Show simple item record 2017-04-08T17:14:50Z 2017-04-08T17:14:50Z 2012-02-07 en
dc.identifier.citation [2012] ZACC 23
dc.identifier.citation 2012 (12) BCLR 1261 (CC)
dc.identifier.citation 2013 (1) SACR 1 (CC)
dc.identifier.citation 2013 (1) SACR 1 (CC)
dc.title S v Bogaards en
dc.title.alternative CCT120/11 en
dc.identifier.casenumber CCT120/11 en
dc.contributor.judge Khampepe J Majority judgment
dc.contributor.judge Jafta J and Nkabinde J dissenting judgment 28 September 2012
dc.concourt.synopsis Application for leave to appeal against a decision of the Supreme Court of Appeal that increased a sentence without prior notice or warning to the applicant. The Supreme Court of Appeal had changed the applicant’ s conviction under the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 to a conviction on the alternative charge under the Correctional Services Act 111 of 1998 (CSA). In the place of the sentence of three years, the Supreme Court of Appeal imposed a sentence of five years’ imprisonment. The applicant challenged his conviction under section 115(e) of the CSA on the basis that the escapees he harboured were not “prisoners” as required by the CSA since they were not incarcerated in terms of a valid warrant of detention. The Court held that it is the court order, not the warrant, which is the legal basis for a person’s detention. Therefore the escapees were “prisoners” under the CSA. Regarding sentence, the majority held that the Supreme Court of Appeal erred in imposing an increased custodial sentence without giving the applicant notice that it was considering doing so. The Court held that the lack of any formal notice requirement at common law fell short of what was required in the constitutional era and constituted an infringement of the right of appeal under section 35(3)(o) of the Constitution. The Court therefore developed the common law and elevated the informal notice practice to a requirement that gives proper effect to the right of appeal. The Court thus upheld the appeal against the sentence the Supreme Court of Appeal imposed, and remitted the matter to the trial court for it to impose an appropriate sentence. The minority would have dismissed the appeal and held that that there was no increase in sentence (because the applicant was convicted on a different charge, on which the impugned sentence was competent), or breach of the applicant’s right to a fair trial. Therefore, the SCA was not obliged to give notice. The minority held, further, that this was not a case in which the common law ought to be developed. Majority: Khampepe J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J and Van der Westhuizen J concurring). Dissent: Jafta and Nkabinde JJ (Zondo AJ concurring).
dc.concourt.casehistory Application for leave to appeal against a decision of the SCA: Bogaards v S [2011] ZASCA 196; [2012] 1 All SA 376 (SCA). See also earlier Pretoria High Court judgment: Bogaards & Another v S [2010] Case No A 531/09, 11 February 2010 (unreported)

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