRC Act made it clear that the effects of being granted amnesty would be to insulate a person from criminal and civil liability and to expunge the criminal record of the person granted amnesty. Last year the Constitutional Court found in the case of Du Toit v Minister of Safety and Security that Wynand du Toit, who was sentenced to 15 years imprisonment for the murder of the "Motherwell Four" but was later granted amnesty for these despicable deeds (am I allowed to write this without defaming Du Toit?), did not have a right to be reinstated as a police officer because of his amnesty. The Court warned against a "purely literal and de-contextualised reading" of the TRC Act, which would lead to a conclusion that:

"...the grant of amnesty has the effect of expunging not only the record of the conviction and sentence imposed on the perpetrator, but also all consequences that follow that conviction and sentence, past, present and future. There are, however, serious difficulties with that interpretation."

It was one thing to alter the public record, but another to change history and to assume for purposes of the law of defamation that certain acts - which did take place - actually never took place after all.

The majority decision has a somewhat Orwellian character as it holds that the TRC Act now requires us to pretend that what actually happened in the past, never really happened. We have to pretend that all those people who were granted amnesty for the most heinous crimes (once again, am I defaming anyone by writing this?) never really did anything wrong. It forces a kind of legal amnesia on all of us and fails to heed warnings that we should never forget the past - lest we repeat it.

I hold no personal grudge against McBride. He was granted amnesty for a politically motivated act in which several women were killed. Just like De Kock and Coetzee, he took part in the amnesty process and his criminal record was expunged. Good for him. Unlike De Kock and Coetzee his deeds formed part of the liberation struggle.

Personally I do not believe his conviction for acts for which he was granted amnesty (but which the majority in the SCA would rather us not mention at all) disqualifies him from being a police chief. The fact that he is alleged to have crashed his car after a day of heavy drinking, that he is further alleged to have obtained a fake medical certificate to cover this up and is alleged to have intimidate witnesses, might well - if proven - disqualify him from ever holding any job, but that is for a court to decide.

But the principle seems important. A ruling that the TRC amnesty process requires us to suddenly be struck by a dangerous amnesia about the past, is destructive and illogical. In a democracy with a free media it is impossible to rewrite the past and to pretend proven facts never happened. That is what the SCA majority in effect requires us to do. I do not want to have any part in perpetuating those kinds of lies and the rewriting of history. Granting all those criminals amnesty was bad enough. Surely it is a bridge too far to expect us to forget they ever did those things.

Professor Pierre De Vos is Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town. This article first appeared on his website http://constitutionallyspeaking.co.za

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