fla
CONCOURT-N/L-NABOLISA by Miranda Andrew
JOHANNESBURG March 7 Sapa
JUDGMENT RESERVED IN NABOLISA APPEAL
The Constitutional Court reserved judgment on Thursday in a case where a convicted drug dealer's sentence was increased without a formal application by the State for leave to appeal.
The court heard lengthy and detailed argument on whether the State was obliged to apply for leave to appeal, and whether the Supreme Court of Appeal (SCA) had acted fairly.
Other issues under consideration were whether the SCA had the power to increase the sentence, and whether drug dealer Frank Nabolisa's rights were infringed.
State advocate Ian Cooke SC argued that when an accused appealed, the State could allow the SCA to use its "statutorily defined powers" to increase a sentence.
It was a rule of practice, that before increasing the sentence, proper notice be given to the appellant.
"Proper notice was twice given in this respect," said Cooke.
"The appellant 1/8Nabolisa 3/8 was warned months before."
He said the State acted responsibly by giving two notices and saved the court an embarrassment.
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 disregarding the provisions of Section 316B and by entertaining the request... to increase the sentence the court infringed the applicant's right to a fair trial.... The SCA therefore caused a miscarriage of justice," he said.
Section 316B 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.
"Gate-crashing should not be allowed," said Muller.
"You have to go through the gate of Section 316 to get to increase the sentence."
Muller said before a sentence could be increased, such an application needed to be granted, and that a notice in heads of argument was not sufficient.
He submitted that his client had been prejudiced because the court initiated the sentence on the State's request.
However, Cooke said it made no difference "as long as he 1/8Nabolisa 3/8 knew... a notice to increase the sentence was being considered".
He argued 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
/ma/hdw/clh/gq 03/07/13 13-48