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.

- SAPA