While it was anticipated that Cwele might also request leave to appeal her 20-year sentence for drug dealing, her attorney Madoda Nxumalo told the Mail & Guardian this week he had not received instructions from her to make a similar application.
Cwele, the former wife of State Security Minister Siyabonga Cwele, was jailed last month 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.
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 claims that he was wrongly convicted by the trial court without affording him the right to challenge certain evidence. In outlining the merits of his application, he said the trial court convicted him on the basis that he and Cwele were using Beetge and Moss as agents to facilitate their dealings in cocaine. Nabolisa said he had never admitted that the contents of a bail affidavit of his co-accused, Cwele, were true, nor had he verified the emails and text messages between Cwele and Beetge.
"I have been advised that my rights to challenge 'the evidence' contained in exhibits E [the bail affidavit by Cwele], H and J [the emails and SMSes] was infringed by the trial court in that the trial court incorrectly relied on the contents of these exhibits in convicting me," he said.
Nabolisa said that he had been advised that exhibit E, as it related to him, constituted hearsay evidence, which is normally not admissible if it is contained in an affidavit by a co-accused. He had been 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, he wrote. "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."
The state will still file its papers in the Constitutional Court, in response to Nabolisa's request for leave to appeal his sentence.