Nabolisa appeals increased sentence
2013-03-07 13:38
Johannesburg - The Supreme Court of Appeal (SCA) infringed
on a convicted drug dealer's right to a fair trial by increasing his sentence
without an application for leave to appeal, the Constitutional Court heard on
Thursday.
"Gate-crashing should not be allowed," said Gerrit
Muller SC, for Frank Nabolisa, who was found guilty in May 2011 of drug
dealing.
"You have to go through the gate of Section 316 to get
to increase of the sentence."
Section 316 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.
Muller said before one could increase a sentence, such an
application had to be granted, and that a notice in heads of argument was not
sufficient.
Sentence increased
Nabolisa is applying for leave to appeal against a ruling by
the SCA, which increased his 12-year prison term by eight years.
He and co-accused Sheryl Cwele - the former wife of State
Security Minister Siyabonga Cwele - were found guilty under the Drug and Drug
Trafficking Act in 2011 and sentenced to 12 years imprisonment each by the KwaZulu-Natal
High Court.
Nabolisa appealed against his conviction and sentence to the
SCA. 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 his heads of argument, Muller submitted that the SCA
caused a miscarriage of justice by doing so.
He contended that the State should have sought leave to
appeal the sentence imposed by the court.
State advocate Ian Cooke SC, said it made no difference
"as long as he [Nabolisa] knew... a notice to increase the sentence was
being considered".
He argued that the State twice gave notice of its intention
to seek an increase of the sentence on appeal, and that there was no peremptory
form the notice should take. He submitted that the requirement of notice was a
matter of substance, not form.
- SAPA
