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Rare to up sentence on appeal - ConCourt

2012-05-03 19:12

Johannesburg - It was extremely rare for someone whose conviction and sentence was set aside on appeal, to be given a higher sentence on an alternate charge, the Constitutional Court in Johannesburg heard on Thursday.

"It is very rare," said advocate Gerrit Muller, representing Jacobus Bogaards, who was found guilty of harbouring two "Boeremag" trialists.

In November, Bogaards successfully appealed against an in effect three-year sentence (suspended for five years) imposed on him by the Modimolle Regional Court for contravening the Terrorism Act.

The Supreme Court of Appeal set aside the conviction, but instead convicted him on an alternative charge of harbouring or concealing escaped inmates and imposed a sentence of five years' imprisonment.

The court heard that the State had not asked that the sentence be increased and that Bogaards's legal team was not informed that this might happen.

Bogaards was convicted of harbouring or concealing Rudi Gouws and Herman van Rooyen, and not reporting their escape.

They hid on his farm after escaping from custody while awaiting trial for a series of explosives-related offences.

Muller has challenged the validity of the custody of Gouws and Van Rooyen and whether they were in fact escapees.

He submitted that they were kept in custody by the department of correctional services on a warrant that was legally improper.

State prosecutor advocate Dries van Rensburg conceded that there were "technical" difficulties with the warrant, but said they were still in lawful custody.

"It is so that there were some technical deficiencies in the warrants," he said.

"And it is most certainly not procedure for the police to prepare pro forma warrants where the signatures were photostatted.

"But a warrant just conveys a message of the court, or the contents of a valid court order," he said.

They were transported to court and back as the warrant instructed.

The "deficiencies" could have been corrected at any time, but there was never a complaint about it, he said.

However, he did feel it was unfair that the sentence was increased by the court, and that Bogaards had not been informed that this might happen.

Judgment was reserved.

Comments
  • Jack - 2012-05-03 19:33

    I tell you this, these boeremag idiots make silkworms look clever. Really, really, a waste of good space, that could much better be occupied by a cardboard box.

      Ted - 2012-05-03 20:29

      Silkworms are actually clever, skillful and gifted. You could possibly have given a better comparison like cow dung.

  • Tumisang - 2012-05-03 19:50

    I have been saying the constitution should be amended to grant more power to politicians so they can make decisions, as it happens nowadays is that the government would make a decision only to be overturned by the courts, it would seem like the courts are the government, one of the founders of democracy Aristotle correctly points out that Even when laws have been written down, they ought not always to remain unaltered, the constitution should be amended to allow more power to the government away from the courts, they are suppose to be in power now they are powerless.

      Johann - 2012-05-03 20:00

      Tumisang, be careful what you wish for. If not for our constitution, your beloved ANC would have had us economically ranked below Zimbabwe already. There would have been a resource and basic needs (food/water/electricity) shortage beyond repair. The middle class that forms the economical backbone of this country would have vanished overseas faster than Zuma taking showers after his play-date evenings.

      Donny Doncaster - 2012-05-03 21:06

      Prof. Tumisang.. Don't quote theories you don't understand.. Now sit down before you hurt yourself.

      Dustin - 2012-05-04 09:36

      Tumisang, it is exactly the separation of power that makes a Democracy, a Democracy... Without the independence of the courts a Government is almost free to do as it pleases changing such a young constitution also makes no sense, it was written as a check and balance for governments and organizations to make sure that no one agency holds supreme power. IT is there for all our good, without these separations and the constitution we will become a Failed state.

  • frank.hubris - 2012-05-03 20:47

    I love the idea that the Judges of the Constitutional Court finds it necessary to do the job of the State Prosecutor. After all, the Separation of Powers is just a hindrance to service delivery! Just imagine, If judges could also charge the accused, they would only need to convince themselves that the accused are guilty! Why didn't anyone think of this earlier? Justice could be so efficient!

  • Fred - 2012-05-03 23:11

    This is one incident I would love the world to take note of. It seems that the world think SA is such a beautiful country where things like human rights are upheld and respected. This is one instance where SA has trampled on the human rights of its citizens. If these guys are guilty of what they are accused of they deserve the full face of the law, but to drag out their trial for more then 10 years is just preposterous. Not even the apartheid regime can be accused of such human rights infringements.

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