Nabolisa’s term cut to 12 years

2013-06-13 00:00

YESTERDAY’S decision by the Constitutional Court to reduce the sentence of drug trafficker, Frank Nabolisa from 20 years to 12 years imprisonment, opens the door for a similar reduction in the sentence of his former “partner in crime” Sheryl Cwele.

Nabolisa and Cwele — the former wife of State Security Minister, Siyabonga Cwele — were found guilty in the Pietermaritzburg high court in May 2011 of dealing in cocaine with a street value of R2 million and were originally jailed for 12 years each by Judge Pete Koen.

The convictions were based on findings that they had procured Tessa Beetge and Charmaine Moss of the South Coast to smuggle drugs across international borders.

Beetge, who was arrested at Sao Paulo airport in possession of cocaine, is still in prison.

Nabolisa and Cwele’s jail sentences were increased to 20 years imprisonment each by the Supreme Court of Appeals (SCA) which held that the effects of the accuseds’ deeds on the community far outweighed their personal circumstances, justifying a long term of imprisonment.

A majority of judges of the Constitutional Court yesterday however upheld Nabolisa’s appeal and found that the procedure that was followed in the SCA when increasing his sentence, was a violation of his constitutional right to a fair hearing.

This was because the State had failed to formally apply for leave to appeal the sentences, but merely submitted in its heads of argument that the sentences should be higher.

Initially the State had argued that the trial court should have imposed the minimum sentence of 15 years imprisonment on the accused, and later that a sentence in the region of 20 years would be more appropriate, based on a similar case in which the SCA had upheld a 20 year jail term.

The Constitutional Court ruled that in these circumstances the SCA did not have jurisdiction to consider the issue of an increase in sentence on Nabolisa, and that the 20-year sentence should therefore be set aside and the original sentence of 12 years imprisonment reinstated.

Although Cwele did not lodge an application for leave to appeal to the Constitutional Court, the Judges said in her case the State had not been entitled to argue for an increase in sentence because she had not appealed against her sentence in the first place.

“Consequently it was not open for the Supreme Court of Appeal to increase her sentence under these circumstances,” the Constitutional Court stated.

This finding opens the door for Cwele to also win a reduction of her sentence to 12 years imprisonment, if she now lodges an appeal.

Three judges of the Constitutional Court did not agree with the majority finding however.

These judges said they would have dismissed Nabolisa’s appeal.

The dissenting judges expressed the view that an informal practice exists whereby the State could motivate for an increase in sentence without a cross appeal being lodged in instances where an accused instigates an appeal.

They held that no irregularity therefore occurred which rendered Nabolisa’s trial unfair.

They also said that there was no failure of justice and they believed Nabolisa had received adequate notice that the State was seeking to increase his sentence.

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