Cwele: state only has circumstantial evidence

2011-03-17 00:00

THE prosecution maintains the circumstantial evidence against drug trafficking accused Sheryl Cwele and Frank Nabolisa consisting of phone calls, e-mails and SMS messages as well as oral evidence presented at their trial paints an “overwhelming” picture of their guilt on a charge of dealing in drugs.

Presenting his argument in the Ramsgate high court yesterday, State advocate, Ian Cooke urged the court to find Cwele — wife of national state security minister Siyabonga Cwele — and Nabolisa (a Nigerian) guilty of dealing in drugs, alternatively attempting to deal in drugs, or of conspiracy to deal in drugs.

He said the evidence shows that Cwele and Nabolisa were part of a “joint enterprise” to recruit South Coast women Tessa Beetge and Charmaine Moss as drug mules to bring narcotics into the country from abroad, leading to Beetge’s arrest at Sao Paulo airport in Brazil on June 13, 2008 with 10,230 kg of cocaine in her luggage.

In reply advocate, Mvuseni Ngubane for Cwele argued that the case presented against her amounts to “nothing more than suspicion” and said this is not enough to convict her of any offence. He submitted in argument before Judge Piet Koen yesterday that Cwele’s decision not to testify in her defence has left a “yawning gap” in the State’s case. Both Ngubane and Advocate Koos Van Vuuren, SC, for Nabolisa attacked the failure by the State to call evidence to prove the “originality, authenticity and accuracy” of intercepted phone calls between Nabolisa, Cwele and Beetge.

Judge Koen will deliver his judgment in the case in the Pietermaritzburg high court on May 4. During argument Cooke was taxed by the judge (sitting with assessor Gerhard Barnard) about the prosecution’s failure to lead evidence to prove how the calls admittedly emanating from Nabolisa’s two cellphones and which were legally intercepted by police, actually came to be recorded on a CD disc from which they were transcribed, and whether this is prerequisite in terms of the law.

Cooke submitted that courts ought to acknowlege the leaps made in developing modern technology. He said the calls “dovetail” with all the other available evidence and it “boggled the mind” to suggest that the detailed contents could have been manufactured.

He also submitted the state has proved the accuracy of the transcripts before court even though there were admittedly some typographical errors.

Van Vuuren and Ngubane submitted that the failure by the prosecution to provide proof that the recordings of the calls could not have been “manufactured” or tampered with deems the evidence inadmissible and sounds a death knell for the State’s case.

They also maintained that in the face of no reliable evidence implicating their clients, Cwele and Nabolisa were not obliged to take the witness stand to defend themselves.

Ngubane again submitted — as he did in his earlier application for Cwele’s discharge at the close of the State’s case which was refused — that Cwele’s affidavit made in support of her bail application is sufficient answer to the prosecution’s case.

 Ngubane said the State has no evidence to gainsay Cwele’s statement that connected Beetge with Nabolisa “because he wanted white women to run his Johannesburg company”; that Beetge asked Cwele to speak to her parents and tell them she was going to work in London as they would refuse to let her work in Johannesburg; and that later on — whilst in South America — Beetge had communicated with her about a “French boyfriend” and that she was going to Peru. He further submitted that on the State’s evidence Charmaine Moss alleged only that Cwele asked her to bring a “parcel” from Turkey for Nabolisa. “Certainly there is no evidence whatsoever that the parcel was cocaine”.

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