Appellate division



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IN THE SUPREME COURT OF 50 (APPELLATE DIVISION)

In the matter between:

ROBERT JOHN McBRIDE appellant

and

THE STATE respondent.

CORAM: CORBETT, VILJOEN, HEFER, GROSSKOPF et VIVIER JJA. Date of appeal: 26 February 1988 Date of judgment: 30 March 1988

J U D G M E N T

CORBETT JA:

Shortly after 21h30 on 14 June 1986 what is popularly known as a "car-bomb" exploded outside the Parade Hotel in Marine Parade, Durban. It was a Saturday evening and the two bars in the hotel, "Magoo's" and the "Why Not", were filled to capacity. These bars have windows in their

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outer walls and at night the people in the bars are visible from outside the hotel. The effect of the explosion was devastating. Three persons, all women, were killed and eighty-nine were injured. The Parade Hotel building was very badly damaged: the doors and windows were all blown out and there was structural damage as well on all floors of the hotel. Other buildings in the vicinity were also damaged, but not as badly as the Parade Hotel. Debris from the explosion was scattered over an area described by a circle with a radius of 500 metres from the detonation point. It was obviously a very powerful explosive device.

In February 1987 the appellant, Robert John McBride, and a Miss Greta Margaret Appelgren (I shall re-fer to her as accused no 2) appeared before Shearer J and two assessors in the Natal Provincial Division on a number of charges including three charges of murder (counts 14, 15 and 16), one of attempted murder (count 17) and one of con-

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travention of sec 54(1) of the Internal Security Act 74 of 1982 - terrorism (count 18). Charges 14 to 18 inclusive arose out of the car-bomb explosion at the Parade Hotel, the State allegation being, generally, that the appellant and accused No 2 were responsible for having planted the car-bomb, with the intent necessary to constitute the various offences charged. The other charges, some of which applied only to the appellant, related to various offences under sec 54 of the Internal Security Act (counts 1 to 5 inclusive, counts 12, 13 and 18 to 24 inclusive), another charge of murder (count 6) and four charges of at-tempted murder (counts 7 to 10 inclusive). Both accused pleaded not guilty on all counts.

After a lengthy trial the appellant was found guilty on the following counts: count 1 (furthering the achievement of the objects of the African National Congress ("ANC"); count 3 (terrorism, in the form of attempting,

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on 6 January 1986, to plant limpet mines on certain trans-formers at an electricity sub-station in Durban); count 4 (terrorism, in the form of the detonation of limpet mines at another electricity sub-station in Durban on 21 March 1986); count 5 (terrorism, in the form of an attack upon the home of a Mr and Mrs Y P Klein in Wentworth, Durban during the night of 30 April/l May 1986, in which hand grenades were hurled into the bedroom of the house and both Mr and Mrs Klein were injured by shraphel); counts 7 and 10 (lesser verdicts of assault with intent to do grie-vous bodily harm) and count 11 (aiding a prisoner to escape), these counts all relating to a commando-like attack upon the Edenvale Hospital, Pietermaritzburg on 4 May 1986, with the object of "rescuing" from police custody a prisoner known as Gordon Webster, who was being treated in the hospital, and to the successful achievement of this "rescue"; count 12 (concealing and harbouring a terrorist, to wit the aforementioned Webster, over the period 4 to 9 May 1986);

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count 13 (the placing of an explosive device in a parking garage in contravention of sec 54(2)(a) and (f) of the In-ternal Security Act, the evidence establishing that the inten-tion was not that the device should explode, but that its discovery should cause disruption of traffic and general alarm); counts 14 to 18 inclusive, the substance of which

has been stated, and in regard to the three convictions for murder (counts 14, 15 and 16) the Court found, by a majority, that there were no extenuating circumstances; count 19 (terrorism in the form of the detonation of a limpet mine, placed in a refuse bin, in a Durban street on 22 June 1986); count 20 (terrorism in the form of exploding limpet mines on a vegetable oil tank in Durban on 22 June 1986); count 21 (terrorism in the form of exploding explosive devices on certain oil pipe-lines in Wentworth, Durban on 22 June 1988) — the acts to which counts 19, 20 and 21 relate having been committed on a single expedition; count 22

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(terrorism in the form of placing and detonating limpet mines on certain water pipes in the vicinity of the R628 freeway at Westville, Durban on the night of 29/30 June 1986); and count 23 (terrorism in the form of establishing certain caches containing arms, ammunition and explosives in Wentworth, Durban). It is not necessary to detail the counts upon which accused No 2 was found guilty, save to say that she was acquitted on all the charges reïsting to the car-bomb explosion at the Parade Hotel.

In respect of counts 14, 15 and 16 the trial Judge imposed death sentences on appellant; while in respect of the other counts on which he was found guilty the appellant was sentenced to various terms of imprisonment. Shearer J further granted leave to appeal to this Court against the finding, in regard to counts 14, 15 and 16, that there were no extenuating circumstances. That is the appeal now before us.

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The facts relating to the car-bomb explosion and appellant's participation in the crimes connected therewith are hardly in dispute and the following account is culled mainly from appellant's own evidence.

At the time of the car-bomb occurrence the appel-lant was 22 years and about 11 months old. He had met the aforementioned Gordon Webster in 1983 and a friendship had developed between the two of them. Webster was a member of the ANC and he recruited the appellant as a member to-wards the end of 1985. Appellant was assigned to the military wing of the ANC, known as "Umkhonto we sizwe", under the "special operations division" and received train-ing in Botswana in the operation of weapons, such as rifles and pistols, and the use of explosives. Initially his function was to provide transport and establish arms caches in various places, under the command of Webster. Later he undertook responsibility for sabotage operations. He then

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selected the targets and planned and, for the most part, executed the attacks. The convictions on the various counts detailed above bear witness to the scope of his activities in this sphere.

In June 1986 the appellant went to Botswana to try

to arrange compensation for the dependants of an ANC member

who was shot and killed by the South African police when

Webster was arrested. He returned to his home in Wentworth,

Durban on 13 June 1986. He thereupon learned that a

nation-wide state of emergency had been declared and many

people, including community leaders and certain of his

friends, had been detained. He heard stories of police

brutality. He himself saw people being rounded up for

detention. He read reports of what was happening in the

press. All this enraged him. He saw it as a "calculated

form of repression" against his people. As a member of

the ANC and "Umkhonto we sizwe", he felt that he had to do "something about it". He thought about it and on the

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morning of 14 June decided to make a car-bomb. As he

put it

"If they want war, I am going to give them war. That's what was going through my mind".

He then set about making the bomb. He purchased

a motor car, a powder-blue 1978 Ford Cortina, from a used-

car dealer and paid for it out of the compensation money

which he had brought from Botswana. After that he went

into town (ie Durban) to choose a target. He wanted a

target that was centrally situated so that the effect of

the explosion could not be hidden away. He eventually

selected Hyperama House and Home ("Hyperama"), a large

glass-fronted building in West Street. His intention

was to "flatten that thing, destroy it". Later in the

day, after dark, he fetched explosives from an arms cache.

With these he constructed the bomb in the boot of the Cor-

tina motor car. In addition to the explosive materials

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and detonating devices he also included 200 AK47 bullets and a number of pieces of burglar-proofing iron (which he cut for the purpose) to act as shrapnel when the bomb went off.

He had earlier told one of his ANC accomplices Matthew Lecordier (who gave evidence as a State witness) to make himself available that evening to meet some ANC friends. He fetched Lecordier at about 19h45. He had also arranged to meet accused No 2 on the pretext of going to a drive-in cinema. She came in her sister's motor car, a greenish-brown Mazda 323. Appellant and Lecordier drove off in the Cortina; and accused No 2 was instructed to follow in the Mazda, to park in Field Street, which turns off West Street close to Hyperama, and to wait for appellant and Lecordier. Appellant then headed for West Street. On the way he told Lecordier for the first time of the bomb in the boot of the car. (This

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does not accord with the evidence of Lecordier, who says that he was told about it earlier, but nothing turns on this. Appel-lant described to Lecordier his plan to park the motor car in West Street outside Hyperama and to detonate the bomb there. Upon their arrival at Hyperama appellant parked the Cortina and waited for accused No 2 to pass in the Mazda. She did. Appellant then told Lecordier that he was going to initiate the explosive device. Lecordier's response was to tell appellant that he was "wasting 50 kg's of explosives" there and he asked the appellant why he did not take the bomb down to the Marine Parade "because the people want White destruction". Appellant demurred, saying that it was not the policy of the ANC to attack White people. An argument then ensued, which became fairly heated. Ultimately appellant succumbed to Lecordier's persuasions and did not activate the bomb in West Street. In the course of the argument Lecordier had mentioned a verandah or balcony

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on the Marine Parade where White people sat and had suggested that the car-bomb be placed there. Appellant asked Le-cordier to show him this place. Appellant and Lecordier then got out of the Cortina and walked to Field Street, where they joined accused No 2. They entered her motor car and she was instructed to proceed to the Marine Parade. They drove down the Marine Parade and at a certain point Lecordier indicated by gesture the hotel balcony in question.

They then drove back to the Cortina where it was parked in West Street. Appellant and Lecordier drove from there in the Cortina, accused No 2 having been told to follow in the Mazda. They parked the Cortina in Pine Street and then appellant got into the Mazda with accused No 2, leaving Lecordier in the Cortina. Appellant and accused No 2 proceeded in the Mazda from there back onto the Marine Parade via West Street. They passed the hotel with the balcony, but there was no available parking place outside

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it. They carried on and found a parking place outside the Parade Hotel and parked there. Accused No 2 waited in the Mazda, while appellant walked back to where the Cortina was standing. He got into the car with Lecordier and they drove to the Marine Parade to where the Mazda was parked. On appellant's instructions accused No 2 moved the Mazda out of the parking bay and parked it further down the road. Appellant parked the Cortina in the bay just vacated by the Mazda. Appellant then activated the bomb fuse, which was set for a maximum delay of 15 minutes. It was exactly 21h30. Thereafter he and Lecordier waited in the Cortina for about two minutes so as not to attract attention. They then walked to where the Mazda was parked and drove away in it. They first stopped at a filling station to fill up with petrol. Acting under appellant's instructions, accused No 2 thereafter drove to Ridge Road, via Sydenham Hill, and parked near the police radio

station. Appellant's reason for instructing accused No 2

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to do this was apparently that he expected the police to seal off the area and start searching for the culprits soon after the bomb exploded; and he had been taught that if you follow those who are looking for you they will never catch up with you. At that stage appellant told accused No 2 about the bomb, which according to his calculations had by then exploded. She appeared to be shocked by this information. They then drove home to Wentworth.

On this and other State evidence the trial Court found appellant guilty of the murder of the three women who died when the car-bomb exploded. The Court further held that there was a reasonable possibility that accused No 2 had made no common purpose with appellant and Lecordier and for that reason she was acquitted on the murder counts and other charges arising from the Parade Hotel episode. Thereafter the Court heard further evidence on extenuating circumstances (certain such evidence having been led before conviction). To understand the judgments given on extenua-tion it is necessary to make some reference to this evidence.

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The causes of the appellant's behaviour, and in particular his actions in planting and detonating the car-bomb at the Parade Hotel, are to be found partly in his family background, his upbringing and early family life, the influence of his father, Derrick McBride, and the social circumstances in which he lived.

The appellant was born in Wentworth, Durban in 1963. In accordance with the race classification laws of the country he was classified as Coloured. Wentworth is a Coloured group area. His father was also classified as Coloured, but one of Derrick McBride's brothers is classified as White. Derrick McBride's mother tended to reject him because of his darker skin and general appearance. This embittered him and engendered in him an antagonism towards his brother. He became very active politically and, inter alia, was present at the meeting which produced the Freedom Charter. After an attempt to study medicine

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at the University of the Witwatersrand which was apparently frustrated by his mother, Derrick McBride eventually qua-lified as a teacher. He came to live in Wentworth in 1957, but did not settle down in the teaching profession. In the 1960's he abandoned teaching to become a welder and after a struggle established a welding business in Went-worth. In 1958 he had married Doris van Niekerk, the daughter of a White father and a Coloured mother. The appellant was their first child and only son. A close relationship developed over the years between father and son. Derrick McBride was evidently a man with a strong, assertive personality and he was a potent influence upon his son during the latter's formative years. He encou-raged his son to read the political and history books which were available in their home and he imparted to his son his own political ethos, including his hatred of White people. He told his son that "he (had) never come across

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a White man in history who (had) done anything honest".

The appellant's schooling was in Wentworth, apart from a year (1976) spent at a school in Kimberley. During the period 1976-80 he was actively involved in the unrest which occurred in schools, boycotts and demon-strations, aimed at the achievement of better educational standards. He experienced several clashes with the police, which angered and depressed him. Appellant matriculated in 1980 and was accepted into the faculty of mechanical engineering at the University of Natal in 198l. He was a good scholar and a keen and talented rugby player. At this stage appellant endeavoured to become assimilated in the White community. Apart from attending a "White" university, he joined and played for a "White" rugby club. His girl friend at the time was fair-haired and "White-looking". This attempt to "try for White" (as it was described) failed. Appellant never felt accepted. On

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the rugby field he had to endure insults from opposing team members and even some of his own club members made snide remarks behind his back. When out with his girl friend, he found himself exposed to antagonistic comments and be-haviour. His academic career at Natal University was also unsuccessful and he left at the end of June 198l. He joined his father's welding business and learned the welding trade. Towards the end of 1981 he joined a firm in order to qualify as an instrument fitter. This he did and thereafter worked for a while on the Sasol 3 project at Secunda. In February 1982 he returned to work as a welder in the shipyards at Durban. He then decided to become a teacher and in 1983 enrolled at the Bechet College of Education, a college for the training of Coloured teachers. It was here that he met Gordon Webster, a fellow student, and the two became close friends. Eventually, as I have indicated, Gordon Webster recruited the appellant for the ANC.

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Wentworth, where the McBride family lived, was described in evidence as a Coloured ghetto, "one of Durban's most depressed communities". The community was founded when the authorities moved Coloureds, made homeless by the Group Areas Act, into the military barracks. at Wentworth which had fallen vacant. Housing and edu-cational facilities were poor. Unemployment was high. Alcoholism, gangsterism and crime generally were rampant. Appellant's parents moved their home twelve times in their first four years of marriage before they were allocated a house; and then discovered that it was not the house they had been promised. They complained, but obtained no redress. Appellant had many clashes with gangsters. He was twice stabbed and on one occasion shot and killed a gangster in self-defence.

While at Bechet College appellant was angered by the poor facilities available. During the 30 years

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of its existence the college had not had adequate, fixed

premises of its own. He was elected to the Students'

Representative Council ("SRC"). During the period August

to October 1985 students generally in the country were

reacting to the political situation and venting their grie-

vances by means of stay-aways and boycotts. At Bechet Col-

lege the grievances of the students were focussed mainly

on the lack of permanent premises. Appellant, as a mem-

ber of the SRC, participated in attempts to obtain redress

from the authorities. According to him, they had no suc-

cess. On the contrary members of the SRC were victimized.

They were suspended from attending classes and the SRC was

banned. Asked during his evidence-in-chief about his

feelings at this point (the end of 1985) as a Coloured

person trying to advance himself, appellant replied:

"Well, since we were suspended and banned, after dealing with the issue at Bechet in a peaceful, legal man-ner and what came out of it - that

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we were suspended and so on - I decided that it can't work. If you can't pro-gress from within the system in any way, your progress is determined by those who you have to work with, those in authority. And there is just no hope for a so-called Coloured person to really progress inde-pendent of the constraints of the authori-ties. In other words they channel you and your progress is channeled and it's inhibited and I feel it's designed in this way to keep a person just at a certain level where they want you".

This was clearly a watershed moment in appellant's life

because shortly thereafter he joined the ANC and embarked

upon a career of criminal violence.

The reasons of the majority of the Court a


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