Jacobus Bogaards v The State

During 2002, Mr Herman Van Rooyen and Mr Jan Rudolph Gouws were arrested on charges including terrorism, murder and sabotage, and were tried in the "Boeremag trial". On 3 May 2006, they escaped while attending court proceedings. On 13 January 2007, police searched the applicant's farm and found evidence that the escapees had been on the property, including Van Rooyen's motorbike and a tent with belongings. The applicant and his wife were arrested. They were charged with contravening sections 11 and 12(1)(b) of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act (Terrorism Act), and alternatively with contravening section 115(e) of the Correctional Services Act (CSA) by harbouring escaped prisoners. The Regional Magistrates' Court convicted them on counts 1 and 2 under the Terrorism Act, sentencing the applicant to an effective 3 years' imprisonment. The High Court dismissed the applicant's appeal but set aside his wife's conviction. The Supreme Court of Appeal set aside the convictions under the Terrorism Act (which could not operate retrospectively) and instead convicted the applicant on the alternative charge under the CSA, imposing a heavier sentence of 5 years' imprisonment without giving prior notice that it was considering increasing the sentence.

• Whether escapees from a court building who were detained under allegedly invalid warrants could be considered 'prisoners' under the Correctional Services Act
• Whether the validity of detention warrants is necessary for a person to be considered a 'prisoner' under the CSA
• Whether the definition of 'prisoner' in the CSA includes persons in or en route to or from court holding cells
• Whether the Supreme Court of Appeal's failure to notify the appellant that it was considering imposing a higher sentence upon conviction of the alternative charge infringed his right to a fair trial under section 35(3) of the Constitution
• Whether the common law practice of giving notice when an appellate court considers increasing sentence should be elevated to a formal requirement
• Whether the common law should be developed to require notice to accused persons when appellate courts contemplate imposing higher sentences

Leave to appeal granted. Appeal against conviction under section 115(e) of the Correctional Services Act dismissed. Appeal against the 5-year sentence imposed by the Supreme Court of Appeal upheld. Case remitted to the Modimolle Regional Magistrates' Court for imposition of an appropriate sentence in respect of the conviction under section 115(e) of the Correctional Services Act.

When an appellate court contemplates imposing a higher sentence than that imposed by the trial court (whether by way of increasing sentence on the same conviction or imposing a higher sentence upon conviction of a substituted/alternative offence), the court must give the accused person prior notice of this possibility. This notice requirement is necessary to give effect to the right to a fair trial under section 35(3) of the Constitution, specifically the right of appeal under section 35(3)(o). The notice requirement serves two purposes: (1) facilitating the informed exercise of the right of appeal by allowing the accused to choose whether to continue the appeal, seek withdrawal, or make specific submissions; and (2) ensuring natural justice by affording the accused a meaningful opportunity to make pointed representations on why the sentence should not be increased. Failure to give such notice constitutes an irregularity that, depending on the circumstances, may result in a failure of justice rendering the proceedings unfair. The lawfulness of detention of prisoners depends on court orders, not detention warrants, which serve merely administrative functions to prove lawful custody to correctional authorities. The definition of 'prisoner' in the Correctional Services Act includes persons detained in custody in any prison (including court detention cells) or being transferred in custody.

The Court provided guidance on how appellate courts should give notice: (1) If the court forms a prima facie view before the hearing that it is considering an increase in sentence, it should give notice prior to the hearing. (2) If the court forms this opinion during the hearing, it must formally inform the accused and give sufficient time after the hearing to make written submissions. (3) If the court contemplates an increase after the hearing, it must formally request the parties to make submissions before making a final decision. The Court noted that requiring notice does not fetter the appellate court's discretion to increase sentence under section 22(b) of the Supreme Court Act and section 322 of the Criminal Procedure Act, but merely sets out the correct procedure. After notice is given, an accused person is barred from withdrawing an appeal without leave of the court, which balances the accused's rights with the court's duty to ensure appropriate sentences. The Court emphasized that sentencing is ordinarily within the discretion of the trial court, which is best placed to determine appropriate sentences, and appellate courts have circumscribed powers to interfere. The Court clarified that this judgment should not be construed as pitting common law against the Constitution, as there is only one system of law over which the Constitution is supreme.

This case is significant for: (1) Developing the common law to require appellate courts to give notice to accused persons when contemplating imposing higher sentences than those imposed by trial courts, whether mero motu or upon conviction of substituted offences. (2) Clarifying that the constitutional right to a fair trial under section 35(3) embraces substantive fairness and is not limited to the enumerated rights. (3) Establishing procedural guidance for when and how appellate courts should give notice of contemplated sentence increases. (4) Affirming that lawfulness of detention depends on court orders, not detention warrants, which serve only administrative purposes. (5) Interpreting the definition of 'prisoner' in the Correctional Services Act broadly to include persons in court cells or being transferred to/from court. (6) Emphasizing that the common law must be developed to align with constitutional rights and that there is not a separate system of common law alongside the Constitution. (7) Balancing the accused's right to notice with the court's power to impose appropriate sentences and the administration of justice. (8) Formalizing the corollary that after notice is given, accused persons may not withdraw appeals without leave of the court.