SCA CASE NO: 671/11 HIGH COURT CASE NO: CC02/10 In the matter between:
FRANK NABOLISA Applicant
(Second Appellant in the SCA) (Accused 2 in the Court a quo)
and
THE STATE Respondent
APPLICANT’S FOUNDING AFFIDAVIT
I, the undersigned,
FRANK NABOLISA
hereby make oath and state:
1. I am an adult male and the Applicant herein. I am currently incarcerated at the Leeuwkop Prison, Johannesburg.
2. The facts deposed to in this affidavit are within my own personal knowledge and belief, save where otherwise so stated and are both true and correct.
3. Where I make legal submissions in this application, I do so on the advise of my legal representatives, which advise I accept.
4. The Respondent is THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS, appointed by the President of the Republic of South Africa in terms of Section 179 of the Constitution, who is the Head of the National Prosecuting Authority of South Africa and who has offices at VGM Building, 123 Westlake Avenue, Weavind Park, Silverton, Pretoria, Gauteng.
5. This application will also be served on the Director of Public Prosecutions for the Province of Kwazulu Natal by virtue of the fact that it conducted the prosecution in the Kwazulu Natal High Court, Pietermaritzburg and also conducted the appeal in the Supreme Court of Appeal (“SCA”).
HISTORIC BACKGROUND TO THIS APPLICATION
6. I appeared before the Kwazulu Natal High Court in Pietermaritzburg before his Lordship Justice Koen and was convicted by that Court on the 5th of May 2011 of having contravened Section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 – dealing in dangerous
dependence – producing drugs (drug dealing) and sentenced on the 6th of May 2011 to 12 years imprisonment.
7. I was granted leave to appeal against my conviction and sentence to the Supreme Court of Appeal on the 6th of May 2011.
8. I attach hereto a copy of the Trial Court’s judgment granting us leave to appeal to the Supreme Court of Appeal as “FN1”.
9. Accused No 1 applied and was granted leave to appeal against her conviction.
10. In respect of my conviction, the Trial Court found that I entered into a criminal agreement with Accused No 1 and a third party, Tessa Beetge, to import cocaine into South Africa. The Trial Court’s finding was based on circumstantial evidence in that there was no direct evidence adduced by the State, directing implicating me in such an agreement.
The Trial Court held that the circumstantial nature of the evidence adduced by the State constituted the only reasonable inference to be drawn from the proved facts. I was charged together with Sheryl Cwele (Accused No 1), who was similarly convicted and sentenced.
11. My appeal was heard by the Supreme Court of Appeal on the 16th of August 2012. The SCA handed down its judgment on the 1st of October 2012 and dismissed my appeal against my conviction and sentence and increased my sentence of 12 years to 20 years
imprisonment. A copy of the judgment of the SCA is attached hereto as
“FN2”.
NATURE AND SCOPE OF THIS APPLICATION
12. This is an application for leave to appeal in terms of Rule 19 of the Rules of the Constitutional Court against my conviction and the sentence of 20 years imprisonment which was ultimately imposed upon me by the Supreme Court of Appeal.
13. I seek leave to appeal to this Honourable Court on the following constitutional issues:-
13.1. My conviction was constitutionally impermissible in that my right to a fair trial as enshrined in Section 35(3)(1)(i) of the Constitution of the Republic of South Africa, Act 106 of 1996 has been infringed in that I was not afforded the right to adduce and challenge evidence, as will be set out hereinbelow.
13.2. The Supreme Court of Appeal similarly infringed my right to challenge evidence in terms of Section 35(3)(i) as the Supreme Court of Appeal in essence confirmed the Trial Court’s findings in respect of certain evidence.
13.3. The Trial Court and the Supreme Court of Appeal ascribed an interpretation to Sections 1, 5(b) and 13(f) of the Drugs and
Drug Trafficking Act 140 of 1992 which was impermissible, as, in essence, the drugs in question were never collected, nor imported into the Republic of South Africa. My conviction was thus bad in law
13.4. The Supreme Court of Appeal was not empowered to increase my sentence from 12 to 20 years imprisonment in the absence of a cross-appeal by the State, in terms of Section 316B of the Criminal Procedure Act 51 of 1977.
14. I submit that I have not been afforded my right to equal protection and benefit of the law as envisaged in the provisions of Section 9 of the Constitution.
15. I also submit that I have been denied the right to have my matter resolved in a fair public hearing before a Court as envisaged in terms of the provisions of Section 34 of the Constitution.
16. In general I submit that the infringement of my Constitutional rights happened when firstly the Trial Court wrongly convicted me without affording me the right to challenge certain evidence, which conviction was confirmed by the Supreme Court of Appeal and further, when the Supreme Court of Appeal had increased my sentence from 12 years to 20 years imprisonment.
THE MERITS OF THIS APPLICATION
AD CONVICTION
17. At the commencement of the trial, I pleaded not guilty and made no plea explanation in terms of the provision of Section 115 of the Criminal Procedure Act 51 of 1977. The Trial Court convicted me on the basis that my co-accused and I were using Tessa Beetge and Charmaine Moss as agents to facilitate our dealings in cocaine.
18. The cornerstone of the Trial Court’s conviction was based on, as the Trial Court referred to in that regard, as “the admitted evidence”. I do not deem it necessary to attach the judgment of the Trial Court hereto, as I have been advised that it will unnecessarily prolix this application.
Should the Honourable Chief Justice, however, direct otherwise, a copy of the Trial Court’s judgment will be made available.
19. The admitted evidence comprised of the following:-
19.1. Exhibit E – My co-accused’s affidavit in support of her bail application;
19.2. Exhibit F – A schedule which is a record of certain landline calls Accused No 1 made from her office telephone to my cell phone numbers and Tessa Beetge (who was arrested in Sao Paolo for being in possession of the drugs concerned). The contents of
these phone calls did not form part of the evidential material before the Trial Court;
19.3. Exhibit H – A true record of eight data messages (e-mails) which were exchanged between Accused No 1 and Tessa Beetge;
19.4. Exhibit J – A true record of data messages (SMS texts) which were exchanged between Accused No 1 and Tessa Beetge.
20. I attach a copy of Exhibit D, the formal admissions in terms of Section 220 of the Criminal Procedure Act 1977 which document contains the admissions I made as “FN3”.
EXHIBIT E – THE BAIL AFFIDAVIT BY ACCUSED NO 1
21. I admitted that Accused No 1’s affidavit, exhibit “E” is admissible in evidence in these proceedings (before the Trial Court). The admission as contained in “FN3” referred to Section 60(11)(B)(c) of Act 51 of 1977.
22. At no stage did I admit to the truth of the contents of Accused No 1’s affidavit. I did not appear at the bail hearing of my co-accused, and was thus never warned in terms of the provisions of Section 60(11)(B)(c) of the Criminal Procedure Act 1977 that the contents thereof would constitute admissible evidence against me.
23. During my bail application, I elected to remain silent. At the time I had been advised by my legal representatives that the record of my bail application and any admissions contained therein may be used in evidence against me during my trial in terms of the provisions of Section 60(11)(B)(c) of the Criminal Procedure Act. I have been advised that Section 60(11)(B)(c) provides that:
“An accused must be warned by the court during his bail application that should he elect to testify in his bail application or file an affidavit, such evidence may be used against him in his subsequent trial.”1
24. I never understood the legal position to be that the Trial Court would have regard to the contents of Accused No 1’s bail affidavit as providing admissible evidence against me in terms of Section 60(11)(B)(c) of Act 51 of 1977.
25. My admission in respect of Accused No 1’s affidavit was no more than that I admit that in the event of my co-accused electing to testify, such affidavit would be used in cross-examination by the State. The Trial Court at no stage warned me that it intended to use Accused No 1’s affidavit against me.
26. I have been advised that “Evidence of any admission made extrajudicially by any person in relation to the commission of an offence
1 Section 60(11)(B)(c)
shall, if such admission does not constitute a confession … be admissible in evidence against him at criminal proceedings …”.2 Moreover, I have been advised that extracurial statements by one accused is not admissible against another accused.
27. I respectfully submit that I never admitted that the contents of the affidavit of my co-accused were true and correct especially insofar as Accused No 1 referred to me therein.
28. My legal representatives explained to me during my trial before the Trial Court, that the contents of the affidavit of my co-accused was not admissible against me. My admission in this respect was merely that I admitted that the Court complied with the provisions of Section 60(11B)(c) of the Criminal Procedure Act and for that purposes it could be used in evidence.
29. From a reading of the Trial Court’s judgment, it is clear that it largely based its conviction of me on the statement, Exhibit E, made by Accused 1 as well as on Exhibits H and J.
EXHIBITS H AND J – THE E-MAILS AND SMS TEXT MESSAGES BETWEEN ACCUSED NO 1 AND TESSA BEETGE
30. In respect of Exhibits H and J, the data messages (e-mails and SMS texts) which were exchanged between my co-accused and Tessa
2 Section 219A of the Criminal Procedure Act
Beetge, I merely admitted that Exhibits H and J were a true record thereof and that these e-mails and SMS texts were admissible in evidence in terms of Section 15 of Act 25 of 2002. I was not the author thereof, and certainly never agreed to the truth of the contents thereof.
31. I have been advised that Section 15 of the Electronic Communications and Transaction Act, No 25 of 2002, provides for the provision of data messages into evidence. During my trial, my legal representatives explained to me that it was not necessary for the relevant witnesses to testify as to the existence and the generation of the e-mails and SMS texts. I never admitted to the correctness or truthfulness of the contents of Exhibits H and J. The admission was that the e-mails and SMS texts correctly purported what they appear to be and that they could be afforded the same status as documentary evidence ascribed to in Section 15 of Act 25 of 2002.
THE APPLICATION BY ACCUSED NO 1 IN TERMS OF SECTION 174 OF THE CRIMINAL PROCEDURE ACT
32. After the State closed its case, application for a discharge in terms of Section 174 of the Criminal Procedure Act was made on behalf of my co-accused. During the argument in support of the Section 174 application, the trial judge raised the following with Accused 1’s legal representative:
“Koen J: But is that correct, Mr Ngubane? I am looking at Exhibit D paragraph 2 – well paragraphs 1 and 2;
“Accused 1 deposed to an affidavit in support of her bail application”.
And then paragraph 2:
“Accused 1’s affidavit, being Exhibit E, is admissible as evidence in these proceedings.”
Does that mean that it was agreed that the contents thereof would be admitted as the truth of what it records or was it just that it is admitted, it is admitted that that is the affidavit of Accused 1 in the bail proceedings?
Mr Ngubane: My Lord, my understanding was that the State wanted it to form part of its case. It’s a sworn statement by Accused 1. It is evidence and as … (intervention)
Koen J: But it is exculpatory.
Mr Ngubane: Yes.
Koen J: And the State wanted that exculpatory evidence from Accused 1 to be part of their case.
Mr Ngubane: Yes, my Lord, that is my submission that in putting that exculpatory evidence before the Court, the State in its evidence introduced the evidence of Accused 1. That is as far as I can take that.
Koen J: Yes.”
33. My attorney had the argument transcribed.
34. I attach the aforesaid extract from the argument hereto as “FN4”.
35. During the State’s argument in opposition of the application for a discharge by Accused 1, the following exchanges occurred between the trial judge and Counsel for the State:
“Koen J: Yes. Mr Cooke, while we take that adjournment, are you – perhaps before we take it, are you in a position to address me on two things, so I can ponder on it during the adjournment.
Mr Cooke: Yes.
Koen J: The first is the status of this affidavit of Accused 1.
Mr Cooke: Yes.
Koen J: What do you say about that?
Mr Cooke: My Lord, the only reason why the affidavit has to be handed in is that it is – well certainly in terms of the Criminal Procedure Act it says that any evidence the Accused gets (gives?) at the bail application is relevant at the trial.
Koen J: Yes.
Mr Cooke: Now the reason why we have – I decided to hand it in is for this fact that it contains many admissions and confirms a lot of the State’s case. In essence, where she, Accused 1, had … (intervention)
Koen J: But what is the status? What was being admitted?
The contents thereof?
Mr Cooke: No, it’s a previous statement, but not the contents thereof, because obviously there are inculpatory and exculpatory portions.
Koen J: Yes. But now you wanted it handed in for the benefit of inculpatory portions. Can you do that selectively?
Mr Cooke: Well, my Lord, that is a problem with – and of course the other reason why you want to hand it in is that possibility there is a prior inconsistent statement. If one confronts an accused and he or she testified but you made a
prior statement, if the person then says that I did not make that statement, the State is bound by that. That is the decision of Dlamini which … (intervention)”
36. A further exchange between the Trial Court and Counsel for the State occurred:
“Koen J: Yes, but what is this paragraph 2 of Exhibit D mean; “Accused 1’s affidavit, being Exhibit E, is admissible in evidence in these proceedings”.
Mr Cooke: My Lord, the importance was it is admissible because in terms of Section 60 of Criminal Procedure Act it says that a Court hearing a bail application must explain to the Accused that remember anything you say now can be used against you. And so it is an admission that that Section was complied with and it can then be put into the scales.
Koen J: But, Mr Ngubane now says the explanation that is tendered in that affidavit, which is exculpatory in nature, that is evidence before the Court.
Mr Cooke: My Lord, it has not been subject to cross- examination.
Koen J: But he says the admission had the effect that the State accepted it ex facie.
Mr Cooke: Definitely not. My Lord, I have never known that to be the case. My Lord, I go back to the Dlamini case 1988 in which Calga J, as he then was, said that if you wish to prove a previous statement by the Accused, you have got to do it as part of the State’s case, you cannot just confront the Accused when they are cross-examined, because if they deny having made it, you are then stuck. And … (intervention)
Koen J: Yes, anything else on the status?
Mr Cooke: Yes, so it is just because it is like if one proves a statement by the Accused during the course of the trial, the Court then looks at portions which are accepted and portions which are rejected, once all the evidence is heard.”
37. I attach the extract of the argument hereto as “FN5”.
38. From the aforegoing, it is quite clear, and I understood the position to be exactly like that, that the status of Exhibit E was never understood by me or my legal representatives to be that I have admitted the truth of the contents thereof. It is also clear that the State Counsel also understood that to be the position. Moreover, I respectfully state that the learned Trial Judge, obviously, from a perusal of the argument
referred to hereinbefore, must also have realised what the status of Exhibit E was.
THE ARGUMENT ADVANCED ON MY BEHALF IN THE TRIAL COURT
39. During argument on the merits by my Counsel, he specifically drew the Trial Court’s attention to the fact that the only documentary evidence directly implicating me was Exhibit F and certain other documentary evidence, more particularly Exhibit R which was eventually not allowed into evidence by the Trial Court.
40. The Trial Court did not enquire from my Counsel what the status of Exhibit E, H and J was. I respectfully state that if the Trial Court intended to rely on the contents of Exhibits E, H and J, it should have raised its intention to my Counsel in order that he could have dealt with these exhibits in argument.
41. My Counsel, during argument before the Trial Court, referred the Trial Court to the judgment of S v Molimi, and argued to the Trial Court that he was not going to address the Court in this respect as there was no need to since the State did not argue that my co-accused’s statement, Exhibit E was admissible against me in evidence.3
42. I refer the above Honourable Court to a typed extract from my Counsel’s address to the Trial Court, annexed hereto as “FN6”.
3 S v Molimi (CCT 10/07) [2008] ZA CC2; 2008 (3) SA 608 (CC); 2008(2) SACR 76 (CC); 2008 (5) BCLR 451 (CC); 4 March 2008
43. My Counsel prepared a bundle containing authorities in which was included a copy of the Molimi judgment. My Counsel, at the end of his argument, handed the entire file containing all the authorities he referred to, to the Trial Court.
SECTION 35(3)(i) OF THE CONSTITUTION
44. I have been advised that my right to challenge the “evidence” contained in Exhibits E, H and J, was infringed by the Trial Court in that the Trial Court incorrectly relied on the contents of these exhibits in convicting me.
45. I respectfully submit that if the Trial Court had indicated to my Counsel during argument that it intended to rely on the contents of Exhibits E, H and J against me, I would immediately have advised my Counsel to withdraw the admissions I made in terms of Section 220 as contained in Exhibit D (Annexure “FN3”).
THE JUDGMENT OF THE SUPREME COURT OF APPEAL
46. The Supreme Court of Appeal in its judgment, held that Exhibit E was evidential material, although it was untested. It held further that Exhibit E was confirmed insofar it relates to the communication between my
co-accused and Tessa whilst the latter was abroad, by the contents of the e-mails and SMS texts.4
47. In paragraphs 21 to 23 the Supreme Court of Appeal deals with certain portions of Exhibit E and certain of the text messages between my co- accused and Tessa. Like the Trial Court, the Supreme Court of Appeal heavily relied on the contents of my co-accused’s affidavit and the e- mail and text messages referred to hereinbefore. The Supreme Court of Appeal incorrectly confirmed my conviction by relying on the contents of the affidavit of my co-accused and the e-mails and text messages (Exhibits E, H and J).
48. Although no constitutional matter was raised and argued on my behalf in the Supreme Court of Appeal, my Counsel, in his Heads of Argument to the Supreme Court of Appeal, argued that the Trial Court erred in drawing inferences against me from the statement of the First Appellant (Exhibit E), the e-mails (Exhibit H) and the SMS messages (Exhibit J).
He argued that this was impermissible and referred the SCA to State v Ralukukwe5.
49. He also argued to the Supreme Court of Appeal, that the Trial Court never indicated to him that Exhibits E, H and J were to be taken into account against me by the Trial Court. I attach hereto that portion of my Counsel’s Heads of Argument as “FN7”
4 Paragraph 16 of the SCA Judgment
5 S v Ralukukwe 2006 (2) SACR 394 (SCA) at 400 g [14] – 401 a - b
50. I respectfully submit that the Trial Court and the Supreme Court of Appeal infringed on my right to challenge evidence and that I accordingly did not enjoy a fair trial.
HEARSAY EVIDENCE
51. I have been advised that what is contained in Exhibit E insofar as it relates to me, constitutes hearsay evidence and that hearsay evidence is normally not admissible if it is contained in an affidavit by a co- accused.
52. I am advised that if the State intended to rely on the contents of Exhibit E, it should have applied to the Trial Court to have Exhibit E admitted into evidence in terms of the provisions of Section 3 of the Law of Evidence Amendment Act, Act 45 of 1988.
53. The State did not attempt to rely on the provisions of the General Law Amendment Act. In this respect I refer to what the above Honourable Court stated in Molimi’s case supra, more particularly paragraphs 33 to 36 of the Molimi judgment.
54. If the Trial Court alerted me through my Counsel that it intended to rely on the contents of Exhibit E, a “timeous and unambiguous ruling on the admissibility of Exhibit E should have been done”.6
6 Molimi paragraph 41
55. In essence, the late admission of the hearsay evidence (during judgment) contained in my co-accused’s bail affidavit was highly prejudicial to me and in conflict with the interests of justice.7
56. I was unable to cross-examine Accused 1 in respect of the allegations levelled against me in Exhibit E, and the e-mails and SMS texts, Exhibits H and J). I state that the contents of the e-mails and SMS texts also amounts to hearsay and was incorrectly accepted by the Trial Court and ultimately also by the Supreme Court of Appeal.
57. I respectfully state that if the contents of Exhibits E, H and J are to be excluded from the Trial Court’s judgment, the entire State case is eroded to such an extent that the State failed to prove my guilt beyond reasonable doubt.
58. The remaining evidence of the State witnesses, Swanepoel, Moss, in particular, does not directly implicate me, and is insufficient, in the absence of Exhibits E, H and J to sustain a conviction. I have been advised that it is not necessary to go into any more detail in this application in respect of the remaining evidence against me.
59. I further state that the Supreme Court of Appeal, with respect, like the Trial Court, misdirected itself in respect of the true nature and extent of Exhibits E, H and J. In this respect, the judgment in the Molimi case is
7 Molimi paragraph 43
apposite. I humbly wish to refer to paragraphs 50 to 54 of the Molimi judgment.
60. I respectfully state that I did not enjoy a fair trial and that my trial was thus not conducted in accordance with “notions of basic fairness and justice”, or with the “ideas underlying the concept of justice which are the basis of all civilised systems of criminal administration”.8
61. In conclusion, I request that I be granted leave to appeal against my conviction.
CONSTITUTIONAL MATTER
62. I have been advised that in terms of Section 167(3)(b) of the Constitution, issues to be decided by the above Honourable Court must be constitutional matters and that it should also be in the interests of justice that the above Honourable Court should hear an Appeal.9
63. I respectfully submit that my right to challenge evidence in particular, as enshrined in Section 35(3) of the Constitution, is a constitutional matter and that on that basis I should be granted leave to appeal. Moreover, it is in the interests of justice that I be granted leave to appeal in this matter. It is significant that there are thousands of accused persons who appear in the Courts of our country on a daily basis. It would be
8 S v Zuma and others 1995 (2) SA 642 (CC) 652 A – D
9 S v Boesak 2001 (1) SA 912 (CC) at 918 [11] to [12]
Bogaard para 17 to 21
unjust to allow other accused persons, of who many are undefended, to be subjected to the risk of being found guilty on an affidavit made by a co-accused in a bail application.
64. A further disquieting feature of the judgment of the Supreme Court of Appeal is that on the one hand it would appear as if it accepted portions of Exhibit “E” confirming our conviction and, on the other hand, it rejected Accused No 1’s version as contained in Exhibit E to be false.
Even so the contents thereof was taken into account by both the Trial Court and the Supreme Court of Appeal against me.
AD SENTENCE
65. The Respondent (The State) did not apply for leave to appeal against the sentence imposed on me by the Trial Court. The State merely argued to the Trial Court that a sentence of 15 years imprisonment should have been imposed by the Trial Court.
66. I respectfully submit that the State should have sought leave to appeal against the sentence imposed by the Trial court in terms of the provisions of Section 316B of the Criminal Procedure Act.
67. Section 316B provides that a Director of Public Prosecutions has the power to take a sentence imposed by a High Court on appeal to the
Supreme Court of Appeal.10 Section 310A and Section 316B were inserted into the Criminal Procedure Act by Section 11 of Act No 107 of 1990. Before 1990, the State had no right to appeal against a Trial Court’s sentence to the Supreme Court of Appeal.
68. The State’s Heads of Argument to the Supreme Court of Appeal stated that the minimum sentence of 15 years should have been imposed by the Trial Court.
69. Subsequently the State, in its supplementary heads, indicated that it intended to rely on the decision in Keyser v the State and would ask that a sentence of 20 years be imposed by the Supreme Court of Appeal.
70. During argument in the Supreme Court of Appeal, my Counsel argued that the sentence imposed by the Trial Court was just and that no misdirections were committed by the Trial Court.
71. The above Honourable Court delivered the judgment in Bogaards v the State11 on the 28th of September 2012. The judgment in my matter was handed down by the SCA on Monday, the 1st of October 2012.
72. In Bogaards it was recognised that:
10 Section 316B(1) provides: “Subject (2) the Attorney-General (now the DPP) may appeal to the Appellant Division (now SCA) against a sentence imposed upon an Accused in a criminal case in a superior court.”
11 [2012] ZACC 23
“FACILITATION OF INFORMED EXERCISE OF THE RIGHT OF APPEAL
60 When accused persons exercise their constitutional right of appeal and appeal against their conviction and/or sentence, they are necessarily attempting to improve their legal fate. The exercise of the right of appeal should, therefore, not be hindered by fear of the possibility of a more severe sentence being imposed without having an opportunity to give pointed submissions on the potential increase. Otherwise, prospective appellants may not exercise their right at all. Therefore, an appellant’s legal position should not be worsened without proper notice. Either in the form of a cross- appeal, or notice from the Appellate Court that it is considering an increase in sentence or that it proposes to impose a higher sentence than that imposed by a trial court consequent upon convicting the appellant of a different offence.”12
“61. Where the State lodges a cross-appeal against sentence, this alerts an accused person to the possibility of an increase in sentence and provides her with a meaningful opportunity to make pointed argument in regard thereto.
12 Bogaards paragraph 60
In instances where a Court is mero moto considering an increase, the constitutional right to a fair trial demands that an accused person should have the benefit of knowing what risk she may run into in her quest to ease a pinching shoe by invoking the appeal process. The accused should be allowed to choose whether to run the risk of a sentence increase, attempt to convince the Court to reach the opposite conclusion by making adequate representations on why the sentence should not be increased, or apply to the Court for leave to withdraw her appeal.”13
73. My conviction in terms of Section 5(b) of the Drug Act was contrary to the provisions of Section 35(3)(1) of the Constitution, which provides that every person has the right not to be convicted of an act or omission that was not an offence. In relation to the definition of “drug offence”
provided in Section 1 of the Drug Act, more particular in relation to a drug offence committed in the Republic and in relation to a drug offence committed outside the Republic, this Court is requested to consider the proper meaning of the words in Section 1 of the Act. The proper interpretation of the Act has to be interpreted in terms of Section 39(2) of the Constitution. I submit that my conviction was bad in law as I did not commit an act or omission in the Republic. The drugs were never collected or imported in the Republic.
13 Bogaards paragraph 61
74. In conclusion, I respectfully state that paragraphs 68 to 71 of the judgment in the Bogaards case is relevant to my application, and need not repeat it in this application.
CONSTITUTIONAL MATTER
75. I respectfully state that imprisonment is a drastic infringement of a person’s constitutional rights, namely the right to liberty, privacy and dignity.
76. Section 35(3)(o) of the Constitution provides that everyone has the right of appeal to, or review by, a Higher Court. This right must be properly exercised by an accused person.14
77. The circumstances under which the SCA is entitled to increase a sentence is a constitutional issue.
78. In the present matter, there was no cross-appeal by the State in terms of Section 316B of the Criminal Procedure Act. I respectfully state that, taking into account the Bogaards decision by the above Honourable Court, notice is not sufficient to put in motion the SCA’s discretionary powers to increase a sentence. I respectfully state that this is a constitutional matter or an issue connected with a constitutional matter and that the above Honourable Court should grant leave to appeal, as it relates to my fair trial rights, especially my right to appeal
14 Bogaards paragraph 58
PROSPECTS OF SUCCESS AND THE INTERESTS OF JUSTICE
79. The application also relates to the issue of the State’s right to challenge sentence on appeal, absent a cross-appeal by the State. Good prospects of success exist in this matter. Accordingly, it is in the interests of justice that appeal be granted.fs
STATEMENT IN TERMS OF RULE 19(3)(d)
80. I have not applied and do not intend to apply for leave or special leave to appeal to any other Court.
WHEREFORE I pray that leave to appeal be granted as set out in terms of the Notice of Motion.
_____________________
DEPONENT
I HEREBY CERTIFY that the deponent has acknowledged that he knows and understands the contents of this affidavit, which was signed and sworn before me at _______________ on this the _______ day of ______________ 2012 the regulations contained in Government Notice No R1258 of 21 July 1972, as amended, and Government Notice No R1648 of 19 August 1977, as amended, having been complied with.
___________________________
COMMISSIONER OF OATHS
