When the death penalty was declared unconstitutional in South Africa,
the government enacted the Criminal Law Amendment Act in 1997 which,
amongst other things, stipulated that a person convicted of some of the
scheduled offences was to be sentenced to life imprisonment unless there
were substantial and compelling circumstances. Many courts interpreted substantial
and compelling circumstances in many different, and at times confusing,
ways. The Supreme Court of Appeal clarified the meaning of substantial
and compelling circumstance in the well-known Malgas case in which it
held, inter alia, that courts should not lightly depart from imposing severe
sentences, since the legislature had singled out the scheduled offences to be
punished severely because they are serious offences. One of the criteria the
Court set was that courts should not rely on ‘speculative hypotheses favourable
to the offender’ to avoid imposing life sentences. However, recently,
in the Nkomo case, the Court held that the prospect of rehabilitation of the
offender is a substantial and compelling circumstance to justify the imposition
of a lesser sentence. This article analyses rehabilitation as an objective
of punishment and highlights the likely challenges associated with the
approach the Court seems to be adopting.