Judgment reserved in Nabolisa appeal

2013-03-07 19:20
Frank Nabolisa (File, Sapa)

Frank Nabolisa (File, Sapa)

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

kalahari.com

Johannesburg - The Constitutional Court reserved judgment on Thursday in a case where a convicted drug dealer's sentence was increased without a formal application by the State for leave to appeal.

The court heard lengthy and detailed argument on whether the State was obliged to apply for leave to appeal, and whether the Supreme Court of Appeal (SCA) had acted fairly.

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

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

Notice given twice


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 acted responsibly by giving two notices and saved the court an embarrassment.

Nabolisa has approached the court to challenge an eight-year increase in his 12-year jail term, which was imposed by the SCA when he appealed against his conviction and sentence.

He and co-accused Sheryl Cwele - the former wife of State Security Minister Siyabonga Cwele - received the same sentence during their trial in the KwaZulu-Natal 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.

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

‘Gate-crashing should not be allowed’


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, and that a notice in heads of argument was not sufficient.

He submitted that his client had been prejudiced because the court initiated the sentence on 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  |  pietermaritzburg  |  narcotics
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
3 comments
Add your comment
Comment 0 characters remaining
 

Inside News24

 
/News
 

New GIF keyboard on iOS for added fun!

Soon sending an LOL! or facepalm will be so much more fun!

 
 

For chic geeks...

Puppy goes crazy over iPad game
Printable solar panels will bring exciting new opportunities!
Now there’s a special lane for texting while walking
LOL! 7 brutally honest texts from parents

Jobs in Cape Town [change area]

Property [change area]

Travel - Look, Book, Go!

Magical Massinga

Spend 5 nights at the gorgeous Massinga Beach Lodge in Mozambique and only pay for 4 from R13 220 per person sharing. Includes return flights, accommodation, transfers and romantic turndown. Book now!

Kalahari.com - shop online today

Pre-order your iPhone 6 at kalahari.com

Hurry and pre-order your own iPhone 6 now at SA’s favourite online store!

Bargain box – 60% off

Reduced prices, very limited stock. While stocks last. Hurry and shop now!

Mind blow low prices on electronics

Get either the Prestigio multiphone or Proline tablet 7” tablet for only R699. Offers valid while stocks last. Shop now!

30% off Barbie toys

Save 30% on all Barbie toys and accessories. Offer valid while stocks last. Shop now!

Baby extravanganza month at kalahari.com

Celebrate baby month with a wide range of awesome baby products. Offers valid 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

As the Moon moves out of restless Gemini into sensitive Cancer today you are able to relax your active mind and be more receptive...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.