The State v Elias Makondo

The accused was employed as a domestic worker by an elderly couple, Elson Mberi and Faina Mberi (both over 70 years old), on 21 May 2019. The accused had misrepresented himself as a member of the Seventh Day Adventist church to gain the couple's trust and secure employment. On 24 May 2019, in the early morning hours around 0400, the accused took an axe which he had previously concealed in his bedroom and attacked the couple. He first struck Elson Mberi once on the head while he was making a fire, then proceeded to the bedroom where Faina Mberi was sleeping. The accused retrieved a torch from the injured Elson Mberi to illuminate the bedroom, and struck Faina Mberi three times on the head with the axe. After fatally wounding both victims, he ransacked the bedroom and stole US$233 and $30 ZWL, as well as a cellphone and torch. The accused then packed his belongings and fled, only accidentally leaving his identification card behind. Faina Mberi died from the injuries, while Elson Mberi was found seriously injured but alive when help arrived, though he later died. The accused surrendered to police after squandering the stolen money.

• Whether the accused unlawfully and intentionally caused the death of the two deceased persons
• Whether the accused had actual intention or legal intention to cause death
• Whether intoxication could serve as a defence to the murder charges
• Whether provocation could be a defence
• Whether the murders were committed in aggravating circumstances warranting enhanced punishment

The accused was found guilty on two counts of murder with actual intent as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to life imprisonment on Count 1 and life imprisonment on Count 2.

Murder with actual intention is established where an accused sets out with an aim to bring about the death of victims and proceeds to achieve that goal. Voluntary intoxication does not constitute a defence to murder where the accused retains the requisite intention, knowledge or realization as provided in section 221 of the Criminal Law (Codification and Reform) Act. Premeditation, use of a lethal weapon on a vulnerable part of the body (the head), attacking unsuspecting and vulnerable victims, and conduct after the attack (such as theft and fleeing) are evidence of actual intention to kill. Life imprisonment is appropriate for youthful offenders (27 years old) convicted of aggravated murder involving premeditation, targeting of elderly victims, and robbery, as an alternative to capital punishment.

The court observed that capital punishment would be appropriate in the circumstances of premeditated murder involving elderly victims, but life imprisonment could achieve the same objective of removing the accused from society while taking into account his youthful age. The court noted that while customary compensation does not bring back lost life, such a gesture would be a sign of regret and remorse. The court commented on the accused's dishonesty in misrepresenting himself as a member of the same Christian denomination as the victims to gain their trust, describing this as displaying clear premeditation and determination to achieve the unlawful enterprise. The anxiety experienced during the 2-year period of awaiting trial was acknowledged as a mitigating factor that cannot be understated.

This case illustrates the Zimbabwean courts' approach to premeditated murders committed against vulnerable victims during the commission of robbery. It demonstrates that voluntary intoxication is not a defence where the requisite intention for murder exists, applying section 221 of the Criminal Law (Codification and Reform) Act. The case also shows the court's consideration of life imprisonment for youthful offenders as an alternative to capital punishment even in cases of aggravated murder. The judgment emphasizes the protection of elderly persons from violent crimes and the court's duty to express societal displeasure at violent offences through appropriate sentencing. It reinforces the principle that murder with actual intention requires proof that the accused either desired to bring about death or reasonably foresaw death was substantially certain and persisted nonetheless.