The scales of justice tilted toward rehabilitation this week as the Supreme Court of Appeal (SCA) reduced Sabelo Cele’s prison sentence from 41 years to 28 years.

The court ruled that the original sentence for murder and attempted robbery was excessively harsh, failing to consider Cele’s age, first-time offender status, and his voluntary surrender to authorities.

Cele was one of five accused who were sentenced by the Gauteng Division of the High Court, Johannesburg, where he faced charges of murder, attempted robbery with aggravating circumstances, unlawful possession of a firearm, and illegal possession of ammunition.

At the SCA, Cele contended, among other submissions, that the sentence was unduly harsh and that the trial court did not sufficiently consider his personal circumstances.

He further submitted that the trial court placed excessive weight on retribution and deterrence while giving insufficient consideration to rehabilitation.

SCA Judge Tati Makgoka said: “It is settled that sentencing is a matter which falls preeminently within the discretion of a trial court. This is because the essential inquiry in an appeal against a sentence is not whether the sentence was right or wrong, but whether the court in imposing it exercised its discretion properly and judicially. Thus, a court of appeal can interfere with a sentence imposed by a trial court only on two bases.”

Judge Makgoka said the two bases are the misdirection and disparity bases, which are conceptually different. He said ‘the misdirection’ basis is where a material misdirection by the trial court vitiates the exercise of its discretion.

Concerning ‘the disparity’ basis, it is where the sentence imposed is marked. Citing another matter, Judge Makgoka quoted that the disparity must be “so marked that it can properly be described as shocking, startling, or disturbingly inappropriate”.

Judge Makgoka said the only aspect in relation to which the trial court erred, is in failing to consider the cumulative effect of the sentences it imposed in respect of the various offences.

“If the trial court was of the view that the gravity of the offence warranted a harsher punishment, it should have imposed life imprisonment. A cumulative sentence of 41 years and six months’ imprisonment is particularly inappropriate in the present case. The appellant was 28 years old at the time of sentencing, and a first-time offender who had left school at Standard 9. This suggests that he could be rehabilitated.

“The murder was an unplanned outcome of a failed robbery. The trial court accepted that the murder was committed with dolus eventualis (reckless intent) rather than direct premeditation. He had been in custody for 17 months awaiting trial. Furthermore, he voluntarily surrendered himself to the police after the murder, through the intervention of his father and a senior police official, Brigadier Ndlovu.

“This conduct, while not a demonstration of remorse in itself, is a significant mitigating factor demonstrating a willingness to submit to the authority of the law. A sentence of such magnitude serves to destroy the individual rather than to punish him or her. It ignores the legitimate element of rehabilitation,” said Judge Makgoka.

The SCA ordered that the previous sentence be set aside and replaced with an effective 28 years sentence. 

Cele would in respect of count 1 (murder) serve 18 years’ imprisonment; for count 2 (attempted robbery with aggravating circumstances) he would serve 10 years’ imprisonment. 

For count 3 (unlawful possession of a firearm) he will serve five years’ imprisonment; count 4 (unlawful possession of ammunition) six months’ imprisonment.

The sentences in counts 3 and 4 shall run concurrently with the sentence in count 1. 

chevon.booysen@inl.co.za

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