S v Nabolisa

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J
• Judgment Date: 12 June 2013
• Citation: 2013 (2) SACR 221 (CC)
• Hearing Date: 07 March 2013
• Docket Number: CCT 105/12 [2013] ZACC 17
• Counsel: GC Muller SC for the applicant. IP Cooke for the state.

Skweyiya J (Moseneke DCJ and Van der Westhuizen J concurring) (minority judgment):

Introduction

[1] This matter concerns an application for leave to appeal against a H decision of the Supreme Court of Appeal in which the applicant, Mr Frank Nabolisa, had his conviction upheld and his sentence increased from 12 to 20 years' imprisonment. [1] Before this court for determination is the question whether the state is required to cross-appeal in circumstances where the accused initiates an appeal, or I whether notice in the state's heads of argument that it seeks an increase suffices.

Skweyiya J (Moseneke DCJ and Van der Westhuizen J concurring) (minority judgment)

Factual background and prior proceedings A

[2] At some stage prior to or during 2008, Ms Sheryl Cwele and Mr Nabolisa entered into an unlawful criminal enterprise to import cocaine into South Africa. They sought to do so by recruiting two 'couriers', Ms Tessa Beetge and Ms Charmaine Moss, to travel overseas B and to bring cocaine back into South Africa. Ms Moss declined and withdrew from the relationship. Ms Beetge was flown to Columbia and, on her way home to South Africa, was arrested at an airport in Sao Paulo, Brazil, with just over 10 kg of cocaine in her possession. Ms Beetge had worked closely with Mr Nabolisa in this enterprise.

C [3] Mr Nabolisa was charged, along with Ms Cwele, with contravening s 5(b) of the Drugs and Drug Trafficking Act [2] (Drugs Act) for dealing in a dangerous dependence-producing substance. In the alternative, they were charged with contravening s 18(2)(a) of the Riotous Assemblies Act [3] for conspiracy to deal in drugs. [4] Mr Nabolisa pleaded not guilty.

D [4] The indictment made reference to the provisions of s 51(2) of the Criminal Law Amendment Act [5] and part II of sch 2 to that Act (minimum sentencing legislation). Those provisions, read together, provide that for a conviction under s 5(b) of the Drugs Act, a minimum sentence of 15 years' imprisonment must be imposed on a first-time offender. [6] The maximum sentence for contravention of s 5(b) of the E Drugs Act is set by s 17(e) of the Drugs Act, providing for imprisonment 'for a period not exceeding 25 years'.

[5] Mr Nabolisa and Ms Cwele were convicted on 5 May 2011 in the KwaZulu-Natal High Court, Pietermaritzburg (high court), of dealing in drugs under s 5(b) of the Drugs Act. In sentencing, the high court F recognised that the starting point was the 15 years prescribed by the minimum sentencing legislation but it found that there were compelling circumstances warranting a three-year reduction in the prescribed minimum sentence.

[6] The high court granted Mr Nabolisa leave to appeal to the Supreme G Court of Appeal in respect of both his conviction and sentence. Ms Cwele appealed in respect of her conviction only. The state did not apply for leave to cross-appeal against the sentence. However, it indicated twice, in its heads of argument and subsequently in its supplementary heads of argument, that the sentences should be increased.

Skweyiya J (Moseneke DCJ and Van der Westhuizen J concurring) (minority judgment)

[7] The state, in its heads of argument filed on 26 March 2012, stated A that 'it [would] be submitted that the sentence should have been a term of 15 years' imprisonment each', arguing that there was insufficient basis for deviating from the prescribed minimum. The state also submitted supplementary heads of argument, on 12 June 2012, where it argued that 'a sentence in the region of 20 years' imprisonment should rather have B been imposed'. This followed the state becoming aware of the decision in S v Keyser, [7] which had been delivered on 25 May 2012, in which a sentence of 20 years was upheld. For the sake of convenience the presentation of these arguments will be referred to as the first and second notices [8] respectively.

[8] The Supreme Court of Appeal heard the matter on 16 August 2012, C almost five months after the first notice had been given and over two months after the second notice had been given. During proceedings in the Supreme Court of Appeal, counsel for Mr Nabolisa presented argument on the topic of conviction and sentence. It was argued by D Mr Nabolisa's counsel that the sentence imposed by the high court was just and that no misdirection was committed by the high court.

[9] On 1 October 2012 the Supreme Court of Appeal dismissed the appeals against the conviction and set aside and replaced Mr Nabolisa and Ms Cwele's sentences. The court held that the provisions of the E minimum sentencing legislation applied. It relied on the authority of Keyser and considered various factors including the seriousness of the crime and the fact that in most cases the 'courier' is caught while the handler remains safe in the background. The court concluded that a sentence of 20 years would have been the appropriate sentence for the F high court to impose. Given that the disparity between that sentence and the sentence of 12 years' imprisonment imposed by the high court was so marked, it held that the high court's sentence could properly be described as 'disturbingly inappropriate'. The Supreme Court of Appeal set aside the high court sentence and replaced it with a sentence of 20 years' imprisonment in respect of both Mr Nabolisa and Ms Cwele, G antedated to 6 May 2011 in respect of Mr Nabolisa.

[10] Mr Nabolisa applied for leave to appeal to this court against the conviction confirmed by the Supreme Court of Appeal and the new sentence it imposed. On 19 November 2012 this court dismissed his H application for leave to appeal against conviction. In this court the matter is confined to the application for leave to appeal against sentence. It is important to note that Ms Cwele is not a party to the proceedings before this court. She has not appealed against the Supreme Court of Appeal's judgment and for that reason the propriety of the procedure in the Supreme Court of Appeal with respect to her is not of relevance in I reaching a decision in this matter.

Skweyiya J (Moseneke DCJ and Van der Westhuizen J concurring) (minority judgment)

In this court A

Applicant's submissions

[11] Mr Nabolisa contends that the state was required to have cross-appealed B against sentence if it sought to have his sentence increased on appeal, and it failed to do so. He submits that properly interpreted, s 316B of the Criminal Procedure Act [9] creates a peremptory statutory requirement of cross-appeal by the state. Section 316B provides:

'Appeal by attorney-general against sentence of superior court

(1) Subject to subsection (2), the attorney-general may appeal to the C Appellate Division against a sentence imposed upon an accused in a criminal case in a superior court.

(2) The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals D in terms of subsection (1) of this section.

(3) Upon an appeal in terms of subsection (1) or an application referred to in subsection (2), brought by the attorney-general, the court may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of E that court.'

[12] Mr Nabolisa describes the practice that existed prior to 1990 (before the introduction of s 316B of the Criminal Procedure Act) as one where the state 'was able merely to request a Court of Appeal in F its Heads of Argument or by notice to increase the sentence' where the convicted and sentenced person has appealed. However, he argues that the introduction of s 316B of the Criminal Procedure Act abolished that practice. To allow this 'old practice' to continue would render s 316B superfluous and would be absurd because it would allow the state to request an increase in sentence in instances where leave to appeal may G have been refused.

[13] Mr Nabolisa submits that his sentence was not increased mero motu by the Supreme Court of Appeal, but in the light of the state's notice in its heads of argument. If, however, the Supreme Court of H Appeal had in fact increased his sentence mero motu, he argues, the court failed to comply with its duty to notify him that it was considering increasing his sentence as it was required to do following the decision of this court in Bogaards. [10]

[14] It is submitted that by increasing his sentence in the circumstances, I the Supreme Court of Appeal infringed on Mr Nabolisa's constitutional right to a fair appeal process under s 35(3)(o) of the Constitution. In so

Skweyiya J (Moseneke DCJ and Van der Westhuizen J concurring) (minority judgment)

doing, it occasioned a miscarriage of justice. He also alleged infringements A of his rights under ss 34 and 9 of the Constitution but he did not pursue these arguments.

Respondent's submissions

[15] The state offers a contrary interpretation of s 316B. It argues that B s 316B merely filled a lacuna that had existed in the law. Prior to the enactment of s 316B, the state was unable to appeal to rectify a sentence that was overly lenient when the accused had elected not to appeal. Section 316B, it is argued, filled this lacuna by adding to the law a mechanism for the state to appeal at its own initiative. It was not C intended to remove the 'old practice'. There was, as a result, no need for the state to seek leave to cross-appeal when Mr Nabolisa appealed to the Supreme Court of Appeal. The determination of a possible new sentence was already a live issue before the court.

[16] The state submits that it twice gave notice of its intention to seek an D increase in sentence in its first and supplementary heads of argument. Where it has given such notice...