Brief Summary

Criminal Procedure — Sentence — Appeal against sentence for murder and related charges — Appellant sentenced to an effective term of 41 years and 6 months imprisonment — Trial court's refusal to accept submissions from counsel in mitigation of sentence deemed a misdirection — Appeal upheld, and sentences reduced to a total effective term of 28 years imprisonment.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal against sentence only in the Supreme Court of Appeal of South Africa, following the granting of special leave to appeal. The matter was disposed of without oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.

The appellant was Mr Sabelo Dan Cele, who had been accused number 5 in a multi-accused trial in the Gauteng Division of the High Court, Johannesburg. The respondent was the State.

In the trial court, the appellant was convicted of murder, attempted robbery with aggravating circumstances, unlawful possession of a firearm, and unlawful possession of ammunition. The trial court imposed an effective sentence of 41 years and 6 months’ imprisonment after making concurrency and consecutivity orders. On appeal to the full court (South Gauteng High Court, Johannesburg, sitting as a court of appeal), the sentence on attempted robbery was reduced from 17 to 15 years, but the effective sentence remained unchanged. The appellant then appealed to the Supreme Court of Appeal.

The general subject-matter of the dispute concerned whether the sentencing process was vitiated by an alleged irregularity under s 274 of the Criminal Procedure Act 51 of 1977, and whether the effective determinate sentence was shockingly inappropriate, particularly in light of the cumulative effect of multiple sentences.

2. Material Facts

The appellant stood trial with four co-accused and was convicted on four counts: murder, attempted robbery with aggravating circumstances, unlawful possession of a firearm, and unlawful possession of ammunition.

The murder charge was read with s 51 of the Criminal Law Amendment Act 105 of 1997, attracting a prescribed minimum sentence of life imprisonment in terms of s 51(1). The trial court found substantial and compelling circumstances under s 51(3) and therefore deviated from life imprisonment.

The trial court imposed the following sentences: 30 years (murder), 17 years (attempted robbery), 5 years (firearm), and 6 months (ammunition). It ordered that 5 years of the attempted robbery sentence and the entire ammunition sentence run concurrently with the murder sentence, while ordering the firearm sentence to run consecutively, producing an effective term of 41 years and 6 months.

On appeal, the full court reduced the attempted robbery sentence from 17 to 15 years, but left intact the structure of concurrency and consecutivity such that the effective sentence remained 41 years and 6 months.

A key factual feature relevant to the sentencing stage was that the appellant did not testify in mitigation. The trial court, relying on s 274 of the Criminal Procedure Act, indicated it would receive mitigating information as evidence and declined to accept mitigating “facts” merely stated from the bar by counsel. The court nonetheless attempted, “in fairness”, to extract mitigating factors from the trial record and exhibits, including a copy of the appellant’s identity document and aspects emerging from the evidence.

The sentencing court treated as relevant the following personal and contextual circumstances drawn from the record: the appellant was 28 years old at the time of sentencing, a first offender, had left school at standard 9, and had spent 17 months in custody awaiting trial. It was also recorded that the appellant voluntarily surrendered to the police after the murder through the intervention of his father and a senior police official.

On the merits of the murder, the trial court accepted that the murder was committed with dolus eventualis (reckless intent) rather than direct premeditation, and characterised it as an unplanned outcome of a failed robbery.

3. Legal Issues

The appeal raised two central legal questions.

The first was whether the trial court committed an irregularity or misdirection by declining to accept mitigating factual material presented from the bar, and by insisting that mitigating facts be presented as evidence under oath in terms of s 274(1) of the Criminal Procedure Act 51 of 1977. This issue concerned the application of legal rules of criminal procedure (the nature and admissibility/weight of mitigation material at sentencing) to the conduct of the sentencing proceedings as reflected by the record.

The second was whether the effective sentence of 41 years and 6 months’ imprisonment was liable to appellate interference on the basis that it was shockingly inappropriate, including whether the trial court failed to consider the cumulative effect of multiple sentences and whether concurrency should have been ordered more extensively. This issue involved the application of sentencing principles and the appellate standard for interference with sentence, including whether interference was justified on the basis of misdirection or on the basis of marked disparity between the sentence imposed and the sentence the appellate court would have imposed.

4. Court’s Reasoning

Statements from the bar and s 274 of the Criminal Procedure Act

The Supreme Court of Appeal analysed s 274 by distinguishing its two components.

Under s 274(1), the court held that the default position is that a sentencing court may receive “evidence” to inform itself of the proper sentence, and that evidence under oath is preferable because it can be tested by cross-examination. The Court accepted, however, that it is common practice for counsel to place mitigating facts before court from the bar. The Court emphasised that such statements can be accepted, but their weight depends on whether the State and/or the court accepts them. Where such factual assertions are not accepted, fairness requires that the accused or legal representative be informed so that the accused can decide whether to lead evidence.

Applying those principles, the Court considered the trial judge’s approach. Although the trial judge’s remarks were described as potentially “brusque”, the Court concluded that the trial court acted within its entitlement to require mitigating facts to be placed before it as evidence and to refuse to treat counsel’s unsworn statements as evidence. The Court placed weight on the fact that the trial court had informed counsel in advance and allowed consultation with the appellant, who then chose not to testify in mitigation.

The Court further reasoned that the trial court acted proactively and fairly by seeking potential mitigating factors in the record and exhibits. It also considered it significant that the appellant did not contend that counsel would have presented different mitigating information from that which the trial court was able to glean from the exhibits. On this basis, the Court rejected the contention that the sentencing proceedings were vitiated by an irregularity under s 274(1).

Under s 274(2), the Court drew a distinction between presenting facts from the bar and making submissions/argument in mitigation. It held that the record did not support the complaint that counsel was prevented from addressing the court in mitigation; instead, the trial judge declined to accept mitigating facts that were not given as evidence. The Court therefore found no irregularity under the second leg of s 274.

Appellate interference with sentence: misdirection and disparity

The Court restated the established appellate approach that sentencing lies pre-eminently within the discretion of the trial court, and that an appellate court may interfere only on limited grounds.

It identified two bases for interference.

First, the misdirection basis: the appellate court may interfere where a material misdirection vitiates the trial court’s exercise of discretion, of the kind described in S v Pillay 1977 (4) SA 531 (A), namely a misdirection showing that discretion was not properly or reasonably exercised.

Second, the disparity basis: even without misdirection, interference may occur if there is a marked disparity between the sentence imposed and the one the appellate court would have imposed, to the extent that the sentence is “shocking”, “startling” or “disturbingly inappropriate” as described in S v Sadler [2000] 2 All SA 121 (A); 2000 (1) SACR 331 (SCA).

The Court emphasised that these bases are conceptually distinct and that an appellate court should identify the basis on which it interferes.

Assessment of the trial court’s sentencing approach

The Court found that the trial court considered the conventional sentencing triad and objectives: the gravity of the offence, the purposes of punishment (including deterrence and retribution), the appellant’s personal circumstances, and the interests of society. The Court referred to authority indicating that the weight accorded to any factor is within the trial court’s discretion and that an emphasis on retribution and deterrence in serious violent crime, including murder, is not in itself a misdirection.

The Court regarded the trial court’s finding of substantial and compelling circumstances to deviate from life imprisonment as indicative of a careful balancing process, and it declined to find that the trial court over-emphasised seriousness at the expense of personal circumstances in a manner amounting to a vitiating misdirection. It therefore held that interference was not justified on the misdirection basis.

Cumulative effect, concurrency, and “Methuselah” determinate sentences

Although it found no general misdirection, the Court held that the trial court erred in failing to consider the cumulative effect of the sentences imposed across the multiple counts. It treated this failure as the central error justifying interference.

The Court restated that it is a salutary practice for courts to consider whether multiple sentences produce an unjustifiably long effective sentence and that concurrency may be used to avoid an unduly harsh aggregate outcome. It referred to the principle that concurrency is particularly called for where offences are “inextricably linked” in locality, time, protagonists and common intent. On the facts, the Court concluded that the offences were linked in this manner.

The Court further cautioned against the imposition of excessive determinate sentences (sometimes described as “Methuselah sentences”), particularly where such sentences effectively operate as more onerous than life imprisonment. It noted that if the trial court believed the gravity warranted the harshest punishment, life imprisonment was the prescribed benchmark, and that an effective term of 41 years and 6 months was particularly inappropriate for a 28-year-old first offender with indicators of rehabilitative potential.

In evaluating proportionality, the Court considered the contextual mitigatory factors appearing from the record: the murder was an unplanned consequence of a failed robbery; it was committed with dolus eventualis rather than direct premeditation; the appellant spent 17 months in custody awaiting trial; and he surrendered to police after the offence (which the Court treated as a significant mitigating factor, though not necessarily proof of remorse).

The Court concluded that the effective sentence, in its severity, risked destroying rehabilitative prospects and was not aligned with the requirement that aggregate sentencing should not be unduly severe. It held that the disparity between the effective sentence imposed and the sentence the Court would impose was so marked that the original effective sentence was “shocking” and “disturbingly inappropriate”. It followed that interference was justified, and the sentence had to be replaced.

5. Outcome and Relief

The Supreme Court of Appeal condoned the late filing of the appellant’s heads of argument and reinstated the appeal.

The appeal against sentence was upheld. The order of the full court was set aside and replaced with an order setting aside the sentences imposed by the trial court and substituting them with the following sentences: 18 years’ imprisonment (count 1, murder), 10 years’ imprisonment (count 2, attempted robbery with aggravating circumstances), 5 years’ imprisonment (count 3, unlawful possession of a firearm), and 6 months’ imprisonment (count 4, unlawful possession of ammunition).

The Court ordered that the sentences on counts 3 and 4 run concurrently with the sentence on count 1. The resulting effective sentence was 28 years’ imprisonment.

In terms of s 282 of the Criminal Procedure Act 51 of 1977, the sentence was antedated to 6 May 2013.

No separate costs order was made in the criminal appeal.

Cases Cited

R v Shuba 1958 (3) SA (C) 844.

S v H 1977 (2) SA 954 (A).

S v Jabavu 1969 (2) SA 466 (A).

S v Olivier [2010] ZASCA 48; 2010 (2) SACR 178 (SCA); [2010] 4 All SA 503 (SCA).

R v Hartley 1966 (4) SA 219 (RA).

S v Dzukuda and Others; S v Tshilo [2000] ZACC 16; 2000 (4) SA 1078 (CC); 2000 (11) BCLR 1252 (CC); 2000 (2) SACR 443 (CC).

S v Klassen v S [2017] ZASCA 58; 2017 (2) SACR 119 (SCA).

S v Khumalo 2013 (1) SACR 96 (KZP).

S v Pillay 1977 (4) SA 531 (A).

S v Sadler [2000] 2 All SA 121 (A); 2000 (1) SACR 331 (SCA).

S v Rabie 1975 (4) SA 855 (A).

S v Sterrenberg 1980 (1) PH H 71 (A).

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA).

S v Nkwanyana & Others 1990 (4) SA 735 (A).

S v Nkambule 1993 (1) SACR 136 (A).

S v Swart 2004 (2) SACR 370 (SCA).

S v Govender and Others 2004 (2) SACR 381 (SCA).

S v Whitehead 1970 (4) SA 424 (A).

S v Mokela [2011] ZASCA 166; 2012 (1) SACR 431 (SCA).

S v Mate 2000 (1) SACR 552 (T).

S v S 1987 (2) SA 307 (A).

S v Bull and Another; S v Chavulla and Others 2001 (2) SACR 681 (SCA).

S v Nkosi and Others 2003 (1) SACR 91 (SCA).

S v Moswathupa [2011] ZASCA 172; 2012 (1) SACR 259 (SCA).

S v Khumalo and Others [1984] ZASCA 30; [1984] 2 All SA 232 (A); 1984 (3) SA 327 (A).

S v Motlhakane; S v Sehlake; S v Van Heerden van Oudshoorn 2011 (1) SACR 510 (GNP).

Legislation Cited

Superior Courts Act 10 of 2013, s 19(a).

Criminal Procedure Act 51 of 1977, ss 274 and 282.

Criminal Law Amendment Act 105 of 1997, ss 51(1) and 51(3).

Constitution of the Republic of South Africa, 1996, s 35(3)(h).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the trial court did not commit an irregularity or misdirection by declining to accept mitigating facts presented from the bar, because s 274(1) contemplates the receipt of evidence on sentence, the trial court informed counsel of its approach in advance, allowed consultation, and the appellant elected not to testify. It further held that s 274(2) permits address on sentence and that counsel was not prevented from addressing the court; the trial court merely declined to treat unsworn statements as evidential proof.

The Court held that there was no vitiating misdirection in the trial court’s weighting of sentencing factors, including any emphasis on retribution and deterrence, particularly in serious violent crime. However, it held that the trial court erred by failing to consider the cumulative effect of the sentences imposed for multiple offences and by failing to structure concurrency appropriately.

The Court held that the effective term of 41 years and 6 months’ imprisonment was, in the circumstances, shockingly inappropriate and warranted appellate interference on the basis of marked disparity. The sentence was replaced with an effective sentence of 28 years’ imprisonment, with concurrency ordered for counts 3 and 4 with count 1, and the sentence antedated to 6 May 2013 under s 282.

LEGAL PRINCIPLES

A sentencing court is permitted under s 274(1) of the Criminal Procedure Act 51 of 1977 to receive evidence it thinks fit to inform itself as to proper sentence, and evidence under oath is the default and preferable form because it is capable of being tested by cross-examination. While courts frequently receive factual mitigation from counsel’s address, such factual assertions are not automatically binding; their weight depends on whether they are accepted by the State and/or the court, and fairness requires that an accused be alerted if such factual statements are not accepted so the accused can decide whether to lead evidence.

An accused cannot be compelled to testify in mitigation, consistent with the right to remain silent, but a court may indicate that evidence under oath carries more weight than submissions from the bar, and it may decline to treat counsel’s unsworn statements as proof of facts where it requires evidential substantiation.

Appellate interference with sentence is limited. A court of appeal may interfere if there is a material misdirection vitiating the sentencing discretion, as described in S v Pillay 1977 (4) SA 531 (A), or where there is a marked disparity between the sentence imposed and that which the appellate court would impose, rendering the sentence “shocking”, “startling” or “disturbingly inappropriate”, as described in S v Sadler [2000] 2 All SA 121 (A); 2000 (1) SACR 331 (SCA).

Where an accused is convicted of multiple offences, a sentencing court should consider the cumulative effect of the individual sentences. Concurrency should be considered to prevent an unduly harsh aggregate sentence, particularly where offences are closely connected in time, place, participants, and common intent. Excessive determinate sentences producing an aggregate effect akin to, or harsher than, life imprisonment may be inappropriate where they effectively extinguish realistic prospects of rehabilitation and return to society.

Cele v S (681/2024) [2025] ZASCA 199 (19 December 2025)