The State v Bhekinkosi Masilela

The accused was convicted of murder with actual intent by the late Mutema J and was initially sentenced to death. The victim was the accused's 83-year-old paternal grandmother. The grandmother had raised the accused after his biological mother died in 1995. The murder occurred in 2013 when the accused was 29 years old. The deceased narrowly escaped death from a burning hut but was then killed by a decisive blow delivered by the accused. The accused had smoked dagga (cannabis) prior to committing the offence. Throughout the trial, the accused maintained he did not know why he murdered the deceased, and the trial court could not establish a motive. The murder was not premeditated.

• Whether the murder was committed in aggravating circumstances warranting the death penalty
• What constitutes an appropriate sentence for murder with actual intent in light of section 48(2) of the Constitution of Zimbabwe
• The relevance of drug intoxication as a mitigating or aggravating factor in sentencing
• The appropriateness of the death penalty in cases where there is no established motive

The accused's death sentence was set aside. The accused was sentenced to 18 years imprisonment for murder with actual intent.

For the death penalty to be imposed in murder cases, aggravating circumstances must be established. A murder will not be considered to have been committed in aggravating circumstances warranting the death penalty where: (1) there is no established motive; (2) the murder was not premeditated; and (3) the accused was under the influence of drugs at the time of commission, even where the victim was elderly and vulnerable. Time spent on death row awaiting execution constitutes punishment in itself and is a significant mitigating factor in re-sentencing. In determining appropriate sentences for murder, courts must be guided by section 48(2) of the Constitution and carefully weigh all mitigating and aggravating factors.

The court observed that drug abuse, particularly dagga smoking, is frighteningly on the increase in Zimbabwe and the accused has become part of the statistics of those who have committed very serious offences after drug abuse. The court noted that society legitimately expects young people to protect their elderly relatives and not to be responsible for terminating their lives. The court commented that no penalty can adequately recompense the loss of life because of the permanent nature of such loss, but courts must nonetheless impose sentences that meet the justice of each case. The psychological burden of having killed one's grandmother who raised them will haunt the accused forever and earn them a permanent negative reputation in the family.

This case is significant in Zimbabwean jurisprudence as it demonstrates the application of constitutional principles regarding the death penalty under section 48(2) of the Constitution of Zimbabwe. It illustrates how courts must carefully assess whether aggravating circumstances exist before imposing the death penalty, and establishes that the absence of motive, lack of premeditation, and drug intoxication may combine to make the death penalty inappropriate even in cases of murder with actual intent of an elderly victim. The case also highlights the mitigating effect of time spent on death row awaiting execution. It reflects a more restrained approach to capital punishment in line with constitutional requirements.