- Twice-convicted drug dealer Frank Nabolisa tried to have one of his convictions overturned by taking issue with the use of the term ‘ag shame’ during court proceedings.
- Nabolisa was associated with the ex-wife of former Intelligence Minister Siyabonga Cwele, who aided him in recruiting drug mules to send to South America
The story of the Nigerian drug dealer who befriended the wife of a Sout African State Intelligence Minister, seemingly without her husband’s knowledge, is one of the many urban legend-like news stories that appeared in the ever-entertaining and slightly crazy Zuma years.
Frank Nabolisa, for a time a household name, was an associate of Sheryl Cwele, the former wife of Siyabonga Cwele. Cwele, now South Africa’s Ambassador to China, served as Intelligence Minister from May 2009 to May 2014. He divorced his wife in 2011, following the revelation of her role in drug trafficking.
Nabolisa, who was arrested and sentenced alongside Sheryl Cwele, has spent the past decade fighting to have two drug-related convictions overturned. His latest bid was denied by the Supreme Court of Appeal on 19 January, setting him on a path to grow old in prison.
In May 2011, Nabolisa was convicted in the KwaZulu-Natal High Court alongside Cwele for drug dealing after it was discovered that they had sent Tessa Beetge to South America as a drug mule. Nabolisa and Cwele were each sentenced to 12 years in prison and that sentence was later increased to 20 years by the Supreme Court of Appeal (SCA). The Constitutional Court subsequently scrapped the SCA’s decision, reverting Nabolisa and Cwele’s sentence to 12 years.
But this was not the end of Nabolisa’s run-ins with the law. In 2014, he was convicted in a separate drug case, after police found 2.4kg of cocaine, 5.8kg of paracetamol and 2.7kg of hexamine at his girlfriend’s house. In May 2014, he was sentenced to 20 years’ imprisonment for dealing in drugs and 10 years’ imprisonment for contravening the Medicine and Related Substances Act. These sentences would begin once he had concluded the 12-year sentence handed down in 2011.
Challenge to process
Nabolisa’s latest challenge came before the Supreme Court of Appeal in August, criticising the process followed by regional magistrate Syta Prinsloo in finding him guilty.
At the time of his arrest, police had acted on a tip-off which led them to an Ebony Park house occupied by Nabolisa’s then girlfriend Natasha Mashiane and her mother. Police searched the house and found the drugs in two suitcases. During the trial, Nabolisa and Mashiane, who was accused alongside him, questioned the integrity of the forensic analysis process. Mashiane was acquitted.
Dr Cornelius Christoffel Viljoen, a biochemist, testified at the trial that only a few of the samples were analysed, questioning the finding that the substances that were found were “dangerous dependence-producing drugs”. He also argued that the forensic findings were incorrect “because the testing machines used had not been calibrated”.
Nabolisa told the SCA that a second witness for the defence, Dr Andrew Dinsmare, was treated rudely by the prosecutor, who used the term “ag shame” during cross-examination. Nabolisa argued that his right to a fair trial had been infringed and sentencing proceedings were unfair.
Appeal dismissed
Acting Judge of Appeal Zamani Nhlangulela, who penned the judgment on behalf of the court, found that Nabolisa’s rights to a fair trial had not been violated.
“The police witnesses conducted a lawful search and seizure of the substance exhibits. I cannot find irregularities in the manner in which the charge sheet was framed and the charges were put to him. The first respondent handled the plea proceedings and the trial properly. The offences that were proved against the appellant were competent and he was convicted on the strength of credible State evidence,” Nhlangulela said.
He added that the evidence of defence witnesses Viljoen and Dinsmare were “correctly rejected by the regional magistrate”.
“It transpired during cross-examination that the criticism made by these witnesses against the forensic findings of [Sergeant Rodney] Machimane was not buttressed with scientific facts. They testified without having read the working documents of Sgt Machimane. They were proven not to possess experience in analysing drugs. They had no experience in the use of the HP4 and HP9 machines that were calibrated by Major Makwatane and used by Sgt Machimane.
‘Chemical layman’
“Dr Viljoen conceded that he was a ‘chemical layman’. He was unable to point to any one compound in the list compiled by the USA National Institute for Standards and Technology that has the same molecular mass of 303 as the cocaine compound,” he said.
The court also noted that Dinsmare “conceded that he was rushed to give his testimony without having had the benefit of consultation with Machimane.
“He conceded that the reference samples used by Sgt Machimane to analyse the exhibit substances were in accordance with international best practices. He conceded that Sgt Machimane did find cocaine and methenamine in the exhibits.
“I reject the appellant’s contention that the use of the phrase ‘ag shame’ by the State counsel during the cross-examination of Dr Dinsmare was so inappropriate to such an extent that it undermined the integrity of the proceedings.
“A proper reading of the record reveals that the prosecutor merely used the comment to lambast Dr Dinsmare’s stratagem of shifting blame for not having prepared for trial,” Judge Nhlangulela said.
He added that Nabolisa opted not to cross-examine Machimane and chose not to testify in his trial, despite having legal representation. Nabolisa’s appeal was dismissed, meaning he will begin serving his 20-year sentence this year. The decision was agreed to by Judge Dumisani Zondi and Acting Judge of Appeal Fikile Mokgohloa.
Nabolisa has one legal avenue left. He could appeal the SCA decision by approaching the Constitutional Court.
@Daily Maverick