ConCourt upholds Nabolisa's appeal, reinstates 12-year sentence

A convicted drug dealer’s appeal against an increase in his prison sentence was upheld by the Constitutional Court on Wednesday.

“The sentence imposed on Mr [Frank] Nabolisa by the Supreme Court of Appeal (SCA) is set aside,” the court ordered.

It ruled that Nabolisa’s high court sentence of 12-years imprisonment be reinstated, and a 20-year sentence imposed by the SCA be cancelled.

Nabolisa had challenged the SCA’s increase in the sentence when he appealed against his conviction and sentence.

He and his co-accused Sheryl Cwele — the former wife of State Security Minister Siyabonga Cwele — received the same sentence in the Pietermaritzburg High Court on May 5, 2011, after their trial.

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 March, the Constitutional Court heard lengthy and detailed argument about whether the State was obliged to apply for leave to appeal, and whether the SCA had acted fairly.

Other issues under consideration were whether the SCA had the power to increase the sentence, and whether Nabolisa’s rights were infringed.

In his submissions, Nabolisa said the State was required to have cross-appealed against the sentence if it wanted his sentence increased on appeal, and it failed to do so.

During the submissions, State advocate Ian Cooke, SC, said when an accused appealed, the State could allow the SCA to use its “statutorily defined powers” to increase a sentence.

Gerrit Muller, SC, for Nabolisa, contended that his client’s right to a fair trial had been infringed.

He submitted that his client had been prejudiced because the court initiated the sentence at the State’s request.

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

He argued that there was no peremptory form the notice should take.