Nabolisa v S (CCT 105/12) [2013] ZACC 17; 2013 (2) SACR 221 (CC); 2013 (8) BCLR 964 (CC) (12 June 2013)

Nabolisa v S (CCT 105/12) [2013] ZACC 17; 2013 (2) SACR 221 (CC); 2013 (8) BCLR 964 (CC) (12 June 2013)

The Constitutional Court, in a split decision, addressed whether the State must formally cross-appeal to seek an increase in sentence when the accused has appealed. The majority (Skweyiya J) held that section 316B of the Criminal Procedure Act does not require a formal cross-appeal by the State in such circumstances; the issue of sentence is already before the appellate court, and the State's notice in its Heads of Argument sufficed to alert the applicant to the risk of an increased sentence. The applicant was adequately notified and had the opportunity to argue against an increase, and no irregularity or miscarriage of justice occurred. The minority (Jafta J) disagreed, finding that the...

Citation
[2013] ZACC 17
Parties
Applicant: Frank Nabolisa; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
12 June 2013
Case Number
CCT 105/12
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Sentence Following Supreme Court of Appeal Judgment
Outcome
Leave to appeal granted; appeal against sentence succeeds; sentence imposed by the Supreme Court of Appeal set aside and sentence imposed by the High Court reinstated.
Judges
Skweyiya, Moseneke, Van der Westhuizen, Jafta, Mogoeng, Froneman, Khampepe, Mhlantla, Nkabinde, Zondo
Legal Topics
Criminal Appeal Procedure, Cross Appeal Requirements, Fair Trial Rights, Minimum Sentencing Legislation, Notice of Increased Sentence
Criminal Law Constitutional Law Criminal Appeal Procedure Cross Appeal Requirements Fair Trial Rights Minimum Sentencing Legislation Notice of Increased Sentence

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Parties

Frank Nabolisa

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Sentence Following Supreme Court of Appeal Judgment

Legal Issues

  1. 1 Does section 316B of the Criminal Procedure Act require the State to formally cross-appeal to seek an increase in sentence when the accused has appealed?
  2. 2 Does the State's failure to cross-appeal render the appeal unfair?
  3. 3 Was the appeal conducted in accordance with the dictates of a fair hearing?

Ratio Decidendi

The Constitutional Court, in a split decision, addressed whether the State must formally cross-appeal to seek an increase in sentence when the accused has appealed. The majority (Skweyiya J) held that section 316B of the Criminal Procedure Act does not require a formal cross-appeal by the State in such circumstances; the issue of sentence is already before the appellate court, and the State's notice in its Heads of Argument sufficed to alert the applicant to the risk of an increased sentence. The applicant was adequately notified and had the opportunity to argue against an increase, and no irregularity or miscarriage of justice occurred. The minority (Jafta J) disagreed, finding that the...

Court Disposition

Leave to appeal granted; appeal against sentence succeeds; sentence imposed by the Supreme Court of Appeal set aside and sentence imposed by the High Court reinstated.

Orders

  • Leave to appeal is granted.
  • The appeal against sentence succeeds.