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[1988] ZASCA 40
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S v McBride (40/88) [1988] ZASCA 40 (30 March 1988)

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
/ outer
2
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-
/ travention
3
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,
/ on
4
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);
/ count 13
5
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
/ (terrorism .
6
(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.
/ The
7
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
/ selected
8
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
/ morning
9
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
/ and ... .
10
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
/ does
11
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
/ on
12
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
/ it
13
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
/ to
14
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.
/ The
15
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
/ at
16
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
/ a
17
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
/ the
18
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.
/Wentworth
19
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
/ of
20
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
/ we
21
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
quo
for the finding of no
extenuating circumstances were expressed by the trial Judge in the following
words:
"The question with which we are here concerned is whether there exist
circumstances which mitigate morally albeit not legally the
guilt of Accused no
1 in respect of the murders of Angelique Pattenden, Marchelle Gerrard and Emily
van der Linde, all of
/ whom
22
whom were found to be at a place where it would be expected that by far the
most of the possible victims would be persons classi-fied
by the government of
the day as White. That is the background against which the Court must conclude
that there are or are not circumstances
which morally redeem the actions of
Accused no 1. I accept beyond question that Accused no 1 felt himself
representative of people
who had been re-located to Wentworth by Group Areas
Legis-lation, that in the course of time a sense of deprivation had turned into
frustration, frustration into anger and anger into vio-lence. I accept also that
the immediate spur of the actions with which we
are now concerned was the
proclamation of a na-tionwide State of Emergency on June 12th 1986. I suppose
also that it is easy when
you feel oppressed to associate the actions of those
who made the proclamation with those who have a White skin.
We live in a country in which unhappily many of the normal incidents of
freedom have been inhibited or removed by
/ legislation
23
legislation in which long years of White domination have blurred the fine
edges of moral judgment. The real dilemma that confronts
this Bench is derived
from the simple proposition that according to any morally acceptable code in any
civilised country you do not
punish persons presumed to be innocent for the sins
of those who offend you. We do not know what were the political affiliations
of
Angelique Pattenden, Marchelle Gerrard or Emily van der Linde. To kill them for
what you believe to be the sins of a government
is to offend as surely against
the primary moral code as those you believe to have offended, and to punish them
for a skin presumed
to be White is as racist as the very propositions that
Accused no 1 opposes. In reaching this conclusion we, the majority, take into
account all the aspects of the Accused's personal history that have been placed
be-fore us. The influence of his father which he
rejected and then re-embraced,
the in-ferior educational and other institutional facilities, the petty
indignities inflicted on him
by Whites, the inadequacy of any
/ constructive
24
constructive protest machinery and then by the national emergency with its
effect on the friends of Accused no 1 and the family of
Accused no 2, and
finally the persuasions of Lecordier. We have given all these fac-tors weight.
They explain that we must ask ourselves
whether they give to the Ac-cused's
actions a sufficient modicum of excuse. The act, the explosion of an enormous
bomb in the environment
where it could cause massive injury to a large number of
people is a gross, callous and atrocious act. The victims, I emphasise,
were not
faceless representatives of an oppressing authority. They were real people with
families and a right to have their own vision
of the future.
We cannot find the blandishments
of Lecordier as material
extenuation.
Accused no 1 was aware of the hazard to
life and limb with
his first projected
target, before it was moved to the Marine
Parade.
There was ample opportunity for
reconsideration. And so, sadly, we must
conclude that even considered in the context of frustration and anger, the
circumstances
/ operating
25
operating on Accused no 1 fall short of those which would extenuate his guilt
suf-ficiently to justify such a finding".
The reasons of the dissentient assessor,'"Prof J R L Milton, were read out by
Shearer J. Prof Milton found that the following significant
factors had a
bearing on the appellant's mind "at the time he did what he did":
"1. His personal experience and family background in which the effect of his
father's obsessive hatred of White people is an important
feature,
2.
His age. He is a young man
of an age still suggestive of lack of maturity and a thoughtless susceptibility
to the stress of intense
emotions.
3.
His
emotional state on the day in question, the State of Emergency, the round-ing up
of people including close friends, reports of
police violence embedded
in
him a state of mind in which rage reacted
upon the deep frustrations that he had
experienced as a young Coloured man in
/ racialistic
26
racialistic and racial society to lead to a compulsive, obsessive
determination to strike out at those he regarded as his persecutors.
4.
The fact that initially he
intended to commit not homicide but the destruction of
property.
5.
The fact that the decision to
place the bomb on the Marine Parade was made on impulse and under the influence
of
the emotional....(indistinct) of Lecordier".
He concluded that (a) the appellant's rage and anger on the day, arising as
they did from a background of political deprivation, paternally
induced racial
bitterness and frus-trations, (b) the nature of the appellant's original plan,
viz to place the bomb in West Street,
which "was motivated not by murderous
desire but a desire to protest the state of emergency" and (c) the influence of
Lecordier,
who persuaded appellant to change the plan and who consequently bore
a greater moral responsibility for what happened
/ than
27
than the appellant, sufficiently diminished appellant's moral blameworthiness
for it to be found that there were extenuating circumstances.
Shearer J concluded his judgment by remarking that the two judgments differed
in "their comparative evaluation of the weight to be
given to the circumstances
of the crime itself".
On appeal before us appellant's counsel, Mr
Gordon
, advanced various
arguments to show that the majority of the Court a
quo
came to an
incorrect decision and submitted that this Court should intervene and make a
finding of extenuating circumstances. Before
considering these arguments it is
appropriate to re-state the principles by which this Court is guided when asked
on appeal, in a
case of murder, to reverse a finding by the trial Court that
there were no extenuating circumstances. These are that the decision
as to the
existence or otherwise
/ of
28
of extenuating circumstances is, in the first instance, essentially one for
the trial Court; and in the absence of any misdirection
or irregularity this
Court will not interfere on appeal with the trial Court's finding as to the
non-existence of extenuating circumstances
unless that finding is one to which
no reasonable court could have come. This Court cannot substitute its view on
the question of
extenuating circumstances merely because it disagrees with the
view of the trial Court. Nor, in the absence of good grounds for interference
with the finding of the trial Court, does this Court express any view as to
whether the trial Court could or should have found extenuating
circumstances.
These principles are so well-established and have been stated and re-stated so
often by this Court that I do not deem
it necessary to quote supportive
authority.
As to what constitute extenuating circumstances,
/
various
29
various descriptions have been given. In
Rex v Fundakubi and Others
1948 (3) SA 810
(A), at p 815, Schreiner JA quoted with approval a passage from
the judgment of Lansdown JP in the case of
Rex v Biyana
1938 EDL 310
,
which contained the following:
"In our view an extenuating circumstance...
is a fact associated with the
crime which serves in the minds of reason-
able men to diminish, morally albeit
not legally, the degree of the prisoner's
guilt. The mentality of the accused
may furnish such a fact".
In his judgment Schreiner JA (at p 8l8) emphasized the
very great
importance of the "subjective aspect" of the
matter and added —
" no factor, not too remote or too
faintly or indirectly related to the commission of the crime, which bears
upon the accused's moral blameworthiness in committing it,
can be ruled out from
consideration".
In
S v Babada
1964 (1) SA 26.(A)
, at p 17 G
/ Rumpff JA
30
Rumpff JA described an extenuating circumstance as a cir-
cumstance
—
" wat die beskuldigde se geestesvermoëns
of gemoed beïnvloed het op so 'n wyse dat hy, wat sy wandaad betref, met
minder verwyt bejeën kan word".
In a later judgment the same learned Judge of Appeal stated
"Na aanleiding van wat reeds deur ons Howe beslis is, kan miskien gesê
word dat 'n versagtende omstandigheid 'n feit of feite
is wat betrekking het op
die gemoed of geestesvermoëns van die beskul-digde toe die moord gepleeg is
en waardeur sy sedelike
skuld, d.w.s. sy verwytbaarheid, ten opsigte van die
dood van die oorledene, volgens die oordeel van 'n redelike persoon, verminder
word".
(see
S v Petrus
1969 (4) SA 85
(A), at pp 94H - 95 A).
These
formulations have been followed in countless decisions
of this Court. Whether
the relevant factors should be
confined to those which have a bearing on the
accused's
mental faculties("geestesvermoëns") or state of mind
("gemoed") may be open to some debate. For example,
/ this
31
this would hardly seem to cover the case where extenuating circumstances were
found because the accused,one of a number of co-accused,
played a minor role in
the commis-sion of the murder (see eg
S v Dikgale
1965 (D SA 209 (A), at
p 214 E;
S v Smith and Others
1984 (1) SA 583
(A), at p 596 D, 617 F-G)
or the case where the murder was committed at the request of the deceased (see
eg
S v Robinson and Others
1968 (1) SA 666
(A), at p 678-9). In the
latter case Holmes JA pointed out that in such circumstances the moral
blameworthiness of the killer is
reduced for the deceased is not deprived
against his will of his right to live. In the vast majórity of cases,
however, the
relevant factors would be ones having a bearing on the accused's
mental faculties or state of mind.
The burden of proving, on a balance of probabili-ties, that there were
extenuating circumstances associated with the commission of
the murder rests
upon the accused
/ (
S v Theron
32
(
S v Theron
[1984] ZASCA 1
;
1984 (2) SA 868
(A) ).
It has further been held by this Court that
—
"The determination of the presence or absence of extenuating circumstances
in-volves a three-fold enquiry: (1) whether there were
at the time of the
commission of the crime facts or circumstances which could have influenced the
accused's state of mind or mental
faculties and could serve to constitute
extenuation; (2) whebher such facts or circumstances, in their cumulative
effect, probably
did influence the accused's state of mind in doing what he did;
and (3) whether this influence was of such a nature as to re-duce
the moral
blameworthiness of the accused in doing what he did. In deciding (3) the trial
Court passes a moral judg-ment".
(see
S v Ngoma
[1984] ZASCA 59
;
1984 (3) SA 666
(A), at p 673 H - I; and
see also
S v
Letsolo
1970 (3) SA 476
(A), at p 476 G -
H). This and other similar formulations are no doubt
helpful and conducive
to clarity of thought on the topic,
but they should not be treated as if they
are statutory
injunctions. What is essentially a flexible enquiry
/should
33
should not be so shackled.
Mr
Gordon
's first submission was that the
majo-
rity of the Court a
quo
misdirected
themselves in finding
(and placing reliance on the finding) that —
"The act, the explosion of an enormous bomb in the environment where it could
cause massive injury to a large number of people is
a gross, callous and
atro-cious act".
Developing this submission, counsel contended that the
manner in which an
accused person commits the crime of
murder is irrelevant to the enquiry as to
extenuating
circumstances and he referred in this connection to
the
judgment of this Court in
S v Ndwalane
1985 (3) SA 222
(A), at p 227 E-F. In that case the accused waylaid
the deceased at a taxi
rank and while the deceased was
sitting in his taxi talking to a young girl
the accused
walked up to him and shot him at close range. The evi-
dence
established that the accused committed this murder
/ because
34
because he believed (on good grounds as it later turned
out) that the
deceased had been responsible for the
assassination of one Dube, a former
community leader
and close friend of the accused's, and was distressed
by
this fact; and because of his frustration at the fact
that the deceased,
whose conduct was brazen and provocative,
appeared to be going unpunished.
The trial Court took
account of these facts but also emphasized that the
ac-
cused's crime was "a premeditated and cold-blooded assas-
sination
executed in furtherance of a plan which was
formulated some two weeks
previously" and held that there
was no extenuation. On appeal this decision
was reversed.
In his judgment Viljoen JA stated (at p 227 E - F) —
"As I read the judgment it would appear that the Court found that, because
the factors which otherwise would have been extenuating,
influenced the
appellant to take the law into his own hands and, by a carefully planned
stratagem, exact revenge for Dube's death,
any extenuation was wiped out or
neutralised. Such reason-
/ ing
35
ing postulates a weighing up of, or a
comparison between the extenuating
cir-
cumstances and the nature of the crime.
In so doing the Court a
quo
, in my view,
misdirected itself. The inquiry is
whether the
factors which subjectively
influenced the mind of the offender to
commit
the murder are extenuating or not;
the manner in which he committed the
mur-
der is irrelevant".
The judgment goes on to refer to and quote from the cases
of
S v Van
der Berg
1968 (3) SA 250
(A) and
S v Petrus
1969
(4) SA 85 (A).
In
Van der Berg
's case Botha JA stated (at
p
252 F - G):
"Dit is dus voor-die-hand-liggend dat, ofskoon in die aard van die wan-daad
'n aanduiding van die gemoedstoe-stand van die dader gevind
mag word, die vraag
of 'n bepaalde omstandigheid as 'n versagtende omstandigheid aangemerk behoort
te word, wat 'n subjektiewe onder-soek
na die gemoedstoestand van die wandader
verg, nie aan die aard van die wandaad getoets kan word nie. So kan provokasie
bv. 'n dader
se gemoed so beïnvloed dat dit aanleiding kan gee tot die
pleging
/ van
36
van 'n afskuwelike daad, maar die afskuwelik-heid van die daad kan die
provokasie nie as 'n versagtende omstandigheid uitwis nie".
There are certain observations to be made in regard to
this dictum. To
begin with, it would seem, on the face
of it, that there is a measure of
conflict between it
and what was stated by Schreiner JA in
Rex v
Fundakubi
and Others
,
supra
, at p 819, where he indicated
that a
belief in witchcraft might not be treated as an
extenuating
circumstance where the accused had "consciously used
un-
necessary cruelty in bringing about the death of the victim";
and by
the same learned Judge (as ACJ) in
R v Myeni
1955
(4) SA 196 (A), at p 199 C - D where he stated, upholding
a finding of no
extenuating circumstances, that the appel-
lant's belief that Z (who was considered to be an "mtagati"
or sorcerer)
had caused the deaths of certain members
of his family did not sufficiently
diminish the appellant's
blameworthiness "to override the callousness
involved
/ in
37
in burning three innocent persons to death". The facts were that the
appellant attempted to kill Z by burning down his hut, well-knowing
that at the
time there were present in the hut not only Z but also three other inno-cent
persons. Z escaped, but the others were
burned to death. The trial Judge
observed that extenuating circumstances would probably have been found had the
vic-tim been Z alone,
but the Court refused to make such a finding where the
appellant knew that he was probably going to cause the deaths of persons who,
even by his lights, were quite innocent. Neither
Fundakubi
's case nor
Myeni
's case appears to have been brought to the attention of the Court
in
Van der Berg'
s case.
The facts of Myeni's case resemble those of a hypothetical case that was put
to appellant's counsel during the course of argument,
viz a husband enraged by
his wife's adultery and in order to punish her murders
/ her
38
her child. I cannot believe that the fact that the victim was an innocent
child would not be relevant to the determination of extenuating
circumstances.
Moreover, an examination of many reported judg-
ments of this Court, and some unreported ones as well,
convinces me that it is not the practice to ignore the
nature of the crime or the manner of its commission where
these facts are relevant to the determination of extenuating
circumstances. In order not to overload this judgment
with authority I shall refer only, by way of example,
to certain more recent judgments:
S v Mhyanda
1976 (2)
SA 751 (A), at p 767-8 ("'n beplande roof, met volkome
onverskilligheid of die slagoffer mag sterf of nie");
S v Mafela and Another
1980 (3) SA 825
(A), at p 828
H - 829 B ("the planned nature of the robbery and the
excessive violence and callousness which accompanied it");
S v Modisadife
1980 (3) SA 860
(A), at p 862 H- 863 E
/ ("appellant
39
("appellant doelbewus en met voorbedagte rade die meisie (an innocent victim)
doodgemaak het"); S
v Hlatswayo
1982 (4) SA 744
(A), at p 746 A-B ("...this was a fatal
mission of
lawlessness at its worst; gangsterism akin to terrorism...");
S v Masuku and
Others
1985 (3) SA 908
(A), at p 913 F ("... a prolonged, brutal and
agonizing assault and the fact that he (the appellant) may not have had a direct
intention
to kill does not make his conduct less blameworthy");
S v
Kavandara
28.11.86 ("Hy het vir persoonlike gewin twee mense koelbloedig en
met berekende planmatigheid vermoor. Dit was 'n wreed-aardige en
snode daad, die
verwytbaarheid waarvan nie deur sy jeugdigheid verminder is nie");
S v
Sekgobela
3.3.87 ("koue, gevoellose optrede");
S v Mzinyane and
Others
26.11.87 ("... a most despicable crime. It was premeditated and
carried out in a careful and cowardly manner.... the whole matter
should fill
any right-thinking
/ person
40
person with revulsion"). Compare also S
v Caeser
1977 (2) SA 348
(A), at p 354 D-E.
The particular passage in the judgment in the
case
of
S v Van der Berg
,
supra
, which is quoted above
was commented
upon in
S v Petrus
,
supra
, by Steyn CJ
and Rumpff JA. The
Chiéf Justice's closely reasoned
judgment cannot easily be summarized,
but his conclusion
appears to be expressed in the following passage (at p
92 D-G):
"Dit beteken egter nie dat die aard van die wandaad, in die sin van die moord
en die wyse waarop dit uitgevoer is, by die beoordeling
van versagtende
omstan-dighede buite rekening gelaat moet word nie. Vir sover feite wat met die
moord in verband staan, by bedoelde
beoordeling ter sake is, kan hulle
vanselfsprekend nie uitgesluit word nie. Die manier waarop die dader te werk
gegaan het sou kan
aantoon dat hy bv. nie so dronk was as wat hy voorgee nie, of
dat beweerde voorafgaande provokasie geen noemenswaar-dige nawerking
by die daad
gehad het nie. By 'n vooruit beplande moord sou uit die
/ omstandighede
41
omstandighede met volkome sekerheid afgelei kan word dat n bewese hoë
graad van dronkenskap tydens die daad, geen aanleiding
hoegenaamd tot die daad
ge-gee het nie, dat dit die dader glad nie beïnvloed het nie, en daarom nie
as ver-sagting gereken kan
word nie. Die feit dat derglike aspekte van 'n moord
medebe-palend kan wees vir die bestaan of ander-sins van versagtende
omstandighede,
bring egter nie mee dat beweerde versagting buite bevinding
gestel kan word bloot deur die wreedaardigheid of snoodheid van die daad
nie".
Rumpff JA stated his viewpoint as follows (at p 95 H):
"Om vas te stel of daar versagtende omstandighede is of nie, spreek dit m.i.
vanself dat die feite van die misdaad sowel as die moontlike
omstandighede wat
as versagting sou kon dien oorweeg moet word. Die erns of afskuwelikheid van die
misdaad, as sodanig, kan nie die
moontlikheid van versagtende omstandig-hede
uitsluit nie. En ek dink nie iemand sou dit ooit wil beweer nie. Wat wel kan
gebeur is
dat wanneer die versagtende omstandighede oorweeg word in die lig van
die feite van die misdaad, 'n Ver-hoorhof sou kon bevind dat
die beweerde
omstandighede in die besondere geval nie volgens sy mening as versagting kan
geld nie".
/ Both
42
Both Judges considered that the dictum in
Van der Berg
's case was not
inconsistent with these conclusions. (See further
S v Bowers
1971 (4) SA
646
(A), at p 651 G -
652 c.)
The approach of Steyn CJ, as reflected in the above-quoted passage from his
judgment, is susceptible of the interpretation that the
facts relating to the
nature of the crime and the manner of its commission are only relevant to the
issue of extenuating circumstances
in order to rebut factually, or to evaluate
the influence of, an alleged extenuating circumstance, such as alleged
drunkenness or
provocation. In other words, that such facts would be relevant
only to the first two enquiries listed in
S v Ngoma
,
supra
, at the
passage quoted above, and not to the third. It is not clear to me, however, that
Steyn CJ intended to lay down such a principle.
It is true that he rejects the
approach, as does Rumpff
/ JA, that
43
JA, that alleged extenuating circumstances can be eliminated or wiped out
solely by reason of the brutality or heinousness of the
crime, but there are
indications in the judgments that the nature of the crimes and the manner of its
commission are relevant in
a more general sense to extenuating circumstan-ces as
being indicative of the accused's state of mind.
That this is a fair interpretation of
Petrus
's
case seems to be confirmed by what
was said by Rumpff CJ
in
S v Maarman
1976 (3) SA 510
(A), at p 512 H:
"Hoewel die grusaamheid van n daad nie versagting uitsluit nie is dit n
faktor wat oorweeg kan en behoort te word omdat van die grusaamheid
van die daad
n af-leiding gemaak kan word oor die
beskuldigde se geestestoestand gedurende
die pleeg van die daad en sy morele skuld
." (My emphasis.) (And I might add
that
Petrus
's case was referred to else-
where in this judgment. See also
S v Kavandara
,
supra
.)
In
S v Ndwalane
,
supra
, the Court referred to the same
passages in the judgments of Steyn CJ and Rumpff JA in
/
S v Petrus
44
S v Petrus
,
supra
(in the case of the latter I have quoted
merely portion of the same passage); and, in my opinion, the dictum from the
judgment of
Viljoen JA in
Ndwalane
's case relied upon by Mr
Gordon
and quoted above must be read in the light of what I have stated above.
In the recent case of
S v Mzinyane and Others
,
supra
, the trial
Judge, when dealing with the question of extenuating circumstances, had referred
to the facts surrounding the killing
of the deceased and stated that it was a
"most despicable crime"; premeditated and car-ried out in a careful and cowardly
manner,
with money as a motive. The Court concluded that the whole matter should
"fill any right-thinking person with revulsion". It was
argued on appeal, with
reliance upon the above-quoted passage from the judgment in
Van der
Berg
's case, that the trial Court had misdirected itself by testing the
extenuating factors argued on behalf of the appellants
/ against
45
against the horrible circumstances under which the deceased met his death. It
was held by this Court (
per
Jacobs JA, Corbett and Joubert JJA
concurring) that there had been no misdirection. Having considered what was
stated in
Van der Berg
's case, as explained in
Petrus
's case,
Jacobs JA held that the trial Court had not found that the horrible
circumstances under which the deceased met his death
per se
excluded any
extenuating circumstances: the trial Court had paid due regard to the
extenuating factors conten-ded for, but when it
came to the third part of the
threefold enquiry outlined in
S v Ngoma
,
supra
, the Court, having
to pass a moral judgment, had come to the conclusion that taking all the
circumstances into consideration, it
had not been shown that the moral
blameworthiness of the appel-lants had been reddced. In so doing it had not
misdirected itself.
/ I shall
46
I shall now endeavour to sum up the present state of the law on this aspect
of extenuating circumstances. The nature of the murder
(and here I would include
the identity of the deceased and the relationship, if any, between the accused
and the deceased) and the
manner of its commission are factors which, while they
cannot be regarded as
per se
excluding extenuation, are neverthe-less
relevant to the general enquiry as to-extenuation. They may be relevant to the
factual enquiry
as to whether an alleged extenuating circumstance in truth
existed or as to whether it actually influenced the accused; or they may
be
relevant as part of the web of circumstances associated with the crime which
must be considered by the court when it passes its
moral judgment and decides
whether there exist circumstances which in the minds of reasonable men diminish
the accused's moral blameworthiness.
I now proceed to consider the argument by Mr
/
Gordon
47
Gordon
that the majority of the trial Court in the present case
misdirected themselves by having regard to the nature of the crime committed
by
the appellant, viz "the explosion of an enormous bomb in the environment where
it could cause massive injury to a large number
of people", which they
characterized as a "gross, callous and atrocious act". It is clear to me that
the majority weighed this factor,
together with the various grounds of
extenuation mentioned in this judgment, in passing a moral verdict upon the
conduct of the accused.
In doing so, they acted in accordance with the legal
position as I conceive it to be and committed no misdirection. Counsel's first
ground for interference with the decision of the majority can accordingly not
succeed. The same goes for the re-lated submission
that the majority of the
Court misdirected themselves by weighing the extenuating features against the
aggravating factors and finding
that the latter out-
/weighed
48
weighed the former. If by this is meant (as I understand it to mean) that the
majority of the Court had regard to the nature of the
crime and the manner of
its commission in passing moral judgment, then as I have shown, théy were
guilty of no misdirection.
It was further argued by Mr
Gordon
that the majority of the trial
Court misdirected themselves by having regard to the identity of the victims.
This sub-mission runs
directly counter to the decisions of this Court in, eg,
R v Myeni
,
supra
,
S v Modisadife
,
supra
, ahd, as I
have shown, is not well-founded in law. It is no ground of misdirection.
In the alternative, Mr
Gordon
argued that the finding of no
extenuating circumstances was one to which no reasonable court could have come.
In this regard he stressed
(i) the appellant's "psychological make-up", (ii) his
politicization, (iii) the influence of his father,
/iv
49
(iv) the social conditions at Wentworth where he had grown up, (v) his
position as a Coloured person, (vi) the impact upon his state
of mind of the
declaration of the state of emergency and (vii) the change of target under the
influence of Lecordier. In this judgment
I have referred at some length to the
first fiye of these factors. They undoubtedly explain why the appellant joined
the ANC and
participated in its acts of terrorism, aimed mostly at inanimate
targets, the "rescue" of Gordon Webster and so on. It must be accepted
toó that the declaration of the state of emergency and the police action
and detentions which accompanied it further exacer-bated
appellant's feelings
and induced in him an urge to "hit back". At the same time there must be taken
into account the enormity of
what he did, namely the placing of a bomb of great
explosive power in a place which was deliberately chosen for its potential to
kill and injure
/ innocent
50
innocent persons. According to appellant such action was contrary to
ANC policy. There must be borne in mind too that the appellant
had ample
opportunity to reflect upon what he was proposing to do during the whole of that
fateful Saturday while he was purchasing
the Cortina motor car, collecting the
explosives, making the bomb and waiting for nightfall to carry out his design.
It is true that
the original plan of placing the bomb in West Street, if carried
out, would probably not have been as destructive of life and limb
as the plan
which was eventually executed, but appellant must have realized that even in
West Street there was a real risk of the
bomb killing or maiming persons who
happened to be in the vicinity. The change of plan was in order to achieve
"White destruction".
Admittedly this change of plan was instigated by Lecordier,
but appel-lant decided to adopt the change after debating the matter
and, even
after having so decided, the appellant had the
/ opportunity
51
opportunity to reflect. Judging from all the coming and going and manoeuvring
of vehicles, at least twenty minutes to half an hour
must have elapsed between
the decision to change the plan and the placing of the car-bomb outside the
Parade Hotel.
Mr
Gordon
contended that this Court has recognized that a killing in
pursuance of a political objective may in appropriate circumstances be
viewed in
"an extenuating light" and he referred in this connection to the case of
S v
Mkaba and Others
1965 (1) SA 215
(A). But, as pointed out in that case, it
all depends upon the particular circumstances of the matter and in fact in
Mkaba
's case this Court refused to interfere with the decision of the
trial Court that the "political motive" did not serve to extenuate
the crime.
(Cf. also
S v Harris
1965 (2) SA 340
(A).)
/ As
52
As I have emphasized, it is not for this Court to pass its own judgment on
extenuation. In the absence of misdirection or irregularity,
of which there was
none, the question which this Court must consider is: was the majority decision
of the Court a
quo
one to which no reasonable court could have come?
After careful consider-ation I am of the view that this question must be
answered
negatively. There is accordingly no ground for interference with the
majority decision of the Court a
quo
on the issue of extenuating
circumstances.
The appeal is dismissed.
M M CORBETT. VILJOEN JA)
VIVIER JA)