Nabolisa appeals increased sentence

2013-03-07 13:38
Frank Nabolisa (File, Sapa)

Frank Nabolisa (File, Sapa)

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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.

Read more on:    sheryl cwele  |  frank nabolisa  |  narcotics

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