The court reserved judgment on Frank Nabolisa's appeal, which was heard in March.
He had challenged an eight-year increase in the 12-year jail term imposed on him by the Supreme Court of Appeal when he appealed against his conviction and sentence.
He and his co-accused Sheryl Cwele – the former wife of State Security Minister Siyabonga Cwele – received the same sentence during their trial in the Kwazulu-Natal High Court in 2011.
The state did not cross-appeal, but asked in its heads of argument that the sentence be increased to 15 years. It later argued for an increase to 20 years, on the strength of recent case law.
In March, the Constitutional Court heard lengthy and detailed argument about whether the state was obliged to apply for leave to appeal, and whether the SCA had acted fairly.
Other issues under consideration were whether the SCA had the power to increase the sentence, and whether Nabolisa's rights were infringed.
Increased sentence
State advocate Ian Cooke SC said when an accused appealed, the state could allow the SCA to use its "statutorily defined powers" to increase a sentence.
It was a rule of practice that, before increasing the sentence, proper notice be given to the appellant.
"Proper notice was twice given in this respect," said Cooke.
"The appellant [Nabolisa] was warned months before."
He said the state had acted responsibly by giving two notices and had saved the court an embarrassment.
Gerrit Muller SC, for Nabolisa, contended that his client's right to a fair trial had been infringed.
"By disregarding the provisions of section 316B and by entertaining the request … to increase the sentence the court infringed the applicant's right to a fair trial … The SCA therefore caused a miscarriage of justice," he said.
Section 316B of the Criminal Procedure Act gives the director of public prosecutions the right to apply for leave to appeal against a sentence imposed by a superior court.
Prejudiced
"Gate-crashing should not be allowed," said Muller.
"You have to go through the gate of section 316 to get to increase the sentence."
Muller said before a sentence could be increased, such an application needed to be granted. A notice in heads of argument was not sufficient.
He submitted that his client had been prejudiced because the court initiated the sentence at the state's request.
However, Cooke said it made no difference "as long as he [Nabolisa] knew … a notice to increase the sentence was being considered".
He argued that there was no peremptory form the notice should take.
"The difficulty arose when the accused was given a very lenient sentence … and the state was left without a remedy," said Cooke.
"The appellant was warned months before." – Sapa