Cwele and her co-accused Frank Nabolisa were tried and convicted in the Pietermaritzburg High Court for dealing in cocaine with a street value of about R2-million.
They were sentenced to 12 years imprisonment, but Cwele appealed against her conviction while Nabolisa challenged the conviction and the sentence imposed on him.
They lost that appeal and their sentences increased to 20 years on request of the prosecutor.
But yesterday the Constitutional Court said the Supreme Court had no jurisdiction to increase the sentence as the director of public prosecutions had not actually appealed the sentences handed down in the high court as required by the Criminal Procedure Act.
Yesterday’s ruling stated that “the proposition that where an accused person appeals against conviction only, it would be improper to increase the sentence imposed based on the state’s request.
“The failure to apply for leave to appeal the sentence goes to the root of the proceedings in the Supreme Court of Appeal in relation to the increase of sentence.
“It is fatal to the increase imposed by that court, because it means the Supreme Court of Appeal simply did not have jurisdiction to consider the issue of an increase in sentence.”
The majority of Constitutional Court judges held that the appeal should succeed and the sentence of 20 years imposed by the Supreme Court of Appeal must be set aside.
