Mr Frank Nabolisa was convicted in the KwaZulu-Natal High Court of dealing in cocaine under section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, arising from an international drug trafficking enterprise involving the recruitment of a courier who was arrested in Brazil with over 10 kilograms of cocaine. The High Court imposed a sentence of 12 years’ imprisonment, deviating from the prescribed minimum sentence of 15 years due to compelling circumstances. Mr Nabolisa appealed against both conviction and sentence to the Supreme Court of Appeal (SCA). The State did not formally cross-appeal but indicated in its Heads of Argument that it sought an increased sentence. The SCA dismissed the appeal against conviction and increased the sentence to 20 years’ imprisonment. Mr Nabolisa then applied to the Constitutional Court for leave to appeal against the increased sentence, contending that the State was required to cross-appeal and that the increase without such a cross-appeal rendered the proceedings unfair.
Leave to appeal was granted, but the appeal against sentence was dismissed. The sentence of 20 years’ imprisonment imposed by the Supreme Court of Appeal remained intact.
The case clarifies the interpretation of section 316B of the Criminal Procedure Act and confirms that the State is not required to formally cross-appeal to seek an increased sentence when the accused has already appealed. It affirms the broad sentencing powers of appellate courts and develops constitutional principles of fairness in sentencing appeals, particularly regarding notice of potential sentence increases.