Frank Nabolisa v The State

Frank Nabolisa, a Nigerian national, and Sheryl Cwele were convicted in the KwaZulu-Natal High Court of dealing in dangerous dependence-producing drugs (cocaine valued at approximately R2 million) in contravention of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. The High Court imposed a sentence of 12 years' imprisonment on each accused, finding compelling circumstances to deviate from the 15-year minimum prescribed by section 51(2) of the Criminal Law Amendment Act 105 of 1997. Nabolisa appealed to the Supreme Court of Appeal against both conviction and sentence, while Cwele appealed only against conviction. The State did not apply for leave to cross-appeal but indicated in its heads of argument (and later supplementary heads) that it would argue for an increase in sentence - first to 15 years, then to 20 years following the Keyser judgment. The Supreme Court of Appeal dismissed the appeals against conviction and increased the sentences to 20 years' imprisonment for both appellants. Nabolisa applied to the Constitutional Court for leave to appeal against both conviction and sentence; leave was granted only in respect of sentence.

• Whether section 316B of the Criminal Procedure Act 51 of 1977 requires the State to formally cross-appeal to seek an increase in sentence where the accused has appealed
• Whether the State's failure to cross-appeal constitutes an irregularity
• Whether notice in heads of argument by the State suffices to place the issue of increased sentence before the court of appeal
• Whether the appeal process was conducted in accordance with the constitutional right to a fair appeal under section 35(3)(o) of the Constitution
• Whether any irregularity resulted in a failure of justice

Leave to appeal granted. Appeal against sentence succeeds. The sentence of 20 years' imprisonment imposed by the Supreme Court of Appeal is set aside and the sentence of 12 years' imprisonment imposed by the High Court is reinstated.

Section 316B of the Criminal Procedure Act 51 of 1977, read with section 316, imposes peremptory obligations on the State to apply for leave to appeal (or cross-appeal) against sentence within the statutory time period. The State's right to appeal against sentence is entirely governed by statute and is not sourced from common law or practice. Where the State fails to obtain leave to cross-appeal against sentence, it cannot place the issue of increased sentence before a court of appeal through mere notice in heads of argument. Section 322 of the Criminal Procedure Act sets out the powers of a court of appeal, but these powers can only be exercised when an appeal is properly and competently before the court through compliance with the statutory procedures in sections 316 and 316B. A court of appeal lacks jurisdiction to increase a sentence at the instance of the State where the State has not obtained leave to cross-appeal. The failure to comply with the statutory requirements of section 316B is not merely a matter of form but goes to the substantive issue of the court's competence to adjudicate the matter, rendering the proceedings irregular and vitiating them.

The minority judgment (Skweyiya J) expressed the view that requiring the State to cross-appeal where the accused has already appealed would be superfluous and illogical, as the issue of sentencing is always potentially before an appellate court. The minority also observed that there are inconsistencies in practice regarding whether the State uses informal notification or formal cross-appeal. The minority emphasized that what matters is substantive fairness - whether the appellant receives adequate notice and opportunity to defend against a proposed increase - rather than the form or source of the notice. The majority judgment (Jafta J) observed that the seriousness of the offence may well have justified a 20-year sentence but that this was not the issue before the Court. The majority also noted, obiter, the problematic situation regarding Ms Cwele's sentence, as she had not appealed against sentence at all, yet the Supreme Court of Appeal increased it - though this was not directly adjudicated as she was not a party to the Constitutional Court proceedings. The majority deprecated the practice of treating historical practices as continuing legal rules in the absence of statutory foundation.

This case clarifies the procedure that must be followed when the State seeks to increase a sentence on appeal. The majority judgment establishes that section 316B of the Criminal Procedure Act creates mandatory procedural requirements for the State to appeal against sentence, including the requirement to apply for leave to cross-appeal within statutory time limits. The decision reinforces that criminal appeals are entirely governed by statute and that courts of appeal lack jurisdiction to entertain matters not properly placed before them through statutory procedures. The case limits the scope for informal processes in criminal appeals and emphasizes procedural fairness as a component of the constitutional right to a fair appeal. It represents an important development in the interpretation of section 316B and its relationship with section 322 of the Criminal Procedure Act, rejecting the notion that a historical practice of informal notice can override statutory requirements. The decision impacts prosecutorial practice in criminal appeals and reinforces the principle that the State, like accused persons, must comply strictly with statutory appeal procedures.