091210 Frank Nabolisa at the court hearing of Sheryl Cwele in Pietermaritzburg

Johannesburg - When an accused appeals a case, the Supreme Court of Appeal (SCA) can increase a sentence, the State argued in the Constitutional Court on Thursday.

“Once the accused appeals, the matter is on the table.... It is a matter of substance rather than form,” State advocate Ian Cooke said.

“So, the State is taking the responsibility on itself to say it (the sentence) needs to be discussed. It saves the court an embarrassment.”

Convicted drug trafficker Frank 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 Pietermaritzburg 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 increasing the sentence without an application for leave to appeal.

“Gate-crashing should not be allowed,” Muller said.

“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.

In his heads of argument, Muller submitted that the SCA caused a miscarriage of justice which prejudiced Nabolisa when it did not seek leave to appeal the sentence.

However, Cooke said it made no difference “as long as he (Nabolisa) knew... a notice to increase the sentence was being considered”.

He argued the State twice gave notice of its intention to seek an increase of the sentence on appeal months in advance, and 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