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[1988] ZASCA 49
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S v Madiakotla (440/87) [1988] ZASCA 49 (17 May 1988)
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Certain personal/private details of parties or witnesses have
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DAVID
MADIAKGOTLA
APPELLANT
and
THE
STATE
RESPONDENT
H H NESTADT
CASE NO. 440/87
CCC
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
DAVID MADIAKGOTLA
APPELLANT
and
THE STATE
RESPONDENT
CORAM
:
GROSSKOPF, NESTADT JJA et BOSHOFF AJA
DATE HEARD
: 5 MAY 1988
DATE DELIVERED
: 17 MAY 1988
JUDGMENT
NESTADT, JA
:
Appellant was found guilty by
M
J STRYDOM/
2.
M
J STRYDOM J and assessors, sitting in a circuit court of the
Transvaal Provincial Division, on two
counts
of rape and two of murder. On each occasion,
the
victim was a young girl who was raped and then al-most immediately
thereafter murdered. Appellant was sentenced to 10 years'
imprisonment on each of the convictions for rape. It was directed
that these
sentences run
concurrently. No extenuating circumstan-
ces
were found to exist in relation to either of the
murders.
Accordingly, in respect of each of them,
the
death sentence was imposed. This appeal, brought with the leave of
the trial judge, is against such death sentences. In particular,
it
is directed
against/
3.
against
the finding that no extenuating circumstances
were proved.
Both
series of crimes occurred at
appellant's
home in the Black township of Daveyton,
in
the Benoni district. However, they occurred many
years
apart. The first took place on 15 September 1977.
Appellant
was then aged 26. J.K. lived about
four
houses away from appellant. She was 9 years old. He knew her. On the
morning in question he saw her returning from school.
What then
happened is des-cribed by appellant in a written confession which he
made on 10 July 1986
(shortly after his arrest on
the
second rape and murder charges). Appellant
stated the
following:
"Ek/
4.
"Ek
roep toe die kind en verkrag
haar.
Ek het haar in die eet-
kamer
verkrag. Ek het haar broekie
uitgetrek
en bo-op haar gel
ê
en my
privaatdeel in haar
privaatdeel ge-
sit.
Daarna het ek die kind dood-
gemaak.
Ek het die kind verwurg. Die kind het op 'n rusbank gel
ê
.
E
k het bo-op haar gesit
en met
my hande gewurg.
Toe ek sien sy is dood sit ek haar onder 'n bed wat in die eetkamer
was. Na 5 dae het ek 'n slegte reuk in die
huis geruik en toe vat ek
die lyk
en gooi dit in
die veld by 'n
bos. Toe
is ek terug huis
toe."
Deceased's
body was found the following day. According
to
the
post-mortem
report, the cause of death was "asphyxia probably due to
throttling". Some deep
bruising/
5.
bruising of the neck muscles was
observed.
The
second series of crimes took place
about
9 years later, viz on 27 June 1986. Appellant
was
then aged 35. This time, his victim was 16 year-old B.M.. She was in
fact appellant's niece.
She
stayed in the vicinity of where appellant was living.
Again,
the only evidence of what actually happened stems
from
a statement made by appellant to a magistrate.
It
is simply that:
"Ek
het haar eers verkrag en nadat ek
haar
verkrag het het ek haar gewurg totdat sy dood was ... en onder die
bed versteek".
Actually, according to another
statement by appellant, he raped her twice. From the evidence of his
mother,
it/
6.
it
is clear that what happened took place in the bedroom of his house.
But under what circumstances the de-ceased came to be there
is not
explained. Two days later, in appellant's absence, the body was
discovered under the bed. The post-mortem report gives the
cause
of
de
á
th
as "asphyxia due to strangulation and suffocation".
A
face cloth was found tightly stuffed in the mouth and and pair of
panties in the vagina. A number of bruises, abrasions and wounds
were
found on the body. In parti-cular,there was a gross haemorrhage into
the tissues surrounding the oesophagus and trachea, as
also
haemorrhage into and bruising of the muscles of the neck and the
sternomastoid muscles.
The hyoid bone was fractured.
Appellant's/
7.
Appellant's case that there were
ex-
tenuating circumstances was
founded on his alleged psychiatric condition at the time of the
commission of the crimes. Two psychiatrists,
Drs Porten and Catherina
le Roux,gave evidence in this regard. They
had
examined appellant consequent upon his. having,
on
28 July 1986, in terms of
sec 78(2)
of the
Criminal Procedure Act, 51
of 1977
, been referred for observa-tion. Their testimony confirmed
the written report
they had previously given. In summary, it
was to
the foLlowing effect: at
the time of the commission
of
the crimes, appellant, an "infantile, very passive" .
person, was able to
appreciate the wrongfulness of
his/
8.
his
act; however, because of certain long-standing abnormalities, he
probably had a diminished capacity to act in accordance with
such
appreciation; he
suffered
from an excessive sex drive; it took the
form
of paedophilia; this meant that it was directed
towards
young girls; he was also a sexual sadist;
he
obtained gratification not from the sexual act
per
se, but from the humiliation of and infliction
of
physical violence to his victims; afterwards
he
felt remorse for what he had done; he required
long-term
treatment; the chances of his being
rehabilitated were good.
It is,
I
think, to be inferred from
this/
9.
this
evidence that appellant's abnormal sex drive and
diminished
responsibility played a role in the commission
of
the rapes and, in relation to them, constituted a
mitigating
factor. This much the State conceded.
What
it contested was whether appellant's psychiatric
condition
also influenced the commission of the sub-sequent murders.
Appellant's case was that it had.
I
shall
assume, in his favour, that if it did, then
his
moral blameworthiness was thereby reduced to an
extent
sufficient to justify a finding of extenuating circumstances. The
State, however, contended that
there
was no causal connection between the two and that appellant had
killed for a different
reason,
viz to prevent his victims from identifying
him/
10.
him
as their assailant. It is clear that if this was so,
there
was no extenuation. The trial court held that appellant had failed to
rebut this as having been the motive for the killings.
This was the
reason for its conclusion that extenuating circumstances had not been
established.
The
issue before us is whether this finding
was
correct. In order to resolve it, it is necessary, in the first place,
to examine the psychiatric evidence in a little more detail
and to
quote certain passages from the doctors' testimony. Dr Porten dealt
with the connection between appellant's disorder and
the
killings
as follows:
"(M)urder/
11.
"(M)urder
and sex in such situation
is
so interwoven that it is really
difficult
because sexual and aggressive
drive
it is like the brothers, they
are
always going together ... (S)exual
aggression,
namely rape, obviously did not satisfy the aggressive component of
the impulse. And hence he carried further ...
I
mentioned
before that
usually
rapists they have a very over-
powering
hatred towards the women and
I
presume
the ultimate of any hatred is
elimination
of the object of their hate."
Dr le Roux's evidence on the point
reads:
"Kan
u vir die Agbare Hof enige aanduiding
gee
volgens u waarnemings van die beskuldigde,
waarom
hy, as dit die geval is soos u nou
getuig
het, ook ander misdrywe sou pleeg,
soos
byvoorbeeld moorde wat beweer word
dat hy gepleeg het? â Ek
sou sê dat die
moord 'n
deel is van die seksuele sadisme.
Is dit 'n spekulasie of is u
seker daarvan? â
Ek kan s
ê
dat dit waarskynlik so is, maar
ek
kan nie met sekerheid s
ê
dat dit so is
nie ... Ek
beskou dit as deel van die hele handeling wat daar plaasg
é
vind
het die
betrokke dag."
12.
She explained this as follows:
"Wel,
basiese seksuele sadisme waar 'n persoon seksuele plesier of genot
ervaar daarin om iemand te beseer of te verneder,
en die besering kan
dan
te ver gevoer word,
dat dit uiteindelik
in
die dood van die persoon eindig."
She
says that she asked appellant why he had killed his
second
victim (in 1986). Her evidence in this regard
was:
"Ek
het hom gevra of dit was dat hy bang
was
sy sou hom weggee, maar hy het dit
ontken.
Hy het ges
ê
hy weet nie. Hy
het ges
ê
hy het net die drang gehad om
haar
dood te maak ... Hy beskryf dit amper as a drang, dat hy dit ook nog
moet doen. Hy het haar nou verkrag, maar hy moet haar
ook nog
doodmaak."
Obviously/
13.
Obviously,
the pair of panties that was found in the
vagina
of appellant's second victim was placed there
by
him. Dr le Roux would seem to have regarded this
as an example
of his sexual sadism.
Clearly,
this evidence goes a long way to show that appellant's alleged sexual
aggressiveness and his diminished ability to control
it, were factors
in the commission, not only of the rapes, but also of
the
murders. What has been stated, however, does not give the whole
picture. When appellant appeared before
a
magistrate under
sec 119
of Act 51 of 1977 on the charges
which
he later faced in the court a
quo
, he made certain statements.
Asked about the murder of J.
K.
/
14.
K. (in 1977) he stated:
"Ek
het toe nadat ek haar verkrag het
gewurg
totdat sy dood was sodat sy nie
teen
my kon getuig nie. Ek het bedoel
om
haar te vermoor. Ek het geen rede
gehad
om haar dood te maak nie."
His
explanation for killing B.M. (in 1986)
was:
"Hoekom
het jy haar vermoor?
Ek
weet nie hoekom ek dit gedoen het nie.
Ek
het haar eers verkrag en nadat ek haar verkrag het het ek haar gewurg
tot sy dood was sodat sy
nie kon praat
oor die
voorval nie.
Het jy
bedoel of haar dood te maak?
Ja."
It is obvious that these
statements strongly militate against the contention that appellant
killed/
15.
killed
pursuant to his psychiatric condition. And they were, naturally,
taken into account by the trial court in finding that no
extenuating
circumstances had been established. Before us, however, it was argued
on behalf of appellant that too much weight had
been
placed
on them; appellant was of sick mind and mentally
disturbed
when he gave those answers; there were, moreover, indications in the
evidence that appellant's
motive was not to silence his
victims; thus he had
(at least
in the one case) merely hidden the body of the deceased under his
bed; and, after the second
murder, he had, having attempted
suicide, surrendered
himself to
the police and confessed to both series of
crimes;/
16.
crimes;
this was inconsistent with a motive to conceal detection. Indeed, so
it was stressed, in
his
one confession the magistrate noted the following:
"David
deel my op hierdie stadium mee
dat
hy nie weet waarom hy sulke goed
doen
nie want hy het nou net weer iemand
anders
doodgemaak. Dit is sy broer se kind. Hy s
ê
hy dink daar is iets
fout
met sy kop. Hy is nie seker nie."
In
all the circumstances, appellant's statements to the
magistrate
should, it was finally submitted, have been
held
to have been false.
The
argument is not without some substance.
There
do seem to be aspects of appellant's behaviour, and there are
statements that he made, which could be said
to
support a finding that, not only the rapes, but also
the/
17.
the
murders, were committed pursuant to an abnormal
personality
and whilst his ability to control himself
was
diminished. Indeed, according to the argument on extenuation, this
would seem to have been the initial
view
of the trial judge. The following testimony of Dr Porten supports it.
He said:
"But
he by himself came to the police,
confessing
to the present crime and
bringing
up by himself crime which was
committed
nine years ago. Therefore
logically
for me it does not make sense
to
kill somebody, to conceal the crime
and to confess to it."
Another
consideration which lends support to a finding
of
sexual sadism is that appellant admitted to having,
in
1978, committed a similar series of crimes, viz the
rape
and murder of a young girl. And the fact that
there/
18.
there
was no evidence that when, in 1977, he raped
two
other women (he was found guilty of these offences
in
1979 and sentenced to a total period of 12 years'
imprisonment)
his violence went beyond that required
to
gratify his sexual lust, is not, as" was argued by
the
State, against appellant being a sexual sadist.
The
exact circumstances of these crimes are not known.
I
have,
however, come to the conclusion,
for
the reasons which follow, that the argument cannot
be
sustained. As the trial court correctly appreciated,
the
views of the psychiatrists, though
at
first blush
positively
expressed, are substantially speculative.
A
few quotations from their evidence will illustrate
this.
Dr Porten was asked why appellant's aggression
should/
19.
should manifest itself in the form
of murder, rather than an assault. He answered:
"Okay
it might be his,
I
can
only
speculate
of course about that. It could be just an assault, it could not be
called so far but it depends on the power of the impulse
...
Aggression is
aggression.
It can be taken in different
forms.
It is possible that sexual
aggression
per
se did not satisfy the aggressive impulse which constitute
part
of this attack on the deceased... (W)e cannot predict the degree of
the
severity of the impulse."
Dealing
with the suggestion that appellant killed in order
to
silence his victims, the doctor said:
"If
the accused has satisfied his sexual
drive
and he knew that the witnesses well knew him was that not a reason
for him to kill the women
or the children?
â Theoretically it could have been of
course/
20.
course.
COURT
:
But you cannot rule that out
in the present case can you? â
In present case it is unlikely
but
it is possible."
Dr le Roux was similarly
hard-pressed to refute this having been appellant's motive. The pith
of her evidence in this regard ia:
"'n
Mens kan van die standpunt uitgaan
dat
hy moontlik sommige van die gevalle
gedood
het om te voorkom dat hulle dit bekend sal maak. Daarom dat ek s
ê
dit is moeilik om te s
ê
of dit de-
finitief so is
dat die moorde voortge-
spruit
het uit die seksuele sadisme ...
Dit
is 'n moontlikheid dat dit die
motivering
was, dit is ook 'n moontlik-heid dat hy wel deur die daad van
aggressie ook seksuele opwinding be-
leef
het en bevrediging ervaar het, wat
dit
dan in die kategorie van die sek-
suele sadisme sou plaas ...
Want/
21.
Want
ek wil die verband kry tussen die seksuele sadisme en h handeling
wat
tot die dood lei. â Ek het dit
basies
gestel as 'n moontlikheid dat die moord kon voortgespruit het uit
hierdie versteuring vanwee die wyse
waarop
hy dit vir my vertel het, dat
hy
twee keer met haar gemeenskap gehad
het
en toe het hy net die drang gehad
hy moet haar ook doodmaak."
These
concessions must seriously detract from the forc
ë
of the doctors' opinions that appellant was a sexual sadist.
Moreover, such diagnosis is open
to
the further criticism that it would seem to be founded
merely
on the fact that appellant murdered his victims. But this is
circuitous reasoning. It assumes what is
really
the issue, viz, did he kill because he was a sexual
sadist?/
22.
sadist? Apart
from the fact of the panties having,
in
the one case been found in deceased's vagina, there
is
no evidence to support an affirmative answer in this regard. On the
contrary, there are factors which tend
to
show that the doctors' hypothesis was not well-founded.
As
I
have
indicated, both girls knew appellant. This is some substantiation of
the tate case that he killed them so that they would
not expose him.
There was
evidence
that appellant did not display any sadism towards
his
girlfriend. This was despite the apparent existence of a strong
sexual relationship between them.
Most important, appellant did not
give evidence at his trial. His admissions to the magistrate
have/
23.
have,therefore,neither
been explained nor controverted.
More
specifically, there is no evidence from the one person who was able
to say why the deceased was killed. At the least, he could
have
testified to his alleged sadism. But he did not. The factors referred
to in the previous paragraph remain undealt with. And
the submission
that appellant told the magistrate what he did because he was then
mentally disturbed, is without foundation. On
the contrary, in his
written sec 112
statement
to the court a
quo
,
at the commencement of the
trial,
he said that he adhered to the statements he had made to the
magistrate (although he added, in con-
flict
with this, that he committed the offences "because
of/
24.
of
a psychiatric condition which manifests itself in my having
irresistable sexual urges which
I
cannot
control".
In any event,
I
agree
with Mr
van
den Berg
,
who
appeared for the State, that appellant's failure
to
effectively dispose of the bodies and his confessions
of
guilt, are no indication that his statement to the magistrate was not
true. It is clear that he was not
indifferent
to being caught. Appellant did, of course,
as
I
have
indicated, give a different version to the
doctors
and in his confession, why he killed. This,
too,
do
é
s
not, in the absence of a satisfactory explanation for having told the
magistrate that he killed to avoid being identified, avail
him.
On/
25.
On
a conspectus of all the evidence
I
am of
the opinion that it cannot be said that
the
trial court's finding that no extenuating cir-
cumstances
were proved, was wrong.
It
follows that the appeal must be,
and is, dismissed.
NESTADT, JA
GROSSKOPF JA )
) CONCUR
BOSHOEF, AJA )