S v Bogaards (864/2010) [2011] ZASCA 196; [2012] 1 All SA 376 (SCA) (21 November 2011)

S v Bogaards (864/2010) [2011] ZASCA 196; [2012] 1 All SA 376 (SCA) (21 November 2011)

The Supreme Court of Appeal held that the appellant could not be convicted under sections 11 and 12 of the Terrorism Act because the offences committed by the escapees occurred before the commencement of that Act and were subject to prosecution under the Internal Security Act, as mandated by section 27 of the Terrorism Act. The presumption against retrospective application of criminal statutes was not rebutted. However, the appellant's conduct in harbouring and concealing the escapees constituted an offence under section 115(e) of the Correctional Services Act, as the escapees were lawfully detained as prisoners at the time of their escape. The court found that the prosecution was...

Citation
[2011] ZASCA 196
Parties
Appellant: Jacobus Bogaards; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 November 2011
Case Number
864/2010
Procedural Posture
Criminal Appeal / Final Appellate Judgment
Outcome
The appeal succeeds in part. The appellant's convictions and sentences under the Terrorism Act are set aside. The appellant is found guilty on the alternative count of contravening section 115(e) of the Correctional Services Act and sentenced to five years' imprisonment.
Judges
Mthiyane, Maya, Mhlantla, Leach, Seriti
Legal Topics
Harbouring Escaped Prisoners, Correctional Services Act, Retrospective Application of Statutes, Terrorism Act Interpretation, Fair Trial Rights
Criminal Law Harbouring Escaped Prisoners Correctional Services Act Retrospective Application of Statutes Terrorism Act Interpretation Fair Trial Rights

Case Brief

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Parties

Jacobus Bogaards

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether the appellant's conduct constituted offences under sections 11 and 12 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004.
  2. 2 Whether the appellant could be convicted under section 115(e) of the Correctional Services Act 111 of 1998 for harbouring escaped prisoners.
  3. 3 Whether the prosecution was lawfully instituted with the required written authority.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant could not be convicted under sections 11 and 12 of the Terrorism Act because the offences committed by the escapees occurred before the commencement of that Act and were subject to prosecution under the Internal Security Act, as mandated by section 27 of the Terrorism Act. The presumption against retrospective application of criminal statutes was not rebutted. However, the appellant's conduct in harbouring and concealing the escapees constituted an offence under section 115(e) of the Correctional Services Act, as the escapees were lawfully detained as prisoners at the time of their escape. The court found that the prosecution was...

Court Disposition

The appeal succeeds in part. The appellant's convictions and sentences under the Terrorism Act are set aside. The appellant is found guilty on the alternative count of contravening section 115(e) of the Correctional Services Act and sentenced to five years' imprisonment.

Orders

  • The appeal succeeds to the extent that the appellant’s convictions on the two main counts and the sentences are set aside.
  • The order of the high court is set aside and replaced with: 'The accused is found guilty on the alternative count of contravening section 115(e) of the Correctional Services Act 111 of 1998 and sentenced to undergo five years imprisonment.'