Cwele accomplice takes case to ConCourt

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The Constitutional Court ruled that the Supreme Court of Appeal (SCA) had no legal right to increase Frank Nabolisa's prison sentence from 12 to 20 years.

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 Johannesburg - The Constitutional Court will hear an application on Thursday for leave to appeal against a ruling which increased convicted drug dealer Frank Nabolisa's sentence.

The application for leave to appeal comes after Nabolisa and his co-accused Sheryl Cwele - former wife of State Security Minister Siyabonga Cwele - were found guilty in May 2011 of drug dealing by the Pietermaritzburg High Court and sentenced to 12 years' imprisonment each.

Both appealed their sentences at the Supreme Court of Appeal (SCA) in Bloemfontein. Cwele appealed to the SCA against her conviction only, while Nabolisa appealed both his conviction and sentence.

In October 2012 both of their sentences were increased to 20 years.

The dispute in the Constitutional Court concerns whether the State was required to lodge a cross-appeal seeking an increase in sentence following Nabolisa's appeal to the SCA against his conviction and sentence, or whether notice given by the State in its written submissions, indicating that it would seek an increase in sentence, was sufficient.

The State did not cross-appeal the original 12-year sentence. However, in the heads of argument to the SCA the State contended for an increase in sentence to 15 years' imprisonment.

The State subsequently supplemented its heads of argument, arguing for an increase of sentence to 20 years on the strength of recent case law.

The SCA confirmed Nabolisa's conviction and increased his sentence to 20 years.

Nabolisa argues the State should have sought leave to appeal against the sentence imposed by the High Court if it wanted to increase the original sentence.

In opposition, the State argues it twice gave notice of its intention to seek an increase of the sentence on appeal and there was no peremptory form the notice should take.

The requirement of notice, the State argues, is a matter of substance, not form. - Sapa