The State v Josias Mutikani

The accused, aged 24, was employed by Dorris Gill, an 86-year-old woman, as a gardener at her residence at number 34 Qalisa Village Suburbs, Bulawayo. He worked for the deceased for three weeks at a monthly salary of $100. During this employment, he discovered that the deceased kept money in a safe and located where she kept the safe key in the wardrobe. On 26 November 2011, the deceased terminated his employment but allowed him to sleep at the premises. On 27 November 2011, the accused entered the deceased's bedroom while she was sitting on her bed working on her laptop. He attacked her with a metal bar (weighing 1.03kg and 49cm long), striking her multiple times on the head, throttling her neck, and stabbing her. He left her on the bed and covered her face with a pillow. He then took the safe key from the wardrobe, opened the safe, and stole US$3,800, ZAR2,000, £200, a laptop, and a Nokia cellphone. The accused fled to Harare, then Masvingo where he bought three cattle, then to Beitbridge where he sold the laptop, and eventually to Mozambique and Malawi. He returned on 10 February 2012 and handed himself over to Nyamapanda Police. The deceased's body was discovered on 2 December 2011 by neighbours who noticed she had not been seen for several days and detected a smell of decay. Post mortem examination revealed 22 injuries to the head, multiple skull fractures, severe brain damage, bruises on the neck suggestive of strangulation, and multiple stab wounds.

• Whether the accused was guilty of murder with actual intent
• Whether the accused suffered from a mental disorder or defect at the time of committing the crime
• Whether aggravating circumstances existed to warrant the death sentence under section 48(2) of the Constitution and the General Laws Amendment Act of 2016
• What the appropriate sentence should be considering mitigating and aggravating factors

The accused was found guilty of murder with actual intent and sentenced to life imprisonment.

Murder committed with actual intent in order to rob, of a victim over 70 years of age, in a premeditated manner constitutes murder in aggravating circumstances under section 48(2) of the Constitution and the General Laws Amendment Act of 2016, which may warrant the death penalty. However, inordinate pre-trial incarceration through no fault of the accused constitutes a significant mitigating factor that may preclude the imposition of the death sentence. When conflicting psychiatric evidence is presented, the court must assess the thoroughness and reliability of the examination process, and may reject psychiatric opinions that are inadequately supported by clinical evidence, proper testing, or verification of the accused's claims.

The court observed that if the accused truly wanted to be killed as he claimed, he would have handed himself to police immediately or committed suicide rather than killing an innocent person. The court characterized the accused as 'inherently wicked' for killing a woman who had shown him kindness by employing him. The court noted that leniency is a hallmark of the law. The court commented that the accused was being deceptive about mental illness, noting that his claim he stole items for use as evidence in court could not be true since he had sold the items and spent all the money before surrendering to police.

This case is significant in Zimbabwean criminal law (though this is a Zimbabwean case, not South African) as it demonstrates the application of section 48(2) of the Constitution regarding when the death sentence may be imposed for murder committed in aggravating circumstances. It illustrates the application of the General Laws Amendment Act of 2016 which defines aggravating circumstances including murder to rob, murder of victims over 70 years, and premeditated murder. The case also demonstrates the importance of thorough psychiatric evaluation when mental fitness is raised as a defense, showing how courts will reject inadequately supported psychiatric evidence. It emphasizes that inordinate pre-trial delay through no fault of the accused is a significant mitigating factor that can save an accused from capital punishment even in cases with multiple aggravating circumstances.