Cwele case rides on old law

2010-12-13 00:00

SEVERAL burning issues will come under the spotlight this week when Sheryl Cwele and her Nigerian co-accused, Frank Nabolisa, return to the dock in Pietermaritzburg for the resumption of their trial on drug trafficking charges.

When the case resumes today it is expected that high court Judge Piet Koen will indicate whether he will allow the prosecution to introduce intercepted telephone calls as evidence.

The phone calls are alleged to have passed between Cwele, Nabolisa, alleged south coast drug mule Tessa Beetge and others at the critical time.

The evidence is viewed as crucial to the state’s case, along with the testimony of Beetge herself, which the state has indicated may be taken via a Skype link to the Brazilian prison where Beetge is serving a sentence for possession of cocaine.

State advocate Ian Cooke submitted previously that the tapped cellphone calls will “give a detailed picture of what actually went on”.

He said the calls were legitimately intercepted by the police in terms of a directive issued by a judge under the Interception and Monitoring Act of 1992.

The defence for both Cwele and Nabolisa, however, objected to the telephone records being admitted into evidence.

Cwele’s advocate, Mvuseni Ngubane, submitted during legal argument that it would be unconstitutional for the state to use the contents of intercepted calls between Cwele and Nabolisa and that this would “trample” Cwele’s right to privacy.

Nabolisa’s advocate, Koos van Vuuren SC argued that the tapping of Nabolisa’s cellphones was “illegal” on grounds that the 1992 legislation did not allow cellular conversations to be monitored and intercepted.

He argued that cellphone calls are covered only by the new Interception and Monitoring Act, which only came into effect on June 30, 2008, and that the old Act was limited to “telecommunications” on a landline.

Another issue that remains unresolved is the incomplete testimony of Charmaine Moss who the state alleges was a victim of a conspiracy to deal in drugs involving Cwele and Nabolisa.

Moss fell ill soon after the defence began cross-examining her version, and a doctor’s certificate prevented her from returning to the witness box for the remainder of the court session.

If she does not finish her testimony the state may be forced to withdraw the conspiracy charge against the accused arising from their alleged dealings with Moss.

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