S v Bogaards

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 1 (CC)

S v Bogaards
2013 (1) SACR 1 (CC)

2013 (1) SACR p1

Citation	2013 (1) SACR 1 (CC)
Case No	CCT120/11; [2012] ZACC 23
Court	Constitutional Court
Judge	Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ
Heard	May 3, 2012
Judgment	September 28, 2012
Counsel	GC Muller SC for the appellant.; AG Janse van Rensburg for the state.

Flynote : Sleutelwoorde

Prison offences — Prisoner — Meaning of under Correctional Services Act 111 of 1998 — Defective warrant of detention — Warrant serves important protective purpose, but it is court order that provides legal basis for detention, not warrant, and defective warrant not rendering detention C unlawful.

Sentence — Increase of on appeal — Notice of proposed increase — Right to fair trial and right to appeal necessitating that rule of practice be elevated to legal requirement — Principle applicable even where increase in sentence effected by imposing higher sentence on substituted conviction. D

Headnote : Kopnota

A warrant of detention serves an important protective purpose, in that it guards against unlawful detention. However, it is the court order, not the warrant that is the legal basis for a person's detention, and it cannot be that, where the warrant is defective, detention necessarily becomes unlawful. (Paragraph [37] at 13b.) E

At common law there is today no formal requirement for an appeal court to give an accused person notice where that court is considering an increased sentence on appeal. This lack of any formal notice requirement falls short of what is required in the constitutional era. Given the importance of the notice practice in giving effect to the right to a fair trial, and in particular the F right of appeal in s 35(3)(o) of the Constitution, the court is obliged to develop the common law and elevate the notice practice to a requirement. (Paragraph [45] at 15g–16a.)

The notification practice ensures substantive fairness in two ways. First, by facilitating the informed exercise of the right of appeal and, second, by ensuring that the requirements of natural justice, more specifically, the audi alteram partem principle, are observed. (Paragraph [59] at 21d.) G

2013 (1) SACR p2

A The principle applies also where the appellate court had not increased the applicant's sentence in the technical legal sense in which an increase was generally understood, but it nevertheless effected an increase in sentence in substance by imposing a higher sentence upon conviction of another offence. (Paragraph [74] at 27a.)

If the court forms a prima facie view before the hearing, that it is considering an B increase in sentence, for instance, while reading the record, it should put the accused person on notice prior to the hearing. If the court forms this opinion during the hearing, then it must formally inform the accused person that it is considering an increase and give the accused person sufficient time, subsequent to the hearing, to make written submissions on this issue. Finally, even if the court is contemplating an increase after the hearing it must formally request the parties to make submissions on this C point before making its final decision. (Paragraph [79] at 28h–29a.)

Cases cited

Southern Africa

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658; [1996] ZACC 10): dictum in para [65] compared D

Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788; [1996] ZACC 25): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): dictum in para [33] applied E

Klein NO and Another v Minister of Trade and Industry and Another 2007 (1) SA 218 (T): referred to

Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR 435 (CC) (2007 (5) SA 30; 2007 (8) BCLR 827; [2007] ZACC 9): dicta in paras [49] – [51] and [56] – [57] applied

Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47 (CC) (2006 (5) BCLR 622; [2006] ZACC 2): referred to F

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): dictum in para [44] applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) (1999 (7) BCLR 725; [1999] ZACC 9): dictum in para [28] applied G

R v Abdullah 1956 (2) SA 295 (A): referred to

R v Grundlingh 1955 (2) SA 269 (A): referred to

R v Jurgens 1953 (2) SA 383 (T): referred to

R v Mkwanazi and Others 1948 (4) SA 686 (A): referred to H

R v Solomons 1959 (2) SA 352 (A): applied

R v Swanepoel 1945 AD 444: referred to

S v Anderson 1964 (3) SA 494 (A): dicta at 495C – H applied

S v Andhee 1996 (1) SACR 419 (A): applied

S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620; [2004] ZACC 13): applied I

S v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36; [2000] ZACC 25): applied

S v Bogaards (WCHC, case No A 531/09): overturned on appeal

S v Bogaards [2012] 1 All SA 376 (SCA) ([2011] ZASCA 196): overturned on appeal

S v Bolus and Another 1966 (4) SA 575 (A): referred to J

2013 (1) SACR p3

S v Du Toit 1979 (3) SA 846 (A): dicta at 855A – E compared A

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252; [2000] ZACC 16): dictum in para [11] applied

S v E 1979 (3) SA 973 (A): referred to

S v Fazzie and Others 1964 (4) SA 673 (A): referred to B

S v Ivanisevic and Another 1967 (4) SA 572 (A): referred to

S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): applied

S v Kirsten 1988 (1) SA 415 (A): compared

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373): referred to

S v M (1) 1990 (1) SACR 451 (N): discussed C

S v Malindi and Others 1990 (1) SA 962 (A): referred to

S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793; [1995] ZACC 4): referred to

S v Moodie 1961 (4) SA 752 (A): referred to

S v Mthembu 2012 (1) SACR 517 (SCA): referred to

S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): referred to D

S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343): referred to

S v Sadler 2000 (1) SACR 331 (SCA) ([2000] 2 All SA 121): referred to

S v Salzwedel and Others 1999 (2) SACR 586 (SCA) (2000 (1) SA 786; [2000] 1 All SA 229): dictum in para [10] applied E

S v Shaik and Others 2008 (1) SACR 1 (CC) (2008 (2) SA 208; 2007 (12) BCLR 1360; [2007] ZACC 19): referred to

S v Sonday and Another 1995 (1) SA 497 (C): dictum at 503B applied

S v Whitehead 1970 (4) SA 424 (A): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401; [1995] ZACC 1): referred to F

Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) (1998 (2) SA 38; 1997 (12) BCLR 1675; [1997] ZACC 18): referred to.

Australia

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (65 A Crim R 209): discussed G

RH McL v The Queen [2000] HCA 46 ((2000) 203 CLR 452; (2000) 74 ALJR 1319; (2000) 21 Leg Rep C1): followed.

England

Oliver v The Queen [2007] UKPC 9: followed. H

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 35(3)(o): see Juta's Statutes of South Africa 2011/12 vol 5 at 1-30. I

Case Information

Appeal from a decision in the Supreme Court of Appeal (Mthiyane JA, Maya JA, Mhlantla JA, Leach JA and Seriti JA). The facts appear from the judgment of Khampepe J.

GC Muller SC for the appellant.

AG Janse van Rensburg for the state. J

2013 (1) SACR p4

Cur adv vult. A

Postea (September 28).

Judgment

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...