S v Nabolisa

• Jurisdiction: South Africa
• Citation: 2013 (2) SACR 221 (CC)

S v Nabolisa
2013 (2) SACR 221 (CC)

2013 (2) SACR p221

Citation	2013 (2) SACR 221 (CC)
Case No	CCT 105/12; [2013] ZACC 17
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
Heard	March 7, 2013
Judgment	June 12, 2013
Counsel	GC Muller SC for the applicant.; IP Cooke for the state.

Flynote : Sleutelwoorde

Sentence — Increase of on appeal — Lack of cross-appeal by state — Section 316B creating peremptory statutory requirement of cross-appeal — In absence of cross-appeal against sentence by state, Supreme Court of Appeal lacking jurisdiction to increase sentence on appeal. C

Headnote : Kopnota

The applicant had been convicted in a high court of dealing in drugs under s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. He was sentenced to 12 years' imprisonment. The high court granted him leave to appeal to the Supreme Court of Appeal in respect of both his conviction and sentence. The state did not apply for leave to cross-appeal against the sentence; D however, it indicated in its heads of argument, and subsequently in its supplementary heads of argument, that the sentence should be increased. When the matter came before the Supreme Court of Appeal the court held that a sentence of 20 years' imprisonment would have been the appropriate sentence for the high court to impose, and, given the disparity between that sentence and the sentence that had been imposed, it regarded the sentence E imposed as 'disturbingly inappropriate', and replaced it with a sentence of 20 years' imprisonment. He applied for leave to appeal to the Constitutional Court against both the conviction and sentence, but was granted leave only in respect of sentence. Counsel for the applicant contended that the state was required to have cross-appealed against the sentence if it sought to have his sentence increased on appeal and it had failed to do so. He contended that, properly interpreted, s 316B of the Criminal Procedure F Act 51 of 1977 created a peremptory statutory requirement of cross-appeal by the state.

The majority of the court held that the Criminal Procedure Act did not empower the Supreme Court of Appeal in the present case to adjudicate the increase of sentence in the absence of a cross-appeal by the state, and the state's right to appeal was sourced from that statute. No other law empowered it to G

2013 (2) SACR p222

A appeal in the manner it sought to in the present case, and, accordingly, the Supreme Court of Appeal lacked jurisdiction to increase the sentence imposed by the trial court. (Paragraph [82] at 245a–c.) Appeal upheld and the sentence imposed by the Supreme Court of Appeal set aside. The effect of this would be to reinstate the sentence imposed by the high court.

The minority judgment held that when probed by the bench to identify what B prejudice had been suffered by the state's 'failure' to cross-appeal, counsel for the applicant had relied squarely on the alleged procedural irregularity itself. What he had not argued was that he had been caught off guard, or that there had been arguments that he would have raised but had not. He had not claimed that he was 'ambushed', or in any way misunderstood the possibility that his sentence might be increased. It had been argued on C Mr Nabolisa's behalf that he should not be penalised for presenting argument on increase of sentence out of caution. This illustrated the weakness in Mr Nabolisa's argument. It was exactly because of his being notified of a possible increase that he had argued against it. It was a good illustration of the fact that he had been put on terms and that fairness had been achieved. Accordingly it was concluded that no miscarriage of justice D had been shown, even if an irregularity had been established. (Paragraphs [39] – [41] at 234b/c–e.)

Cases cited

Bill of Costs (Pty) Ltd and Another v The Registrar, Cape, NO and Another1979 (3) SA 925 (A): referred to E

Dhanabakium v Subramanian and Another1943 AD 160: referred to

Director of Public Prosecutions v Olivier2006 (1) SACR 380 (SCA) ([2006] 4 All SA 224; [2005] ZASCA 121): dictum in para [19] compared

Gordon NO v Standard Merchant Bank Ltd1983 (3) SA 68 (A): referred to

Kaplan v Incorporated Law Society, Transvaal1981 (2) SA 762 (T): referred to F

National Director of Public Prosecutions v Elran2013 (1) SACR 429 (CC) (2013 (4) BCLR 379; [2013] ZACC 2): referred to

R v Grundlingh1955 (2) SA 269 (A): dictum at 272D compared

R v Matsego and Others1956 (3) SA 411 (A): referred to

R v Rose1937 AD 467: referred to G

R v Swanepoel1945 AD 444: referred to

Rand Bank Bpk v Regering van die Republiek van Suid-Afrika en Andere1974 (4) SA 764 (T): referred to

S v Bogaards2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): applied

S v Combrink2012 (1) SACR 93 (SCA) ([2011] ZASCA 116): referred to H

S v Cwele and Another2013 (1) SACR 478 (SCA) ([2012] 4 All SA 497; [2012] ZASCA 155): referred to

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252; [2000] ZACC 16): referred to

S v Egglestone2009 (1) SACR 244 (SCA) ([2008] 4 All SA 207): compared

S v Jaipal2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): referred to I

S v Kellerman1997 (1) SACR 1 (A) ([1997] 1 All SA 127; [1996] ZASCA 139): criticised and not followed

S v Keyser2012 (2) SACR 437 (SCA) ([2012] ZASCA 70): referred to

S v Kgosimore 1999 (2) SACR 238 (SCA) ([1999] ZASCA 63): referred to

S v Khumbisa and Others1984 (2) SA 670 (N): referred to J

2013 (2) SACR p223

S v Legoa2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA A 122): referred to

S v Louw1990 (3) SA 116 (A): referred to

S v Mkhise; S v Mosia; S v Jones; S v Le Roux1988 (2) SA 868 (A): dictum at 871 – 872 applied

S v Mmboi and Another [2012] ZASCA 142: compared

S v Mokela2012 (1) SACR 431 (SCA) ([2011] ZASCA 166): referred to B

S v Moodie1961 (4) SA 752 (A): dictum at 759 applied

S v Naidoo1962 (4) SA 348 (A): dictum at 354 applied

S v Naidoo1987 (3) SA 834 (N): referred to

S v Ntuli1996 (1) SACR 94 (CC) (1996 (1) SA 1207; 1996 (1) BCLR 141; [1995] ZACC 14): referred to

S v Peter1989 (3) SA 649 (CkA): referred to C

S v Shaik and Others2008 (1) SACR 1 (CC) (2008 (2) SA 208; 2007 (12) BCLR 1360; [2007] ZACC 19): referred to

S v Tladi1989 (3) SA 444 (BG): referred to

S v Toubie [2012] 4 All SA 290 (SCA) ([2012] ZASCA 133): referred to

S v Zuma and Others1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401; [1995] ZACC 1): referred to. D

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 316B: see Juta's Statutes of South Africa 2012/13 vol 1 at 2 – 422.

Case Information

GC Muller SC for the applicant. E

IP Cooke for the state.

Application for leave to appeal to the Constitutional Court against a decision in the Supreme Court of Appeal. The facts appear from the reasons for judgment.

Order F

1.

Leave to appeal is granted.

2.

The appeal against sentence succeeds.

3.

The sentence imposed on Mr Nabolisa by the Supreme Court of Appeal is set aside. G

Judgment

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.

2013 (2) SACR p224

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...