Frank Nabolisa's request for leave to appeal his conviction hasn't been granted but he may apply for leave to appeal his sentence.
While the Constitutional Court dismissed a request by Sheryl Cwele's partner in crime, Nigerian Frank Nabolisa, for leave to appeal against his conviction for dealing in drugs, he will now have the opportunity to apply for leave to appeal his sentence.
Cwele, the former wife of State Security Minister Siyabonga Cwele, was jailed in October after the Supreme Court of Appeal dismissed an appeal by both her and Nabolisa against their convictions. Instead, the court increased their original 12-year sentences to 20 years.
Nabolisa has until December 14 to lodge a record of his application for leave to appeal against his sentence, and the matter will be heard on March 7.
"The Constitutional Court has considered the applications for leave to appeal against the applicant's conviction and sentence," the order stated. "It has concluded that the application against the conviction should be dismissed on the basis of the absence of prospects of success."
However, the Constitutional Court gave Nabolisa the opportunity for his application for leave to appeal against his sentence to be heard.
While it was anticipated that Cwele might also request leave to appeal her conviction and 20-year sentence for drug dealing, her attorney Madoda Nxumalo told the Mail & Guardian he had not received instructions from her on this matter.
In his judgment, appeal court judge President Lex Mpati, with four judges concurring, outlined reasons why they considered a term of imprisonment for 20 years was "an appropriate sentence in the circumstances".
Crucial to the evidence against Cwele and Nabolisa was the testimony given by witness Charmaine Moss, who said she had been promised a job overseas for two weeks. In conversations with her, Cwele said the visas and tickets would be organised for her by her "brother Frank". Moss bailed on the trip after meeting Nabolisa in Johannesburg and being put up in his friend's hotel, which she described as "very scary".
On top of the evidence from Moss, there was South African drug mule Tessa Beetge's arrest at Sao Paulo Airport in Brazil on June 13 2008 for drug trafficking, after two packets containing 9.25kg and 1.025 kg of cocaine were found in her luggage. Her mother Marie Swanepoel did not let up on the pressure in South Africa, lobbying for Cwele and Nabolisa to be brought to trial.
Nabolisa submitted a founding affidavit in support of his application to the Constitutional Court, describing how the trial court found that he had entered into a criminal agreement with Cwele and a third party, 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, directly implicating me in such an agreement," he claimed. "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."
Nabolisa claimed that he was wrongly convicted by the trial court without affording him the right to challenge certain evidence.