Court of Appeal judgments for first session of the year |01 September 2020

The Court of Appeal, on Friday August 21 delivered a series of judgments in civil and criminal appeal cases, marking the end of the court’s first session for the year.

Cases were heard by the President of the Court of Appeal Anthony Fernando, Justice Mathilda Twomey, Justice Fiona Robinson and Justice Lillian Tibatemwa-Ekirikubinza, some of which were heard through video conferencing as Justice Tibatemwa-Ekirikubinza was unable to travel from Uganda, on account of travel restrictions in place.

The majority of appeals were against sentences in criminal cases, especially drug-related charges. While the court delivered a landmark ruling in the case of Collin and Gina Forte, other appellants’ appeals were mostly dismissed.

Esparon v R

The appellant in this case appealed against the sentence imposed on him on his pleading guilty to the charge of possession of 29.3 grammes of cannabis resin and a substance weighing 31.8 grammes of heroin with a purity of 49% which had a total heroin content of 15.5 grammes.

He had been sentenced to a term of three years’ imprisonment and a fine of R25,000 and in default of payment of the fine had been ordered to serve a term of six months’ imprisonment which would be consecutive to the term of imprisonment imposed on him. The appellant based his appeal on the grounds that the sentence is harsh.

Having considered the facts of the case, President of the Court of Appeal Anthony Fernando said he saw no grounds to reduce the three-year sentence on account that there is no disparity between the sentence and sentences imposed in other similar cases. The court however, ruled to partially allow the appeal by removing the fine imposed on the appellant, on the grounds that it is harsh, and the difficulty the appellant faces in “finding that amount of money during the period of his imprisonment to escape the default sentence from coming into operation at the expiry of his three-year period of imprisonment”.

Confait and Moustache v R

The appellants in this matter appealed against the sentences imposed on September 15, 2018 by the Supreme Court on their pleading guilty to the two separate charges that were levelled against them, namely the charge of trafficking heroin having a total weight of 19.3 grammes with a pure heroin content of 12.35 grammes as against the first appellant, and as against the second appellant, obstruction of justice, namely, obstructing Anti-Narcotics Bureau (ANB) officers in the exercise of their powers and functions under the Misuse of Drugs Act.

The first appellant had been sentenced to a period of four years’ imprisonment with the time he had spent on remand deducted and the second appellant had been sentenced to a period of four months imprisonment suspended for a year and to pay a fine of R25,000, and, in default to four months’ imprisonment.

With regards to the second appellant, Moustache, the court quashed the sentence in relation to the payment of the fine, as “the imposition of a fine is not warranted”, president Fernando said, explaining that all the appellant had done was tried to shut the door of her bedroom in which her husband was sleeping when a stranger tried to force open the door, on account that there was no evidence to indicate that she knew the ANB officer or that he had made his identity known when he turned up to search the room in which they were staying and in which the drugs were found.

The first appellant’s appeal against his four-year imprisonment sentence was dismissed, on grounds that it is even less than the recommended sentence for Class A drug-trafficking related charges.

Osama and Hifa Casime v R

Justice Lillian Tibatemwa-Ekirikubinza ruled to uphold both the sentences of Osama and Hifa Casime, after they appealed against the sentences for drug-related charges.

The first appellant, Osama Casime, had been sentenced to 20 years’ imprisonment in total, on two counts, namely conspiracy to import a controlled drug and importation of a controlled drug weighing 141.2 grammes containing pure heroin (diamorphine) of 69.19 grammes contrary to Section 5 of the Misuse of Drugs Act 2016.

Second appellant Hifa Casime had been sentenced to a total of 10 years’ imprisonment, on two counts, conspiracy to import a controlled drug, and aiding and abetting.

Both had appealed against the sentences on numerous grounds centred on whether the sentences are manifestly harsh and whether their sentences are subject to the benefit of remission.

Court based its decision on case law, the provisions of the Misuse of Drugs Act and the facts of the case.

Nurdin Kamba V R

Twenty-nine-year-old Tanzanian national Nurdin Kamba’s appeal on the six-year imprisonment sentence imposed on him for the importation of 627.45 grammes of a controlled drug, namely cocaine which had an average cocaine content of 317.49 grammes, was dismissed by the court.

The appellant had been sentenced on January 17, 2020 following his arrival and subsequent arrest on November 10, 2019, at about 9.30pm, when he arrived in Seychelles onboard the Air Seychelles flight HM060, from Johannesburg, South Africa. The appellant, who swallowed the controlled drugs, carried them to Seychelles, where he intended to excrete them after his arrival and after that arrange for their collection in Seychelles. He excreted 38 ″cylindrical packets made up of clear tapes″, which were seized by the Anti-Narcotics Bureau (ANB) of the Police Force of Seychelles.

Justice Fiona Robinson said she saw no reason to reduce the sentence which is already below the recommended sentence for such crimes. The appellant, as has been ruled by the trial judge, is not entitled to remission due to the aggravated circumstances of the case.

Suki v R

Appellant Jakari Suki was convicted and sentenced by the Supreme Court to 15 years’ imprisonment on Count 1 for importation of heroin and eight years on Count 2, for importation of cocaine. The said sentences were to be served concurrently without remission.

Suki was found by ANB officers to be carrying in his body 76 cylindrical capsules containing heroin to the capacity of 523.7 grammes and cocaine to the capacity of 151.1 grammes. He denied carrying any forbidden substances or drugs until a scan confirmed that he had ingested the capsules containing prohibited drugs. He has also informed the officers that he was carrying the drugs for someone and agreed to assist the officers to conduct a controlled delivery of the drugs to the person who unfortunately did not turn up.

Suki appealed on numerous grounds including harsh sentence, and that ANB failed to carry out the controlled delivery properly and he therefore should not be punished as he was cooperative.

His appeal was however dismissed and the sentence upheld.

Adrienne and Servina v R

The appeal of both appellants was dismissed in this matter, and the 20-year imprisonment sentence maintained.

The appellants appealed against the decision of the Review Tribunal that reviewed the outstanding portion of the sentences imposed on them on their conviction by the Supreme Court for trafficking and conspiracy to traffic drugs. They had initially been sentenced to life imprisonment.

The Review Tribunal had been established under section 51 of the Misuse of Drugs Act 5 of 2016, which is a transitional provision. It must be noted that the matter has been before the Court of Appeal in 2017 where it ruled that there was no basis for interfering with the sentence of life imprisonment, but the decision was later quashed by the Review Tribunal, who imposed the 20-year sentences.

Justice Fernando said he is of the view that the Review Tribunal erred and acted upon a wrong principle in reviewing a sentence confirmed by the Court of Appeal and reducing the period of imprisonment to 20 years. However, taking into consideration the fact that the sentence after review had been reduced to 20 years’ imprisonment by the Review Tribunal giving hope to the appellants of a reduction in their sentences, that it would not be fair to maintain the sentence of life imprisonment.

Albert and Ano v Vielle

The appellants wanted the court to reverse the decision in a noise pollution case and which they were sentenced to pay a sum of R65,000 in total for damages suffered to the respondent. The court had also ordered a permanent injunction against the appellants prohibiting them from playing loud amplified music unless authorised by the court or the Commissioner of Police for a special occasion.

The ground of appeal was dismissed and the relief granted by the learned trial judge stands.

Laura Pillay