Judgment expected in Nabolisa appeal

2013-06-11 20:47
Frank Nabolisa (File, Sapa)

Frank Nabolisa (File, Sapa)

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

Johannesburg - The Constitutional Court will rule on Wednesday on a drug dealer's appeal against an increase in his prison sentence.

The court reserved judgment on Frank Nabolisa's appeal, which was heard in March.

He had challenged an eight-year increase in the 12-year jail term imposed on him by the Supreme Court of Appeal (SCA) when he appealed against his conviction and sentence.

He and his co-accused Sheryl Cwele, the former wife of State Security Minister Siyabonga Cwele, received the same sentence during their trial in the Pietermaritzburg High Court in 2011.

The State did not cross-appeal, but asked in its heads of argument that the sentence be increased to 15 years. It later argued for an increase to 20 years, on the strength of recent case law.

In March, the Constitutional Court heard lengthy and detailed argument about whether the State was obliged to apply for leave to appeal, and whether the SCA had acted fairly.

Other issues under consideration were whether the SCA had the power to increase the sentence, and whether Nabolisa's rights were infringed.

State advocate Ian Cooke SC, said when an accused appealed, the State could allow the SCA to use its "statutorily defined powers" to increase a sentence.

It was a rule of practice that, before increasing the sentence, proper notice be given to the appellant.

"Proper notice was twice given in this respect," said Cooke.

"The appellant [Nabolisa] was warned months before."

He said the State had acted responsibly by giving two notices and had saved the court an embarrassment.

Gerrit Muller SC, for Nabolisa, contended that his client's right to a fair trial had been infringed.

"By disregarding the provisions of Section 316B and by entertaining the request... to increase the sentence the court infringed the applicant's right to a fair trial.... The SCA therefore caused a miscarriage of justice," he said.

Section 316B of the Criminal Procedure Act gives the director of public prosecutions the right to apply for leave to appeal against a sentence imposed by a superior court.

"Gate-crashing should not be allowed," said Muller.

"You have to go through the gate of Section 316 to get to increase the sentence."

Muller said before a sentence could be increased, such an application needed to be granted. A notice in heads of argument was not sufficient.

He submitted that his client had been prejudiced because the court initiated the sentence at the State's request.

However, Cooke said it made no difference "as long as he [Nabolisa] knew... a notice to increase the sentence was being considered".

He argued that there was no peremptory form the notice should take.

"The difficulty arose when the accused was given a very lenient sentence... and the State was left without a remedy," said Cooke.

"The appellant was warned months before."

- SAPA
Read more on:    frank nabolisa  |  johannesburg
NEXT ON NEWS24X
SHARE:

Read News24’s Comments Policy

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
5 comments
Add your comment
Comment 0 characters remaining
 

Inside News24

 
/News
 

Sexiest Instagrams of 2014

Check out some of the sexiest celebrity Instagrams of 2014!

 
 

I love summer.24

Joburg hot spots for cocktails, craft beer, tapas and wine!
Summer Survey!
Great ideas for the best summer sandwiches!
Christmas lingerie to make this festive season the best one ever!

Jobs in Cape Town [change area]

Property [change area]

Travel - Look, Book, Go!

Kalahari.com - shop online today

Grand Theft Auto 5

Now available on PS4, Xbox One and PC from R649. Buy now!

Festive gifts!

Check out our awesome range of festive gifts to make everyone’s wishes come true. Shop now!

Save on Samsung

Cameras, mobile phones, TVs, Tablets and more. While stocks last. Shop now!

Save up to R2200 on electronics! – As seen in the catalogue

Wishing for tech gadgets this festive? Save up to R2100 on hot tech products at kalahari.com. While stocks last. Shop now!

30% off the bestselling books

Save big on the most captivating reads of 2014. While stocks last. Shop now!

OLX Free Classifieds [change area]

Samsung Galaxy s4

Mobile, Cell Phones in South Africa, Western Cape, Cape Town. Date October 24

Best bargain in big bay

Real Estate, Houses - Apartments for Sale in South Africa, Western Cape, Cape Town. Date October 25

VW Golf 6, 1.6 Trendline (Excellent condition)

Vehicles, Cars in South Africa, Western Cape, Cape Town. Date October 25

Horoscopes
Aquarius
Aquarius

The energy today is serious, materialistic and hardworking. You may find you get a new outlook on things and you may want to spend...read more

There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.








Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.