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It was not clear whether Sheryl Cwele will automatically benefit from the judgment or whether her lawyers will have to make a further court application.
Durban – Drug dealers Sheryl Cwele and Frank Nabolisa were handed “get out of jail earlier” cards by the Constitutional Court on Wednesday, which – in a majority judgment – ruled that the Supreme Court of Appeal (SCA) had no legal right to increase their prison sentences from 12 to 20 years.
While the application challenging the increase in sentence was brought by Nabolisa on his own, the judgment specifically makes reference to Cwele, saying the issue of her sentence was not “competently placed before the court (the SCA) for re-evaluation”.
Lawyers who acted for her in the matter could not be reached for comment.
But a relative, who identified herself only as Luleka, said: “This is good news. I am going to visit her in prison this weekend. She will be happy.”
It was not clear whether Cwele will automatically benefit from the judgment or whether her lawyers will have to make a further court application.
Nabolisa, a Nigerian, and Cwele, the former Hibiscus Coast head of community health and former wife of State Security Minister Siyabonga Cwele, were convicted of dealing in cocaine by Pietermaritzburg High Court Judge Piet Koen in May 2011 and each sentenced to 12 years’ imprisonment.
The Constitutional Court ruled that the Supreme Court of Appeal (SCA) had no legal right to increase Frank Nabolisa’s prison sentence from 12 to 20 years.
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They had recruited Tessa Beetge and Charmaine Moss to transport drugs. While Moss turned down the offer, Beetge accepted and was arrested in Brazil in 2008 with cocaine. She is serving an eight-year prison sentence in that country.
Nabolisa appealed against his conviction and sentence in the SCA, while Cwele appealed only against her conviction.
Last October, the supreme court dismissed their appeals and, after argument by the State, increased their sentences.
Nabolisa took the matter to the Constitutional Court, where he was granted leave to appeal against his sentence on the constitutional ground that his right to a fair appeal might have been infringed.
On Wednesday, Judge Chris Jafta, with six judges concurring, noted that the issue was not the seriousness of the offence “which may well justify the sentence of 20 years” or the competency of the SCA to increase the sentence, but concerned the process followed by the State in seeking and obtaining the increase in sentence.
The Criminal Procedure Act dictated that the State, as with an accused, must apply for leave to appeal, which must be lodged with the trial court within 14 days of sentencing. This had not been done.
“Although Cwele has not lodged an application for leave to appeal with the court, it is appropriate to refer to her case in testing the propriety of the procedure followed by the State and endorsed by the SCA.
“The answer in respect of Cwele’s case is an easy one. The State was not entitled to argue for an increase of her sentence where she herself did not appeal against her sentence. Consequently, it was not open to the SCA to increase her sentence under these circumstances,” they said.
In the case of Nabolisa – who did appeal against his sentence – the failure by the State to obtain leave to appeal “is fatal to the increase imposed by the SCA because it simply did not have jurisdiction to consider the issue of an increase in sentence”.
Judge Thembile Skweyiya, with two judges concurring, found differently. In their minority judgment, they said they would have dismissed the appeal and left the 20-year sentence alone.
They said Nabolisa had received adequate notice that the State would seek to increase his sentence and there was an “informal practice” where the State could motivate for an increase without lodging a cross-appeal where the accused had instigated an appeal.
The National Prosecuting Authority’s Natasha Ramkisson said the authority was studying the judgment.
“Whether it will apply to Cwele or whether her sentence will be decreased is not a decision for the NPA to make,” she said.
Beetge’s mother, Marie Swanepoel, expressed disappointment. “They were the main people. They should stay in jail for a lot longer.”
Her last word from her daughter had been a Mother’s Day card. Communication with her and with officials was “very difficult”.
The Mercury
