S v Bogaards

• Jurisdiction: South Africa
• Judge: Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ
• Judgment Date: 28 September 2012
• Citation: 2013 (1) SACR 1 (CC)
• Docket Number: CCT120/11 [2012] ZACC 23
• Hearing Date: 03 May 2012
• Counsel: GC Muller SC for the appellant. AG Janse van Rensburg for the state.
• Court: Constitutional Court

Khampepe J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J, B and Van der Westhuizen J concurring):

[1] This is an application for leave to appeal against a decision of the Supreme Court of Appeal. [1] The applicant was convicted and sentenced to an effective three years' imprisonment under the Protection of Constitutional Democracy against Terrorist and Related Activities Act C (Terrorism Act) [2] in the Modimolle regional magistrates' court (trial court). The conviction and sentence were confirmed by the North Gauteng High Court, Pretoria (High Court). The Supreme Court of Appeal set aside the conviction and sentence under the Terrorism Act and instead convicted the applicant on the alternative charge, under the D Correctional Services Act (CSA), [3] and imposed a heavier sentence of five years' imprisonment. This case raises important questions about the proper interpretation of the CSA, the right to a fair trial in terms of s 35(3) of the Constitution, and the procedure that should be adopted by appellate courts when imposing sentences heavier than those imposed by E trial courts.

Background

[2] During 2002 a number of people — including Mr Herman van Rooyen (Mr Van Rooyen) and Mr Jan Rudolph Gouws (Mr Gouws) (the escapees) — were arrested on several charges. These charges included F terrorism, murder and sabotage under s 54(1) of the Internal Security Act. [4] They were tried in what became known as the 'Boeremag trial'. During the course of the trial the escapees were detained at Central Prison, Pretoria.

[3] On 3 May 2006 the trial adjourned at 12h45, at which time the G escapees were present in the courtroom. However, when the trial resumed at 14h00, it was discovered that they were missing and, despite a search of the court building and the setting-up of roadblocks, they could not be found.

[4] A countrywide search was conducted. Media statements were issued, H photographs of the escapees were released to the media, a helpline was set up, Interpol was contacted for assistance, and the escapees' bank accounts were monitored.

[5] The applicant and his wife live on a farm in the Modimolle area. I On 22 October 2006 police officers searched their property for the

Khampepe J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J, and Van der Westhuizen J concurring)

escapees. Despite conducting a thorough search of the house and A surrounding buildings, the police could neither find them nor detect any trace of their presence. Before departing, the police warned the applicant that he should not allow the escapees to stay on his farm and the applicant denied any knowledge of them.

[6] On 13 January 2007 the police searched the applicant's farm. They B found a number of items that indicated that the escapees had been present on the farm, including a motorbike registered to Mr Van Rooyen, and a tent site, 500 metres from the farmhouse, containing clothes, a firearm and other equipment belonging to the escapees. The applicant and his wife were arrested. [5] C

[7] On 12 July 2007 the applicant and his wife appeared in the trial court. They were charged with contravening ss 11 (count 1) and 12(1)(b) (count 2) of the Terrorism Act. [6] In the alternative, they D

Khampepe J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J, and Van der Westhuizen J concurring)

A were charged with contravening s 115(e) of the CSA. [7]

[8] The trial court convicted the applicant and his wife on counts 1 and 2. On count 1 the applicant was sentenced to five years' imprisonment, two years of which were suspended on certain conditions. On B count 2 the applicant was sentenced to one year's imprisonment, which was ordered to run concurrently with the sentence imposed in respect of count 1. [8] In other words, the applicant was sentenced to an effective custodial sentence of three years.

[9] On appeal, the high court set aside the conviction and sentence of the C applicant's wife, but dismissed the applicant's appeal and confirmed the conviction and sentence imposed by the trial court. [9] Aggrieved by this decision, the applicant applied for, and was granted, leave to appeal to the Supreme Court of Appeal. The state did not cross-appeal against the sentence.

D [10] The Supreme Court of Appeal handed down four judgments. Seriti JA would have dismissed the appeal in its entirety. The remainder of the court, in separate judgments by Maya JA, Leach JA and Mthiyane JA, upheld the appeal against the conviction and sentence under the Terrorism Act because they found that the Terrorism Act E could not be deemed to operate retrospectively. [10] However, they disagreed on whether the applicant could be convicted on the alternative charge, under the CSA. Leach JA held that he could not and would have upheld the appeal in its entirety, acquitting the applicant of all charges. The majority, Mthiyane JA, Maya JA and Mhlantla JA, convicted the F applicant, instead, under the alternative charge of contravening the CSA, in two separate judgments: one by Maya JA, concurred in by Mhlantla JA, and the other by Mthiyane JA.

Khampepe J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J, and Van der Westhuizen J concurring)

[11] The debate on whether the applicant could be convicted under the A CSA revolved around whether he was a prisoner who had escaped from a prison as defined in the CSA. [11] All the judges, except for Seriti JA, rejected the applicant's argument that the escapees could not be considered 'prisoners' under the CSA because they were unlawfully detained by virtue of the warrants for their detention being invalid. They B agreed that the lawfulness of the detention flowed from the court order, rather than the warrants.

[12] There was, however, disagreement over whether the escapees could otherwise be considered 'prisoners' under the CSA, due to the uncertainty regarding how the escapees fled. It was held that a person's C detention is lawful by virtue of a court order, and the warrants, in this context, were no more than an administrative means of proving to the correctional services authorities that the person they are asked to receive is lawfully in custody. [12]

[13] Maya JA, in whose judgment Mhlantla JA concurred, held further, D unlike Leach JA, that the uncertainty regarding how the escapees fled was not fatal to the state's case. She found that the escapees could either have escaped (i) from the detention cells or (ii) between the courtroom and the detention cells. In her analysis, under either of these scenarios, the escapees remained 'prisoners' who had escaped from a 'prison' as E defined in the CSA. [13] The ordinary meaning of 'prison' in the Act is expansive and would necessarily include detention cells within a court building which would mean that the escapees were 'prisoners' under scenario (i). [14] She found, further, that the portion of the definition of 'prisoner' which referred to 'any person . . . who is being transferred in custody' would necessarily cover scenario (ii). She accordingly held that the applicant was guilty under the alternative charge. [15] F

[14] Mthiyane JA concurred in the order of the majority, but found that the sole issue for determination on appeal was whether the warrants, under which the escapees were held at the time of the escape, were G

Khampepe J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J, and Van der Westhuizen J concurring)

A invalid. He held that the issue on which Maya and Leach JJA disagreed, whether or not the escapees were 'prisoners' under the CSA at the time of their escape, was never raised by either of the parties and was not the basis on which the case was conducted at the trial. [16] The state may have conducted its case differently had it been alerted to this issue, earlier and B an appellate court should not therefore have proceeded on this basis because it may have resulted in unfairness to one side.

[15] Leach JA held that the state had failed to prove that the escapees were 'prisoners' who had escaped from a 'prison' and therefore found that the applicant could not be convicted on the alternative charge under C the CSA. The offence under s 115(e) of the CSA, he reasoned, applies only to the harbouring of 'prisoners' who under that Act, are (i) persons in custody (ii) who are 'detained . . . in any prison or who is [are] being transferred in custody or is [are] en route from one prison to another prison'. While the escapees were persons in custody, the state had failed D to prove that they satisfied the second of these requirements. Because the escapees had absconded from court, the state had to fall back on the provision in the definition of 'prison', that, for the purposes of s 115, every place used as a police cell or lock-up is to be regarded as a prison. The state had not shown that the escape had been effected from a cell or a lock-up. Leach JA, further, read the 'transferred in custody' and 'en E route' requirements as both being qualified by the 'from one prison to another prison' clause. The state had not shown that the escapees were on their way from one prison to another prison while in court, or on their way to their cells, as the court is, in his understanding, clearly not a prison. [17]

F [16] The majority took several factors into account in considering an appropriate sentence, including: the applicant's personal circumstances; the gravity of the transgressions; the applicant's defiance of police warnings not to provide the escapees with shelter; the resources expended in the search for the escapees; and the applicant's lack of G remorse. The court found that 'a substantial custodial sentence [was] the only appropriate punishment' and imposed a five-year prison term. [18]

Leave to appeal

[17] Before I can address the substantive issues, I must first determine H whether leave to appeal...