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

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 196
|

|

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

Links to summary

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 864/2010
In the matter between:
JACOBUS BOGAARDS
…..................................................................
Appellant
and
THE STATE
…...................................................................................
Respondent
Neutral citation:
Bogaards v The State
(864/10)
[2011] ZASCA 196
(21 November 2011)
Coram:
MTHIYANE, MAYA, MHLANTLA, LEACH, and
SERITI JJA
Heard:
24 August 2011
Delivered:
21 November 2011
Summary:
Criminal Law –
s 115(e)
of the
Correctional Services Act 111 of 1998
– whether State proved
that appellants harboured or concealed escaped prisoners.
ORDER
On appeal from:
North Gauteng High Court,
Pretoria (Murphy J and Dolamo AJ, sitting as court of appeal):
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 following:
‘
The accused is found guilty on
the alternative count of contravening
s 115(e)
of the
Correctional
Services Act 111 of 1998
and sentenced to undergo five years
imprisonment.’
___________________________________________________________
JUDGMENT
MAYA JA (MHLANTLA JA concurring):
[1] I have had the privilege of reading the judgments
prepared by my colleagues Leach and Seriti JJA in this matter.
Regrettably,
whilst I do agree with some of the reasoning and
findings they each advance, I am unable to agree with their
respective conclusions.
I share Seriti JA’s view that the
appeal should ultimately fail, but on a different basis. For the
reasons he gives, I agree
that the prosecution of Mr Bogaards and his
wife was lawful, that the trial was conducted fairly and that the
evidence adduced
by the State indeed established that Mr Bogaards
harboured and concealed the two ‘Boeremag’ trialists,
Messrs Gouws
and Van Rooyen, after their escape from custody and
further failed to report their presence on his farm to the police.
But I respectfully
part ways with his reasoning here and agree with
Leach JA that the State nonetheless failed to prove that such conduct
constituted
the offences envisaged in
ss 11
and
12
of the Protection
of Constitutional Democracy Against Terrorist and Related Activities
Act 33 of 2004 (the Terrorism Act). In my
view, the State established
Mr Bogaards’ guilt on the alternative charge of harbouring and
concealing escaped prisoners under
s 115(e) of the Correctional
Services Act 111 of 1998 (the
Correctional Services Act).
[2
] The material background facts are set out fully in
Seriti JA’s judgment and I need not repeat them. The main
question for
determination is whether Mr Bogaards may be convicted in
the circumstances of this case – where a party is charged under
the Terrorism Act for harbouring and concealing persons he knows or
ought reasonably to have known or suspected to have committed

offences in contravention of ss 11 and 12 of the Terrorism Act
alternatively
s 115(e)
of the
Correctional Services Act. Sections
11
and 12 provide:
‘
11 Offences relating to harbouring or
concealment of persons committing specified offences
Any person who harbours or conceals any person, whom he or she knows,
or ought reasonably to have known or suspected, to be a person
who
has committed a specified offence, as referred to in paragraph
(a)
of the definition of ‘specified offence’, or who is
likely to commit such an offence, is guilty of an offence.
Duty to report presence of person suspected of intending to commit
or having committed an offence and failure to so report
Any person who –
has reason to suspect that any other person intends to commit or has
committed an offence referred to in this Chapter; or
is aware of the presence at any place of any other person who is so
suspected of intending to commit or having committed such
an
offence,
must report as soon as reasonably possible such suspicion or
presence, as the case may be, or cause such suspicion or presence
to
be reported to any police official.
Any person who fails to comply with the provisions of subsection (1)
(a)
or
(b),
is guilty of an offence.’
In paragraph
(a)
of the definition of ‘specified offence’
the words are said to mean ‘the offence of terrorism referred
to in
section 2
, an offence associated or connected with terrorist
activities referred to in
section 3
, a Convention offence, or an
offence referred to in
section 13
or
14
’. Section 2 of the
Terrorism Act in turn renders any person who engages in a ‘terrorist
activity’ guilty of the
offence of terrorism. (The finely
detailed and wide ranging definition of
‘terrorist activity’ comprising numerous actions that
fall under the definition
is set out in paragraphs [56] and [85]
below.)
[3] The charge sheet did not specify the acts of
terrorism or terrorist activities which the State alleged that the
Bogaards knew
or ought to have known or suspected to have been
committed by the fugitives. Only during argument in the trial did the
State case
crystallise: that Mr Bogaards ought to have known that the
fugitives faced terrorism charges under the Internal Security Act 74

of 1982 (which was repealed in its entirety by the Terrorism Act) in
the ‘Boeremag’ case and, from that fact and their

subsequent escape from custody, must at the very least have suspected
that they were guilty of those offences.
[4] The contentions made on Mr
Bogaards’ behalf before us were, inter alia, that the elements
of the offences created by s
54(4)
1
of the Internal Security Act were
replaced by the practically identical provisions of ss 11 and 12 of
the Terrorism Act and that
the definition of ‘terrorist
activities’ contained in s 1 of the latter Act includes and
broadens that of ‘terrorism’
in the former Act. Bearing
in mind the Legislature’s express intention in both Acts to
criminalise deeds of terrorism and
terrorist activities and the
harbouring, concealing and assisting of such offenders, continued the
argument, it would be absurd
to interprete the Terrorism Act to
exclude from prosecution offenders who contravened its ss 11 and 12
in respect of crimes committed
under the Internal Security Act merely
because of the absence of an ‘expressed transitional provision
that regulates the
position’ in the Terrorism Act. (Mr
Bogaards’ counsel correctly conceded that ‘[n]otwithstanding
the extensive
transitional provisions [set out in s 27 of the
Terrorism Act] it is clear that the legislature did not explicitly
provide for
a set of facts where, like
in
casu
, the deed of
terrorism or terrorist activity was committed under Act 74 of 1982,
and the harbouring or concealment and/or failure
to report took place
after Act 33 of 2004 commenced’.) We were thus urged to
categorise the fugitives’ offences committed
under the Internal
Security Act, before the promulgation of the Terrorism Act and for
which they were on trial when they escaped,
under the banner of
‘specified offences’ referred to in s 11 of the Terrorism
Act as the court below seems to have
done.
[5] Section 27 of the Terrorism Act makes provision, in
subsec (1), for the repeal of the Internal Security Act and the
following
transitional arrangements:
‘
(2) All criminal proceedings which
immediately prior to the commencement of this Act were instituted in
terms of the provisions
of the Internal Security Act ... and ... have
not been concluded before the commencement of this Act, shall be
continued and concluded,
in all respects as if this Act had not been
passed.
An investigation, or prosecution or other legal proceedings, in
respect of conduct which would have constituted an offence under
the
Internal Security Act ... and which occurred after the commencement
of that Act, but before the commencement of this Act,
may be
conducted and continued as if this Act had not been passed.
Notwithstanding the repeal or amendment of any provision of any law
by this Act, such provision shall, for the purpose of the
disposal
of any criminal proceedings, investigation, prosecution or legal
proceedings contemplated in subsection (2) or (3),
remain in force
as if such provision had not been repealed or amended.’
[6] The sum of these provisions is that any pending
criminal proceedings, investigation, prosecution or other legal
proceedings
instituted in terms of the Internal Security Act would
continue to finality under its provisions, even after its repeal, as
if
the Terrorism Act had not been promulgated. Evidently, none of
these transitional provisions cater for Mr Bogaards’ situation

as the conduct for which he was charged and the subsequent criminal
proceedings against him occurred after the commencement of
the
Terrorism Act. The latter Act makes no express provision for a
situation such as the present; where the act of terrorism or

terrorist activity was committed during the operation of the Internal
Security Act and the harbouring and concealment of the offenders

occurred after its commencement.
[7] As Leach JA correctly points out,
there is a well established
rule
of construction that the operation of a statute is prospective, to
apply only after its enactment, unless the legislature clearly

expressed a contrary intention that the operation should be
retrospective, to apply prior to its enactment (see, for example,
Peterson
v Cuthbert Co Ltd
1945
AD 420
;
R
v Sillas
1959
(4) SA 305
(A);
Bellairs
v Hodnett & another
1978
(1) SA 1109 (A)
;
National
Director of Public Prosecutions v Carolus & others
2000
(1) SA 1127
(SCA);
Veldman
v Director of Public Prosecutions Witwatersrand Local Division
2007
(3) SA 210
(CC) paras 26 - 27). The presumption therefore is that
none of the provisions of the Terrorism Act may be applied
retrospectively
unless such intention appears expressly or by
necessary implication from its provisions.
[8] I am mindful that the Terrorism Act did not create
new offences as such in ss 11 and 12 in view of the provisions of s
54(4)
of the Internal Security Act (quoted above) which also
criminalised harbouring and concealing a person known or suspected to
have
committed acts of terrorism and failing to report such person’s
presence – the basis of the finding made by the court
below
(and relied upon by Mr Bogaards) that ‘Van Rooyen and Gouws
were charged with ... offences under the Internal Security
Act, which
are in terms of that Act defined as terrorism. It is therefore fair
to say that when [they] escaped from custody they
were then charged
with conduct equivalent to that contemplated in the definition of
terrorism or terrorist activities under the
[Terrorism Act]’.
However, the provisions of s 27 of the Terrorism Act present an
insurmountable difficulty for this view.
This is so because they
unequivocally provide for offences committed whilst the Internal
Security Act was in force to be dealt
with after its repeal as if the
Terrorism Act had not been passed, thus expressly excluding such
offences from the umbrella of
‘specified offences’ as
defined under the Terrorism Act. There is simply no room for the
modification of the Terrorism
Act to ‘fill the gap’
allegedly left by the Legislature in this statute that we were urged
by State counsel to execute,
by ruling that ‘acts of terrorism
as referred to in section 54 of Act 74 of 1982 is conduct equivalent
to conduct contemplated
in the definition of terrorist activities
under present legislation’.
[9]
There
is no ambiguity in the wording of ss 11 and 12 of the Terrorism Act.
The sections are concerned only with conduct constituting
‘a
specified offence’, according to its definition, committed or
likely to be committed after the commencement of that
Act on 20 May
2005. Therefore, a contravention of these sections arises only upon
the commission of an offence which fits such
definition (of a
‘specified offence). It was not in dispute that Mr Bogaards’
prosecution targeted the offences committed
by the fugitives before
their arrest towards the end of 2002. By no stretch of the
imagination can such offences be said to constitute
specified
offences under the Terrorism Act.
The
presumption against retrospectivity was not rebutted and it was not
proved that Mr Bogaards harboured or concealed a person
he knew or
ought reasonably to have known or suspected to have committed a
‘specified offence’ and thus contravened
the provisions
of s 11. The same reasoning necessarily applies equally to the charge
under s 12 of the Terrorism Act which was
based on Mr Bogaards’
failure to report the presence on his premises of persons suspected
of intending to commit or having
committed an offence of terrorism or
offence associated or connected with terrorist activities under the
Terrorism Act. He should
therefore not have been convicted for a
contravention of these provisions.
[10] But this is not
the end of the matter.
Mr
Bogaards was further charged, in the alternative to contravening the
provisions of s 11 of the Terrorism Act, with contravening
s 115(e)
read
with
s 1
of the
Correctional Services Act. Section
115(e) read (this
Act has since been amended as indicated in paragraph [100]):
‘
Any
person who ... harbours or conceals or assists in harbouring or
concealing an escaped prisoner, is guilty of an offence and
liable on
conviction to a fine or to imprisonment for a period not exceeding
ten years or to such imprisonment without the option
of a fine or
both.’
[11] Section 1 defined ‘prisoner’ to mean
‘any person, whether convicted or not, who is detained in
custody in
any prison or who is being transferred in custody or is en
route from one prison to another’. ‘Prison’ means
‘any place established under this Act as a place for the
reception, detention, confinement, training or treatment of persons

liable to detention in custody or detention in placement under
protective custody, and all land, outbuildings and premises adjacent

to any such place and used in connection therewith and all land,
branches, outstations, camps, buildings, premises or places to
which
any such persons have been sent for the purpose of imprisonment,
detention, protection, labour, treatment or otherwise, and
all
quarters of correctional officials used in connection with any such
prison, and for the purposes of section 115 and 117 of
this Act
includes every place used as a police cell or lock-up.’ (In
terms of s 77 of the amending Act, for the term ‘prisoner’

has been substituted ‘inmate’ and for ‘prison’,
‘correctional centre’.)
[12] As indicated in the judgment of Seriti JA, the
fugitives, who were held in custody at the Central Prison, Pretoria
under an
order of court which refused their application for bail in
previous proceedings, disappeared during the court’s lunch
adjournment
taken between 12h45 and 14h00 during their criminal
trial. It was discovered only at resumption of the proceedings after
the break
that they had stolen away. All efforts to find them were
fruitless until their capture at a Pretoria residential complex
several
months later. Precisely when and from which point of the
court building they launched their escape during the fateful lunch
break
is not clear from the record. The only evidence led by the
State from its witnesses was merely that the fugitives escaped during

the lunch adjournment and did not take their lunch which was served
in the detention cells.
[13] Mr Bogaards challenged the validity of the
fugitives’ detention warrant required by
s 6(1)
of the
Correctional Services Act for
their committal to a correctional
centre on the basis that it was signed by a court orderly and that
for that reason they were
not ‘prisoners’ as envisaged in
the
Correctional Services Act when
they escaped. Reliance for this
contention was placed on the judgment in
S v Motsasi
1998 (2)
SACR 35
(W). There, the court held that to be valid, a detention
warrant should be issued by a properly authorised official in the
form
of the presiding judge or the court registrar or a senior
official from the registrar’s office appointed in terms of s
34(1)
of the Supreme Court Act 59 of 1959.
[14] Mr Bogaards’ contention is premised on the
notion that the fugitives were being held under a warrant of
detention during
the court session and I will assume without deciding
that this is correct. The basis for the court’s view in
Motsasi
is not entirely clear. Whilst admittedly sound and standard practice
now, there is no such statutory requirement as the court itself

acknowledged and there does not appear to have been any policy making
provision for such requirement when the case was decided.
Mr
Bogaards’ counsel threw no further light on this issue as he
relied solely on the court’s reasoning. According to
the
undisputed evidence of the State witness, Inspector Carl Etsebet, the
established procedure relating to the issue of a detention
warrant at
the material time allowed court orderlies (who, incidentally, are the
very officials responsible for guarding prisoners
in the court
premises during court proceedings and manning the detention cells in
which such prisoners are held in between the
court sessions) to sign
such documents until a departmental Circular dated 5 October 2006,
after the escape, outlawed that practice.
In that event, the relevant
detention warrant would have been lawful and that puts paid to the
challenge to the applicability of
the provisions of
s 115(e)
of the
Correctional Services Act on
the basis of its defect.
[15] But, in my view, the result is the same even on the
assumption that the detention warrant was defective and unlawful for
the
following reasons. First, the detention of a convicted or
awaiting-trial person is lawful by virtue of a court order (see
Isaacs v Minister van Wet en Orde
1996 (1) SACR 314
(A) at
323g-h;
Minister of Justice and Constitutional Development &
another v Zealand
2007 (2) SACR 401
(SCA) paras 17 and 18). A
defect in a detention warrant, even one which renders it invalid,
cannot supersede the authority of the
relevant court order.
Therefore, the fugitives in this matter were held in lawful custody
not by virtue of a detention warrant
(which in the present context
amounts to no more than an administrative means of proving to the
correctional services authorities
that the person they are requested
to receive is lawfully in custody and may therefore be detained in
their facility) but by authority
of the court order refusing them
bail and remanding them in custody up to the time of their escape. It
is primarily that court
order authorising that they be kept in
custody pending their criminal trial, and not the detention warrant
issued under it for
their committal in a prison or correctional
facility for that purpose, that brought them within the definition of
‘prisoner’.
[16] They were remanded in custody in the detention cell
during the lunch break and were under police control. It matters not
whether
that control momentarily lapsed, as seems to have happened,
when they slipped away. In
S v Mtwazi ; S v
Ndlovu
1992 (1) SACR 367
(Tk) the Full Court
reviewed a matter in which the individual accused were convicted of
escaping from custody in breach of s 50(1)(a)
of the Transkeian
Prisons Act 6 of 1974 which bore definitions of the terms ‘prisoner’
and ‘prison’ that
are similar to those contained in the
Correctional Services Act. One
accused absconded after being given
permission by his police guard to go to a shop alone to buy tobacco.
The other was removed
from his cell to wash a police vehicle and
escaped during the absence of the constable who guarded him. In
confirming the convictions,
the court made comments which I find
apposite for present purposes. It said at 370h-371b:
‘
The principle that a prisoner escapes from
a state of confinement, irrespective of the
de
facto
physical control which is being
exercised over him at the time, finds further support in the
following extract from the judgment
... in
S
v Ncube
and another
1982 (4) SA 419
(ZS) at 412e, albeit that he was then dealing with an escape from
custody prior to incarceration:
“
Where
every vestige of control is not voluntarily abandoned, and when it
is, or ought to be, apparent to a person in lawful custody
that a
temporary relaxation of the extent of the control exercised over him
is not intended by his custodians to be an abandonment
of the lawful
custody established over him, he is not, in my view, free to take
advantage of the situation by decamping.”
A further reason for applying the abovementioned construction to the
section is that to apply the “control criterion”
would
lead to
absurd and farcical
situations. If the latter criterion were applied, it would then mean
that if a warder is incapacitated by natural
causes whilst escorting
a prisoner outside a “prison”, eg a heart attack,
lightning, etc or by other causes over which
he has no control, eg a
motor vehicle collision, his ward, the prisoner, could then lawfully
leave the scene for any place of his
choice. Another absurd situation
would result if a third person in such circumstances, without any
prompting the prisoner, were
to grab hold of the arms of the warder.
The prisoner would once again not be under
de
facto
control and
would be able to leave without fear of contravening
s 50(1)(a).
These
examples clearly reflect that the Legislature could not have intended
“control” to be the deciding factor.’
(A full bench judgment of the same division in
S
v Daphe
1982 (4) SA 60
(Tk) which came to a
different conclusion is, in my view, distinguishable since it was
partly based on a finding that by leaving
the police vehicle
escorting him between different towns after it capsized and its
driver and only official occupant lost consciousness,
the escapee
neither acted unlawfully in the circumstances of the case nor had the
mens rea
to escape as
he had telephoned the police shortly thereafter and informed them of
his whereabouts.) See also
S v Anderson
1999
(1) SACR 153
(N), per Hurt and Nicholson JJ, at 161h-162f.
[17] In the absence of clear evidence regarding how the
escape was executed, one is faced with two probable scenarios: the
fugitives
escaped either between the courtroom and the court
detention cells or from the detention cells themselves. As I see it,
the paucity
of relevant evidence is not fatal to the State case as
either scenario falls neatly within the ambit of
s 115(e)
having
regard to the meaning which the Legislature ascribed to the terms
‘prison’ and ‘prisoner’. Given
its general,
ordinary meaning, the wording of the expansive definition of ‘prison’
leaves no doubt that a detention
cell within a court building falls
within its purview. Thus if the escape was launched from the
detention cells, the fugitives
would obviously be covered by the part
of the definition of ‘prisoner’ that refers to ‘any
person... who is detained
in custody in any prison’. It further
seems to me clear from the latter portion of the definition of
‘prisoner’
that a person in lawful custody, including an
awaiting-trial prisoner, retains that status even when in transit
between different
locations (see
S v South African Associated
Newspapers Ltd v and another
1962 (3) SA 396
(T) at 398D;
S v
Sibiya
1987 (4) SA 180
(N) at 185H-I;
S v Mtwazi
supra at
369a-e). Of particular relevance for present purposes are the words
‘“prisoner” means any person ...
who is being
transferred in custody’. Some of the common definitions of the
word ‘transfer’ are ‘to convey
or take from one
place, person, etc to another … to give or hand over from one
to another’ (The Oxford English Dictionary
2ed vol XVIII). To
my mind, this portion of the definition of ‘prisoner’
would necessarily apply if the fugitives escaped
whilst en route from
the courtroom to the detention cells to which they were dispatched
until the court session resumed at 14h00.
For these reasons, it is
competent to convict Mr Bogaards for contravening the provisions of s
115(e) of the Correctional Service
Act.
[18] Regarding the question of appropriate punishment,
the provisions of
s 115(e)
of the
Correctional Services Act
contemplate
a maximum sentence of 10 years imprisonment with or
without a fine. Seriti JA’s judgment fully discusses Mr
Bogaards’
personal circumstances (he was a 48 year-old farmer
with a clean record and had a wife, his co-accused, and a son of an
undisclosed
age) and other factors relevant to the sentencing
process, including the gravity of Mr Bogaards’ transgressions
(the numerous
charges against the fugitives he harboured and
concealed include treason, sabotage, murder and involve allegations
of the attempted
assassination of former President Nelson Mandela,
the manufacture and use of explosive devices, the bombing of a Soweto
mosque
and a Buddhist temple in Bronkhorspruit and many others), his
defiance of police warnings not to provide the fugitives with shelter

and the time, money and other valuable resources expended by the
state on an extended, nation-wide search for the fugitives. Mr

Bogaards’ lack of remorse must also be considered. He denied
any wrongdoing until the bitter end. A grudging, limited concession

that the fugitives had been on his farm after their escape from
prison, which had to be made anyway in view of the overwhelming

evidence, came from his counsel only at appeal stage. But he still
refused to fully take the court into his confidence and admit

liability for his actions. The horrendous consequences for humanity
as a whole from acts of terror need not be spelt out. Those
who aid
and abet such conduct are as dangerous to mankind as the actual
perpetrators of such acts. Clearly, a substantial custodial
sentence
is the only appropriate punishment in the circumstances of this case.
In my view, a prison term of five years imprisonment
would adequately
serve the interests of justice in all the circumstances.
[19] I would accordingly make the following order:
1 The appeal succeeds to the extent that the appellant’s
convictions on the two main counts and the sentences are set aside.
2 The order of the high court is set aside and replaced
with the following:
‘
The accused is found guilty on
the alternative count of contravening
s 115(e)
of the
Correctional
Services Act 111 of 1998
and sentenced to undergo five years
imprisonment.’
______________________________
MML Maya
Judge of Appeal
MTHIYANE JA:
[20] I have had the benefit of reading the judgments of
my colleagues, Seriti JA, Leach JA and Maya JA. Regrettably I find
myself
unable to agree with the reasoning and conclusion adopted by
Seriti and Leach JJA. I concur in the conclusion and order proposed

by Maya JA. I agree with her conclusion that the appellant should
have been convicted of the alternative count of contravening
s 115
(e) of the
Correctional Services Act 111 of 1998
, in that he
harboured or concealed the escaped prisoners, Gouws and Van Rooyen.
[21] Unlike my colleagues, Leach and Maya JJA, I do not
however think it is necessary to go into the question of whether the
two
escapees were prisoners at the time of their escape. The sole
issue for determination on appeal (as identified in the heads and
in
argument) was whether ‘the warrants [under which Gouws and Van
Rooyen were held at the time of their escape] were invalid’.

Both Maya and Leach JJA are agreed that the appellant must fail on
this issue and that this question must be answered in favour
of the
State. Regrettably my colleagues find themselves at loggerheads on
the question of whether Gouws and Van Rooyen were ‘prisoners’

or whether they were in ‘prison’ at the time of their
escape, and invariably come to different conclusions on that
issue
which as I have said, was never raised by the appellant or the
respondent. That was not the basis on which the case was conducted
at
the trial. The appellant pleaded not guilty and did not tender a plea
explanation indicating the basis of his defence. His defence
on the
alternative charge of escaping only emerged during the
cross-examination of the state witness, Inspector Carlo Etsebet,
who
was in charge of the two escapees in the High Court, Pretoria from
where Gouws and Van Rooyen escaped. The only defence disclosed
by
Advocate Muller SC, for the appellant, during cross-examination was
that the detention warrants under which Gouws and Van Rooyen
were
held were invalid. Not a word was uttered about whether the escapees
were ‘prisoners’ at the time of their escape
or that they
escaped from a ‘prison’. It bears mention that this is
not just a legal issue but is also a question of
fact. Had the State
been alerted to the fact that this was raised as an issue the State
might well have conducted its case differently.
[22] To now hold at his late stage, as Leach JA seeks to
do, that the appeal should succeed on this charge on the basis that
the
Boeremag trialists, Gouws and Van Rooyen were not ‘prisoners’,
is with respect a course which is not open to an appellate
court and
might well result in unfairness to the one side.
[23] Because the issue was not raised the State probably
approached the matter on the basis that the appellant was not
disputing
that the two escapees were prisoners and all that it had to
deal with was the validity or otherwise of the detention warrants.
The appellant was represented on appeal by Muller SC, a silk of many
years standing. There is no reason to think that he would not
have
applied his mind to the question whether Gouws and Van Rooyen were
prisoners or not at the time of their escape, if he considered
that
there was the course the appellant wished to pursue. I do not think
that it is open to this court to credit the appellant
with a defence
he did not raise, more so if this would result in prejudice and
unfairness to the other party, in this case the
State.
[24] I say all of the above mindful of the fact that the
onus of proof in a criminal case is on the State. But as we know in
criminal
cases depending on how the case is run, the State is not
always called upon to prove every element of the offence (which in my
view is what happened in the present matter).
[25] Even if we were called upon on appeal (which I do
not believe to be the case) to consider whether Gouws and Van Rooyen
were
‘prisoners’ or in ‘prison’ at the time
of their escape I would still favour an interpretation (of these

words) that accords with logic and common sense and avoid a strictly
textual and legalistic approach to the meaning of the words.
(See
African Christian Democratic Party
v Electoral Commission
[2006] ZACC 1
;
2006 (3) SA 305
(CC) at para 25;
Weenen Transitional Local
Council v Van Dyk
2002 (4) SA 653
(SCA) para 13;
Chauke v
Santam Ltd
[1996] ZASCA 120
;
1997 (1) SA 178
(A) at 183B-C). Before being taken to
court Gouws and Van Rooyen were held as ‘prisoners’ in
prison. I do not believe
that they lost that status when they stepped
out of the prison doors en route to court. In my view, they
maintained their status
as ‘prisoners’ and when they
escaped they did so as prisoners. That for me is what makes logical
sense.
[26] For the above reasons I concur in the order
proposed by Maya JA.
_______________________
K K MTHIYANE
JUDGE OF APPEAL
SERITI JA:
[27] The appellant, Mr Jacobus Bogaards and his wife,
Mrs Elizabeth Bogaards, were arrested on 13 January 2007 and appeared
on 15
January in the Modimolle Magistrates’ Court. They again
appeared on 22 January when bail was fixed, and the matter was
postponed
to 16 February where, a charge sheet was handed to them and
the matter was post-poned to 12 July 2007 for trial in the Modimolle

Regional Court. The trial proceeded and they were charged with
contravening ss 11 and 12(1)(b) of the Protection of Constitutional

Democracy Against Terrorist and Related Activities Act 33 of 2004
(the Terrorist Act), and one alternative charge of contravening
s
115
(e)
of the
Correctional Services Act 111 of 1998 (Correctional Services Act).
[28] The appellant and his wife, who were out on bail,
were subsequently convicted on the two main counts. He was sentenced
on count
1 to five years’ imprisonment, two years of which were
suspended on certain conditions, and one year imprisonment on count

2, and it was ordered that the sentence on the latter count run
concurrently with the sentence imposed on count 1. In the case
of his
wife the two counts were taken together for purposes of sentence and
she was sentenced to two years’ imprisonment,
wholly suspended
on certain conditions.
[29] The appellant appealed against his convictions and
sentences and his wife appealed against her convictions only. On 11
February
2010, the North Gauteng High Court (Murphy J and Dolamo AJ)
confirmed his conviction and sentence and set aside the conviction of

his wife. On the same date the high court granted him leave to appeal
to this Court, and his bail was extended pending the finalisation
of
the appeal.
Background Facts
[30] During 2002 several people were arrested. Amongst
these were Mr Herman Van Rooyen (Van Rooyen) and Mr Jan Rudolph Gouws
(Gouws).
Van Rooyen was arrested on 11 December 2002, in Pretoria. He
was a farmer in the BelaBela area, a captain in the South African
National Defence commando stationed at BelaBela, and a commander of
the reaction force. Gouws was arrested on 10 December 2002,
in
Pretoria. He worked for Van Rooyen on the farm and he was also a
member of the BelaBela commando having a rank of corporal.
The
appellant was also a member of the commando and he also attended
meetings of the commando.
[31] A total of 22 people including Van Rooyen and Gouws
were indicted and appeared before the North Gauteng High Court on
several
charges. These included murder, sabotage and four counts of
terrorism, under s54(1) of the Internal Security Act 74 of 1982. The

matter is referred to as
S v Du Toit
. The arrest and
subsequent trial engendered widespread public interest. The trial
came to be known as the ‘Boeremag trial’,
and it is
convenient to refer to it as such in this judgment. The trial
commenced on 13 May 2003 and Van Rooyen appeared as accused
number 18
and Gouws as accused number 22. The matter is still proceeding before
the high court and Van Rooyen and Gouws were never
granted or
released on bail since their arrest and detention.
[32] Prior to the beginning of the ‘Boeremag
trial’ the police identified the appellant as a possible state
witness
and on 12 February 2003 a statement was obtained from him.
However he was never called as a state witness. In the said statement

the appellant, amongst others, stated that ‘[e]k weet van
Herman van Rooyen aangesien ons saam vergaderings by die DLU bygewoon

het’.
[33] As stated earlier Van Rooyen and Gouws were kept in
detention while the trial was continuing. They were kept at the
Central
Prison, Pretoria. On 3 May 2006 the trial continued until
12h45 when the court adjourned for lunch. All the accused were
present
when the court adjourned. At 14h00, when the trial resumed,
it was discovered that Van Rooyen and Gouws were missing. Police
officers
searched the court building and organised road blocks but
Van Rooyen and Gouws could not be found. When Van Rooyen and Gouws
escaped
they did not have any parcels or money on them, except the
clothes they were wearing. Police established an operational room to

co-ordinate the search of the two escapees. A country wide search was
conducted, media statements were issued and photographs of
the two
escapees were released to the media. A helpline was also established
and a contact number was also provided to the media.
Interpol was
also contacted for assistance. The bank accounts of the escapees were
monitored and there were no movements on the
said accounts.
[34] On 22 October 2006 police officers went to the
appellant’s farm (the farm) to search for the escapees. At the
house the
police found the appellant, his wife and a certain Mr
Willem Ratter. The house and the surrounding buildings were searched
but
the escapees could not be found. Superintendent Vreugdenburg,
Chief Investigating Officer in the ‘Boeremag’ matter,
was
in charge of the operation. He informed the appellant that they were
looking for Van Rooyen and Gouws and the appellant denied
that the
escapees were at his house. Police searched only the buildings on the
farm and could not find the escapees. The farm was
not searched.
Superintendent Vreugdenburg further testified and said: ‘[j]ust
before we left I told accused 1 that if we
don’t find the two
escapees on his farm on this day, I gave him a warning that if they
are there and I did not find them,
he must get rid of them, chase
them away, he mustn’t allow them on his farm. He again denied
any knowledge of them’.
[35] On 13 January 2007 police went to the farm and
searched the buildings there. In one of the corrugated iron rooms, a
motorbike
was found. The motorbike was covered with a raincoat and a
dirty piece of material. The motorbike had registration numbers and
within a few minutes police officers established that the motorbike
was registered in the name of Van Rooyen. Superintendent Vreugdenburg

asked the appellant whose motorbike it was and the appellant informed
him that he bought it about two months prior from Mr Gerald
van
Rooyen, the father of Van Rooyen, one of the escapees, and that the
transaction was done by the exchange of cattle. The appellant
also
mentioned that the motorbike was brought to the farm by Mr Allen Van
Rooyen, brother of the escapee. When asked about the
keys of the
motorbike the appellant initially said that they were in his son’s
room, however he later stated that they were
lost.
[36] Some of the police officers searched the farm
itself. They found a tent hidden in the veld on the farm, about 500m
away from
the house. The tent was in a dry riverbed covered with a
piece of cloth. A box, full of food, and army backpacks were found
next
to the tent. Inside the tent they found sleeping bags and
mattresses. One of the bags was opened and inside they found shoes,
pants
and a shirt which they recognised as belonging to Gouws, one of
the escapees. The pants were marked ‘RG’. A fire-arm
and
a helmet were found. Fingerprints of Van Rooyen were found on the
helmet and fingerprints of Gouws were found on the bag of
sugar found
in the tent.
[37] On the same day, whilst walking in the vicinity
where the tent was discovered, one of the police officers saw Van
Rooyen about
10m from where the tent had been situated, prior to its
removal. Van Rooyen was carrying an R1 assault rifle. Van Rooyen
after
a short discussion with the police officer disappeared into the
river and left. The articles found at the tent were taken away for

forensic tests and the appellant and his wife were arrested. There
were indications that the tent was there for a long time.
[38] On 20 January 2007 the two fugitives, Van Rooyen
and Gouws were arrested at the Villa Mignon Complex, Lyttleton,
Centurion.
They were found in two separate bedrooms in one of the
units. In one of the bedrooms they found two R1 assault rifles, with
a magazine
which was filled with live rounds and one live round in
the chamber of the rifle. Cell phones, GPS apparatus, certain
documents
and a few maps were also found. Keys to the motor bike,
that had been found on the farm was also found at the place where Van
Rooyen
and Gouws were arrested.
[39] As mentioned earlier, the appellant and his wife
were arrested on 13 January 2007. They appeared in the magistrates’
court on 15 January and their case was postponed to 22 January for
bail application. On 22 January they again appeared in court.
They
were granted bail of R10 000 each and the case was postponed to 16
February for further investigation.
[40] On 8 February 2007, the Deputy Director of Public
Prosecutions addressed a letter to the Limpopo Province Regional
Court President.
The letter reads as follows:
‘
THE STATE versus BOGAARDS AND ANOTHER
TRIAL DATE – MODIMOLLE
It has been decided to prosecute Mr and Mrs Bogaards in the Regional
Court on charges of contravening sections 11 and 12 of Act
no 33 of
2004: Protection of Constitutional Democracy against Terrorism and
Related Activities, as well as a charge of contravening
section
115(e)
of the
Correctional Services Act, 111 of 1998
.
The prosecution originates from their alleged harboring of and
assistance to two accused in the Boeremag trial who escaped from
the
High Court, Pretoria in May 2006.
It has been decided to approach you with a request to make a
regional court magistrate available to hear the matter during a

special sitting of a regional court to be arranged at Modimolle…
It appears that a date that will suit the defence, the State and the
logistic arrangements of the magistrates court will be 11
- 27 July
2007.’
[41] On 16 February 2007 the appellant and his wife
appeared in court and their case was remanded to 11 July for trial at
Modimolle
Regional Court. A charge sheet was given to the defence
counsel, and on request of the defence counsel, the court ordered the
State
to furnish the defence with further particulars to the charge
sheet on or before 31 March 2007.
[42] On 19 June 2007 Ramaite SC, acting National
Director of Public Prosecutions (NDPP) signed authorisation in terms
of s 16(1)
of the Terrorist Act, in terms of which he authorised the
prosecution of the appellant and his wife on two charges of
contravening
ss11 and 12(1)
(b)
of the Terrorist Act.
[43] On 12 July 2007 the appellant and his wife appeared
before the regional court. The authorisation mentioned above was
handed
to the court. The appellant and his wife who were represented
by counsel, pleaded not guilty and the trial proceeded without the

defence objecting to the charges put to them. After leading evidence,
the State closed its case. The defence closed its case without

leading any evidence.
[44] In his heads of argument, the defence counsel
conceded that the evidence adduced by the State proved that the two
escapees
visited or stayed on the farm for a certain period. In this
appeal the defence raised five grounds of appeal and I will deal with

them hereunder.
Validity of the Prosecution
[45] Counsel for the appellant submitted that the
prosecution is a nullity because the State instituted the prosecution
without
the written authority of the NDPP as required by section
16(1) of the Terrorist Act. He further submitted that the prosecution
was, as a fact instituted on 16 February 2007, when the charge sheet
was given to the appellant and he was informed that he would
be
prosecuted in the regional court on the said charges.
[46] Section 16(1) of the Terrorist Act reads as
follows: ‘[n]o prosecution under Chapter 2 may be instituted
without the
written authority of the National Director’.
Sections 11 and 12 of the Terrorist Act fall under Chapter 2 of the
said Act.
In order to determine whether the submission by counsel for
the appellant is correct or not, we should determine when the
prosecution
was instituted in this matter.
[49] In
Minister of Law and Order v Kader
1991
(1) SA 41
(A) the court had to deal with s 64 of the Internal
Security Act 74 of 1982 (the Internal Security Act). The said section
reads
as follows:‘…[n]o prosecution… shall be
instituted without the written authority of the attorney-general’.

At 51e-f Grosskopf JA said: ‘[w]hat is meant by the institution
of a prosecution depends on the context in which the expression
is
used (cf
R v Priest
1931 AD 492
and
R v Friedman
1948
(2) SA 1034
(C)). The purpose of s 64 is to ensure that the decision
to prosecute a person for a contravention of s 54 is a responsible
one,
taken by the person who, in terms of s 3 of the Criminal
Procedure Act, has the authority to prosecute in the name of the
Republic
in criminal proceedings. This purpose cannot be achieved if
the Attorney-General is required to arrive at a decision on
incomplete
or preliminary information’.
[48] In
National Director of Public Prosecutions v
Moodley
2009 (2) SA 588
(SCA) the court had to deal with the
interpretation of
s 2(4)
of the
Prevention of Organised Crime Act 121
of 1998
. The section reads: ‘[a] person shall only be charged
with committing an offence contemplated in subsection (1) if a
prosecution
is authorised in writing by the National Director’.
The accused were charged with certain offences some of which are
affected
by
s 2(4)
quoted above. A draft charge sheet was given to
the accused on 10 December 2003 and the written authorisation by the
NDPP was dated
24 March 2004. The respondents contended that they
were charged on counts which required the NDPP’s authorisation
prior to
the State obtaining the required authorisation. Scott JA
said, para 12: ‘[i]n my view counsel for the appellant
correctly
submitted that once the prosecution is authorised in
writing by the National Director there can be no reason, provided the
accused
has not pleaded, why the further prosecution of the accused
on racketeering charges would not be lawful, even if the earlier
proceedings
were to be regarded as invalid for want of written
authorisation’.
[49] In this matter, the NDPP signed the authorisation
in terms of s 16(1) of the Terrorist Act on 19 June 2007. On the
trial date,
12 July 2007 the written authorisation was handed to the
court prior to the accused entering their plea. There were no
objections
from the defence.
[50] The meaning of the words ‘institution of
prosecution’ must be interpreted in the context of the
legislation in
order to assign to it its proper meaning. As stated in
Kader
supra at 51e-d, what is meant by the words ‘institution
of a prosecution,’ depends on the context in which the
expression
is used. See also
Zuma v National Director of Public
Prosecutions
2008 (1) SACR 298
(SCA) para 10 and,
S v F
1965
(3) SA 757
(T).
[51] Counsel for the appellant sought to rely on
R v
Priest
1931 AD 492
,
R v Friedman
1948 (2) SA 1034
(C) and
Kader
supra. These decisions are of no assistance to the
appellant. In
R v Priest
, the court gave meaning to the word
‘prosecution’ within the framework of the Cape Libel Act
46 of 1882. There was
no attempt on the part of the court, to give
meaning to the word ‘prosecution’ which would be of
general application.
At 495 Wessels ACJ said ‘…but we
have to determine… whether the word was there used in its more
general meaning
of a commencement of criminal proceedings’. In
R v Friedman
the accused was charged with the contravention of
s 17(3) of the Food, Drugs and Disinfectants Act 13 of 1929. The
court had to
determine when the prosecution was instituted and it
held that the prosecution was instituted against the accused on the
date summons
was issued. The court, in order to come to that
conclusion, was guided by the intention of the legislature and took
into account
the legal framework of the legislation in question. As
stated earlier, in
Kader
the court said that what is meant by
institution of a prosecution depends on the context in which the
expression is used.
[52] In my view, in the context of the Terrorist Act,
the words ‘no prosecution may be instituted’, mean that
the certificate
signed by the NDPP must be available prior to the
accused pleading to the charges. The main purpose of the section is,
amongst
others, to ensure that a decision to prosecute a person on a
charge of this nature is taken by the highest official after properly

considering all the relevant facts and implications of such a
prosecution. If the NDPP can be expected to make a decision to issue

the certificate, prior to the proper investigation of the case, that
might undermine the objective of the section.
[53] Preliminary arrangements like the letter addressed
by the Deputy Director of Public Prosecutions to the Regional Court
President,
providing the accused with a charge sheet and further
particulars thereto cannot be regarded as the institution of a
prosecution.
These merely constitute the preparations for the
prosecution of the accused.
[54] My conclusion on this point is fortified by the
fact that if the accused had objected before the plea, the State
could have
simply withdrawn the charges and immediately thereafter
re-charged him for the same offences. This would have led to the
appellant
and his wife being prejudiced by the further delays in the
prosecution of their trial which would not have served the interest
of justice. I am satisfied that the provision of s 16(1) has been
complied with. Such an interpretation satisfies the aims and
objectives of the statute without straining the meaning of words
employed by the legislature.
Interpretation of ss 11 and 12(1)(b) of the Terrorist
Act
[55] Section 11 reads as follows:
‘
Any person who harbours or conceals any
person, whom he or she knows, or ought reasonably to have known or
suspected, to be a person
who has committed a specified offence, as
referred to in paragraph (a) of the definition of “specified
offence”, or
who is likely to commit such an offence, is guilty
of an offence.’
Section 12(1)
(b)
reads
as follows:
‘
Any person who…
(b)
is aware of the presence at any place
of any other person who is suspected of intending to commit or having
committed such an offence,
must report as soon as reasonably possible
such suspicion or presence as the case made be, or cause such
suspicion or presence,
to be reported to any police official.’
[56] The definition clause defines ‘specified
offence’ as inter alia, the offence of terrorism referred to in
s 2. Section
2 of the Terrorist Act provides that any person who
engages in terrorist activity is guilty of the offence of terrorism.
Terrorist activity, with reference to amongst others s 2
mentioned above is defined as:
‘
(a) any act committed in or outside the
Republic, which –
(i) involves the systematic, repeated or arbitrary use of violence by
any means or method…
(iii) endangers the life, or violates the physical integrity or
physical freedom of, or causes serious bodily injury to or the
death
of, any person, or any number of persons;
(iv) causes serious risk to the health or safety of the public or any
segment of the public;
(v) causes the destruction of or substantial damage to any property,
natural resource, or the environmental or cultural heritage,
whether
public or private…
(vii) causes any major economic loss or extensive destabilisation of
an economic system or substantial devastation of the national
economy
of a country; or
creates a serious public emergency situation or general
insurrection in the Republic…and
(b)
which is intended, or by its nature and context, can
reasonably be regarded as being intended, in whole or in part,
directly or
indirectly, to -…
(ii) intimidate, or to induce or cause feelings of insecurity within,
the public, or a segment of the public, with regard to its
security,
including its economic security, or to induce, cause or spread
feelings of terror, fear, or panic in a civilian population;
or
(iii) unduly compel, intimidate, or force, coerce, induce or cause a
person, a government, the general public, or a segment of
a public,
or a domestic or an international organisation or body or
intergovernmental organisation or body, to do or to abstain
or
refrain from doing any act or to adopt or abandon a particular
standpoint, or to act in accordance to certain principles…’.
‘
Terrorist and related
activities’ is defined by the definition clause as any act or
activity related to or associated or connected
with the commission of
the offence of terrorism, or an offence associated or connected with
a terrorist activity, or a Convention
offence or an offence referred
to in ss 11 and 14.
Section 1(7) of the definition clause reads as follows:
‘
For the purpose of this Act a person ought
reasonably to have known or suspected a fact if the conclusions that
he or she ought
to have reached, are those which would have been
reached by a reasonably diligent and vigilant person having both-
(a) The general knowledge, skill, training and experience that may
reasonably be expected of a person in his or her position; and
(b) The general knowledge, skill, training and experience that he or
she in fact has.’
[57] As stated earlier, Van Rooyen and Gouws appeared as
accused 18 and 22 in the ‘Boeremag trial’. They faced
several
counts including murder, sabotage and terrorism. As far as
the terrorism counts are concerned they are alleged to have
contravened
s54(1)(i),(ii),(iii)
and (iv) of
Internal Security Act 74 of 1982. Section 54(1) reads as follows:
‘
Any person who with intent to-
overthrow or endanger the State authority in the Republic;
achieve, bring about or promote any constitutional, political,
industrial, social or economic aim or change in the Republic;
induce the Government of the Republic to do or to abstain from doing
any act or to adopt or to abandon a particular standpoint;
or
put in fear or demoralize the general public, a particular
population or the inhabitants of a particular area, in the Republic,

or to induce the said public or such population group or inhabitants
to do or to abstain from doing any act,
in the Republic or elsewhere -
commits an act of violence or threatens or attempts to do so;
performs any act which is aimed at causing , bringing about,
promoting or contributing towards such act or threat of violence,
or
attempts, consents or takes any steps to perform such act;
conspires with any other person to commit, bring about or perform
any act or threat referred to in paragraph (i) or act referred
to in
paragraph (ii) or to aid in the commission, bringing about or
performance thereof; or
incites, instigates, commands, aids, advises, encourages or procures
any other person to commit, bring about or performs such
act or
threat,
shall be guilty of the offence of terrorism and liable on conviction
to the penalties provided for by law for the offence of treason.’
[58] Section 11 prohibits a person from harbouring or
concealing persons whom he or she knows, or suspects or ought
reasonably to
have known or suspected to be a person who has
committed terrorist activities or who is likely to commit such
activities. Section
12(1)
(b)
requires any person who is aware
of the presence at any place of a person who is suspected of having
committed terrorist activities
or likely to commit terrorist
activities to report the presence of such person to any police
official. The effect of the presumption
contained in s 1(7) is that
if the State relies on the suspicion of the accused, it would be
sufficient to show that a reasonable,
diligent and vigilant person
with the general knowledge, skill, training and experience of the
accused would have so known or suspected.
[59] In
Powell NO v Van Der Merwe NO
2005 (5) SA
62
(SCA), paras 36 and 37, Cameron JA said:
‘
This Court has endorsed and adopted Lord
Devlin’s formulation of the meaning of ‘suspicion’:
“
Suspicion in its ordinary meaning is a
state of conjecture or surmise where proof is lacking; ‘I
suspect but cannot prove’.
Suspicion arises at or near the
starting point of an investigation of which the obtaining of
prima
facie
proof is the end…”
To the passage already adopted I would add the sentence that
immediately follows, since it has a bearing on the present:
“
When such proof has been obtained, the
police case is complete; it is ready for trial and passes on to its
next stage”.
Ferreira and Swanepoel were not ready to charge Powell or Nell.
Prima
facie
proof was as yet lacking. Lord Devlin went on to point out:
“
Another distinction between reasonable
suspicion and
prima facie
proof.
Prima facie
proof consists of admissible evidence... Suspicion can take into
account matters that could not be put in evidence at all…

Suspicion can take into account also matters which, although
admissible, could not form part of
prima
facie
case.”’
See also
Duncan v Minister of Law
and Order
1986 (2) SA 805
(A) at 819I, and
Kader
at 50H-I.
[60] As indicated above, it is undisputed that the
escapees stayed on the farm during the period alleged by the State.
Their tent
was a mere 500m away from the farm house. Van Rooyen’s
motor-vehicle was kept in a shed near the house. It is inconceivable

that the appellant would have been unaware of the presence of Van
Rooyen and Gouws on his farm. There was only one entrance to
the
farm, and the appellant would necessarily have known about their
movements in and out of the farm. I find on this evidence
that the
appellant harboured Van Rooyen and Gouws.
[61] As pointed out earlier, Van Rooyen and Gouws were
arrested during December 2002 and they were on trial, facing several
counts
of terrorism, sabotage and murder. Their arrest and trial
received wide media coverage. The appellant, Van Rooyen and Gouws
were
known to each other and were all members of the local Commando.
Van Rooyen’s brother and father were known to the appellant.

Police officers took a statement from the appellant as a potential
state witness in the ‘Boeremag trial’. After the
escape
of Van Rooyen and Gouws, police mounted a massive manhunt looking for
them. Their escape received wide media coverage. On
20 October 2006
police officers went to the farm looking for Van Rooyen and Gouws.
Police officers after failing to find Van Rooyen
and Gouws on the
farm, ordered the appellant not to allow them on his farm.
[62] From the facts mentioned in the preceding
paragraph, it is clear to me that the appellant knew that Van Rooyen
and Gouws were
some of the accused in the ‘Boeremag trial’.
With his general knowledge and skills, the appellant knew, or
suspected
or ought reasonably to have suspected that Van Rooyen and
Gouws had committed terrorist activities or are likely to commit
terrorist
activities.
[63] Counsel for the appellant submitted that a
conviction under s 11 is not competent unless the harboured persons
have been charged
with terrorism under the Terrorist Act. He further
submitted that the court a quo erred in finding that a conviction
under s 11
is competent despite Van Rooyen and Gouws not having been
charged under the Terrorist Act.
[64] The definition of ‘terrorist activities’
as defined in s 1 of the Terrorist Act include the activities which
are
regarded as terrorist activities in terms of the Internal
Security Act. Some of the activities which form the basis of the
charges
that Van Rooyen and Gouws are facing under the Internal
Security Act are activities which are equivalent to activities
contemplated
in the definition of terrorist activities under the
Terrorist Act. Van Rooyen and Gouws were charged with activities that
could
constitute terrorism under the Terrorist Act.
[65] Counsel for the State contended, correctly so in my
view, that it is clearly the express intention of the legislature in
both
the Internal Security Act and the Terrorist Act to make
provision for the prosecution of people committing deeds of terrorism
or
terrorist activities as well as people harbouring, concealing or
assisting such persons. Under both Acts failure to report such

persons is an offence.
[66] In
Janse Van Rensburg v
Minister of Defence
2000 (3) SA 54
(SCA) para
18, Melunsky AJA said: ‘[a] court fulfils its function by
attempting to give effect to the intention of the lawgiver…All

other methods of interpretation should be considered with a view to
arriving at the intention of the legislator’.
The interpretation contended for by the appellant, will
obviously undermine the intention of the legislator which is to
criminalise
people who harbour or fail to report people who are
suspected of having committed terrorist activities or who are likely
to commit
such activities.
[67] Some of the activities Van Rooyen and Gouws are
alleged to have engaged in are classified as terrorist activities
under the
Terrorist Act. My view is that it is sufficient for the
State to prove that Van Rooyen and Gouws are known or suspected or
ought
reasonably to have been suspected to have committed activities
that could constitute terrorism under the Terrorist Act, or are
likely to commit such activities.
[68] Counsel for the appellant further submitted that in
the charge sheet, the State limited itself to the allegation that the
escapees
committed terrorist activities, and the State failed to
prove that the escapees committed acts of terrorism.
[69] Section 88 of the Criminal Procedure Act 51 of 1977
(the
Criminal Procedure Act) provides
that where a charge sheet is
defective for want of an averment which is an essential ingredient of
the relevant offence, the defect
shall, unless brought to the notice
of the court before judgment, be cured by evidence at the trial
proving the matter which should
have been averred.
[70] The failure by the State to make reference to the
suspicion of the persons being likely to commit terrorism or that the
escapees
were persons the appellant reasonably ought to have
suspected of terrorism in the charge sheet was cured, as contemplated
in
s 88
of the
Criminal Procedure Act, by
the evidence led by the
State.
[71] I am satisfied that the appellant harboured or
concealed persons whom he suspected or ought reasonably to have
suspected of
committing terrorist activities or who are likely to
commit terrorist activities. By his conduct the appellant contravened
the
provisions of s 11 of the Terrorist Act.
[72] The second count, as stated earlier relates to the
alleged failure by the appellant to report the presence of the
escapees
on his farm to the police as required by s 12(1)
(b)
of
the Terrorist Act. It is common cause that the appellant, despite his
knowledge of the presence of the escapees on his farm,
failed to
report their presence to the police. His failure to report the
presence of the escapees on his farm is consistent with
his intention
to harbour them. I am satisfied that the State has proved beyond any
reasonable doubt that the appellant contravened
both ss 11 and
12(1)
(b)
of the Terrorist Act.
Misdirection by trial court
[73] In his heads of argument counsel for the appellant
submitted that the magistrate committed a serious misdirection by
disallowing
cross-examination pertaining to the reason and period
that the observation unit of the police was on the farm, before the
unit
was discovered on 13 January 2007. He further submitted that the
refusal to allow the question rendered the trial unfair as envisaged

by s 34 read with s 35(3) of the Constitution.
[74] During cross-examination, Superintendent
Vreugdenburg was asked how long the police task force members had
been on the farm,
when they were discovered. Superintendent
Vreugdenburg refused to answer the question saying that he could not
disclose the police
investigating technique. The trial court ruled
that the Inspector need not answer the question.
[75] In
Shabalala v Attorney-General, Transvaal
[1995] ZACC 12
;
1996
(1) SA 725
(CC), the court had to deal with, inter alia the right of
an accused to a fair trial and the requirements of a fair trial in a
given case. Mahomed DP para 52, said: ‘[t]he court in each case
would have to exercise a proper discretion balancing the accused’s

need for a fair trial against the legitimate interest of the State in
enhancing and protecting the ends of justice’.
[76] Allowing the defence’s question in the
context of this case, would have exposed the police investigation
techniques whilst
at the same time it would have been of no
assistance to the accused. The accused’s need for a fair trial
in this case, does
not require the exposure of the police
investigating techniques. Besides that, the evidence that the defence
intended eliciting
by the question mentioned earlier is irrelevant in
the context of this case. The appellant did not suffer any prejudice.
Consequently
it cannot justifiably be said that the trial court
misdirected itself in any manner.
[77] My view is that there is no basis for interference
with the conviction of the appellant and therefore the appeal on
conviction
should fail.
Sentence
[78] It is trite that punishment is pre-eminently within
the discretion of the trial court. The court of appeal can interfere
with
the sentence imposed by the trial court only when it is vitiated
by irregularity, misdirection or is disturbingly inappropriate.
See
S
v Rabie
1975 (4) SA 855
(A) at 857D-F. In
S
v Le Roux
2010 (2) SACR 11
(SCA), para 35,
Mlambo JA said:
‘
As stated in many cases, which it is not
necessary to cite, sentence is a matter for the discretion of the
trial court, and a court
of appeal must focus on whether that
discretion was exercised judicially. As an appeal court we should be
slow to interfere in
sentences imposed by trial courts where the
exercise of their discretion is beyond reproach’.
[79] At the time of imposition of the sentence, the
appellant was 48 years old and a first offender. He was a farmer and
he participated
in the activities of the Commando in his area. He was
married and he has at least one child.
[80] Counsel for the appellant contended that the
sentence imposed induces a sense of shock and is therefore glaringly
inappropriate.
He also contended that a fine or suspended sentence
would be appropriate. He relied on the case of
Thatcher
v Minister of Justice and Constitutional Development
2005
(4) SA 543
(C). Reliance on the
Thatcher
case is misplaced as it is distinguishable from this
case. In the
Thatcher
case,
unlike the present case, there was a plea bargain where the sentence
was negotiated.
[81] In this matter there are various aggravating
circumstances. The appellant, who is convicted of serious offences,
showed no
remorse. The escape of Van Rooyen and Gouws caused the
State enormous financial expenses. The ‘Boeremag trial’
could
not continue for several months. Attempts to trace and
re-arrest both Van Rooyen and Gouws caused the State huge financial
and
human resources expenses.
[82] After considering all the circumstances of this
case, including the personal circumstances of the appellant, the
seriousness
of the offence and the aggravating circumstances, I am
not persuaded that there are any factors which justify any
interference
with the sentence imposed by the trial court. The
offences committed by the appellant are of such a serious nature and
in the circumstances
of this case they call for direct imprisonment.
A fine or suspended sentence would be wholly inappropriate.
[83] In the circumstances, I would dismiss
the appeal against both the conviction and sentence.
__________________
W L Seriti
Judge of Appeal
[84] Having read the judgment of Seriti JA, and while I
agree with his finding that the appellant had indeed harboured and
concealed
the escapees Gouws and Van Rooyen at some stage after they
had escaped from custody during the ‘Boeremag trial’ and

that the appellant failed to report their presence on his farm to the
police, I respectfully do not agree with his conclusion that
the
appellant thereby contravened either s 11 or s 12(1)
(b)
of the Protection of Constitutional Democracy Against
Terrorist and Related Activities Act 33 of 2004 (the Terrorism Act).
I am
also of the view that the State failed to prove its alternative
charge that the appellant had committed an offence under
s 115
(e)
of the
Correctional Services Act 111 of 1998
. My reasons
are set out below.
[85] At the outset it is necessary to consider the
relevant provisions of the Terrorism Act.
(a) In order to secure a conviction under s 11, the
State had to prove that an accused harboured or concealed a person
who he or
she knew, or ought reasonably to have known or suspected,
‘to be a person who has committed a specified offence as
referred
to in para
(a)
of
the definition of “specified offence”, or who is likely
to commit such an offence . . .’.
(b) The offences set out in sub-paragraph
(a)
of the definition of ‘specified offence’
2
are:
‘
the offence of terrorism
referred to in s 2, an offence associated or connected with terrorist
activities referred to in s 3, a
Convention offence, or an offence
referred to in ss 13 or 14 (insofar as it relates to the
aforementioned sections)’ –
I interpose to mention that
only offences involving ‘terrorism’ and ‘terrorist
activities’ are of relevance
in this case.
(c) Section 2 provides that any person ‘who
engages in a
terrorist activity
is
guilty of the offence of terrorism (emphasis provided).
(d) ‘Terrorist activity’ as referred to both
in part
(a)
of the
definition ‘specified offence’ and in s 2, is defined as
meaning (the reader is advised to take a deep breath):
3
‘
(a)
any
act committed in or outside the Republic, which ─
(i)   involves
the systematic, repeated or arbitrary use of violence by any means or
method;
(ii)   involves
the systematic, repeated or arbitrary release into the environment or
any part of it or distributing
or exposing the public or any part of
it to ─
(aa)
any
dangerous, hazardous, radioactive or harmful substance or organism;
(bb)
any
toxic chemical; or
(cc)
any
microbial or other biological agent or toxin;
(iii)   endangers
the life, or violates the physical integrity or physical freedom of,
or causes serious bodily injury
to or the death of, any person, or
any number of persons;
(iv)   causes
serious risk to the health or safety of the public or any segment of
the public;
(v)   causes
the destruction of or substantial damage to any property, natural
resource, or the environmental or
cultural heritage, whether public
or private;
(vi)   is
designed or calculated to cause serious interference with or serious
disruption of an essential service,
facility or system, or the
delivery of any such service, facility or system, whether public or
private, including, but not limited
to-
(aa)
a
system used for, or by, an electronic system, including an
information system;
(bb)
a
telecommunication service or system;
(cc)
a
banking or financial service or financial system;
(dd)
a
system used for the delivery of essential government services;
(ee)
a
system used for, or by, an essential public utility or transport
provider;
(ff)
an
essential infrastructure facility; or
(gg)
any
essential emergency services, such as police, medical or civil
defence services;
(vii)   causes
any major economic loss or extensive destabilisation of an economic
system or substantial devastation
of the national economy of a
country; or
(viii)   creates
a serious public emergency situation or a general insurrection in the
Republic, whether the harm
contemplated in paragraphs
(a)
(i)
to (vii) is or may be suffered in or outside the Republic, and
whether the activity referred to in subparagraphs (ii) to (viii)
was
committed by way of any means or method; and
(b)
which
is intended, or by its nature and context, can reasonably be regarded
as being intended, in whole or in
part, directly or indirectly, to ─
(i)   threaten
the unity and territorial integrity of the Republic;
(ii)   intimidate,
or to induce or cause feelings of insecurity within, the public, or a
segment of the public, with
regard to its security, including its
economic security, or to induce, cause or spread feelings of terror,
fear or panic in a civilian
population; or
(iii)   unduly
compel, intimidate, force, coerce, induce or cause a person, a
government, the general public or a
segment of the public, or a
domestic or an international organisation or body or
intergovernmental organisation or body, to do
or to abstain or
refrain from doing any act, or to adopt or abandon a particular
standpoint, or to act in accordance with certain
principles, whether
the public or the person, government, body, or organisation or
institution referred to in subparagraphs (ii)
or (iii), as the case
may be, is inside or outside the Republic; and
(c)
which is committed, directly or indirectly, in whole or in part, for
the purpose of the advancement of an individual or collective

political, religious, ideological or philosophical motive, objective,
cause or undertaking.'
(d)
Section 1 goes on further to define
‘terrorist and related activities’ as
‘
. . . any act or activity
related to or associated or connected with the commission of the
offence of terrorism, or an offence associated
or connected with a
terrorist activity, or a Convention offence, or an offence referred
to in ss 11 to 14.'
[86] The indictment served on the appellant and his wife
was terse in the extreme. It largely amounted to a regurgitation of
provisions
of the Terrorism Act. In respect of the first count, it
merely alleged that the appellants had contravened s 11:
‘
In that the accused during the
period 6 May 2006 to 13 January 2007 and on the farm
Waterbessiefontein, Buffelspoort in the district
of Waterberg,
wrongfully and intentionally harboured or concealed persons, to wit
Herman van Rooyen and Jan Rudolf Gouws, being
persons in respect of
whom the accused knew, or ought to have known or suspected, had
committed a specified offence as envisaged
in para (a) of the
definition of “specified offence” in (the Terrorism Act)
to wit terrorism and/or acts relating to
terrorist activities as
described in the said Act.'
4
[87] In the light of the definitions already set out,
the State was obliged to show that the two escapees were persons who
had committed
terrorist activities or acts relating to terrorist
activities in order to obtain a conviction. But noticeable by its
absence in
the indictment is any reference to any specific act of
terrorism or terrorist activity which the State alleged the
appellants knew
or ought to have known or suspected that the escapees
had committed. Interestingly, as Seriti JA mentions in his judgment,
when
the matter was postponed in the magistrates' court on 16
February 2007, the State was ordered to furnish further particulars
to
the charge on or before 31 March 2007.
Section 87(2)
of the
Criminal Procedure Act 51 of 1977
requires further particulars to a
charge to be entered in the record. This was not done, presumably as
the State did not so provide
the particulars as ordered.
[88] It may well be debatable in the circumstances
whether the indictment as framed is a proper charge which informed
the appellant
and his wife of the case they were to meet. Indeed, in
the light of the definition of terrorist, the charge can be properly
described
as ‘. . . a vague, confusing, and conclusory
articulation of the factual and legal basis for the claims and a
general “kitchen
sink” approach to pleading the case’
5
─
and I am surprised that the defence made no
attempt to squash it. As no such attempt was made, I intend to
proceed on the basis
that the State was entitled to secure a
conviction on proof that the appellant knew, or ought reasonably to
have known or suspected,
that the escapees had committed any of the
myriad of actions referred to in the definition of terrorist activity
or any act relating
to any such activity.
[89] The State initially attempted to do this by proving
certain handwritten notes made by the escapees after their escape
which
contained detailed plans to overthrow the government and to
free their co-accused in the Boeremag trial from detention in a high

security jail in Pretoria. However, although the trial court took
this document into account as proof that the appellant knew or
ought
to have known that the escapees were intent on committing acts of
terrorism, ultimately the State correctly accepted in this
court that
it had not shown that the appellant had any knowledge of either the
escapees’ notes or their violent plans. The
State was thus
constrained to fall back on an argument that the appellant must have
known that the escapees had been charged in
the Boeremag trial with
various offences under the Internal Security Act 74 of 1982 and that
this, coupled with their escape, must
have caused him at least to
suspect that they were guilty of those charges. This in turn, so the
argument went, established the
appellant’s guilt under s 11 of
the Terrorism Act.
[90] Essentially this argument is based on the
contention that the actions of the escapees committed before the
Terrorism Act came
into operation, and which were the subject of
charges under the Internal Security Act on which they were being
tried when they
escaped, are to be construed as ‘specified
offences’ under the Terrorism Act. This was the approach of the
high court
which, in dismissing the appellant’s appeal, said:
‘
. . . . it appears that Van
Rooyen and Gouws were charged with, as I have indicated, offences of
treason, attempted murder, murder
and also offences under the
Internal Security Act, which are in terms of that Act defined as
terrorism. It is therefore fair to
say that when Van Rooyen and Gouws
escaped from custody they were then charged with conduct equivalent
to that contemplated in
the definition of terrorism or terrorist
activities under the present legislation.’
[91] In my view, however, this is where the State’s
case is fatally flawed. With effect from 20 May 2005, the Internal
Security
Act was repealed in its entirety by s 27 of the Terrorism
Act. However, the latter section contained various ‘sunset’

provisions which read as follows:
‘
(2) All criminal proceedings
which immediately prior to the commencement of this Act were
instituted in terms of the provisions
of the Internal Security Act,
1982 (Act 74 of 1982), and which proceedings have not been concluded
before the commencement of this
Act, shall be continued and
concluded, in all respects as if this Act had not been passed.
(3) An investigation, or prosecution or other legal
proceedings, in respect of conduct which would have constituted an
offence under
the Internal Security Act, 1982, and which occurred
after the commencement of that Act but before the commencement of
this Act,
may be conducted, instituted and continued as if this Act
had not been passed.
(4) Notwithstanding the repeal or amendment of any
provision of any law by this Act, such provision shall, for the
purpose of the
disposal of any criminal proceedings, investigation,
prosecution or legal proceedings contemplated in subsection (2) or
(3), remain
in force as if such provision had not been repealed or
amended.'
[92] Not only is it trite that legislation, particularly
that giving rise to criminal liability, is presumed not to be
retrospective
in effect, but it is clear from these provisions that
the legislature drew a line in the sand to distinguish between events
giving
rise to criminal liability which had occurred before 20 May
2005 when the Internal Security Act was repealed, and those which
occurred
thereafter. Under s 27(2) the prosecution of the charges
against the escapees in the Boeremag trial is to continue as if the
Terrorism
Act had not been passed, and their actions which are the
subject of those charges could therefore never be the subject of
charges
under the Terrorism Act. Moreover, under s 27(3), even if the
escapees had not already been charged under the Internal Security
Act
before 20 May 2005, any criminal activities on their part before that
date which constituted an offence under the Internal
Security Act,
fall to be charged under that Act and not the Terrorism Act. Any
possible doubt in that regard is removed by the
specific provisions
of s 27(4).
[93] It is therefore clear that any criminal conduct
which constituted an offence under the Internal Security Act that
occurred
before that Act was repealed is to be dealt with and
prosecuted under that Act, and not under the Terrorism Act. That
being the
case, actions which constituted an offence under the
Internal Security Act cannot be the subject of a charge brought under
the
Terrorism Act. To hold otherwise would be to apply the Terrorism
Act retrospectively and to fly directly in the face of the
legislature’s
specific provision to the contrary.
[94] To regard offences under the Internal Security Act
as specified offences under the Terrorism Act would give rise to
absurdity.
It would mean that if the appellant concealed and
harboured the escapees well-knowing that they had committed offences
under the
Internal Security Act before its repeal, he could be
convicted in terms of s 11 of the Terrorism Act of the offence of
harbouring
persons on the basis that he knew they had committed
specified offences envisaged under the Terrorism Act while, in fact
and in
law, the escapees themselves could not be charged or convicted
of those offences by reason of s 27 of that Act.
[95] Having regard to the provisions of s 54 of the
Internal Security Act quoted by Seriti JA,
6
I accept that actions of a person of a nature that would
constitute the offence of terrorism under that Act might well also
amount
to terrorist activity (and therefore ‘terrorism’)
under the Terrorism Act. However, as is clearly apparent from what
I
have said, those actions committed before the Terrorism Act came into
operation on 20 May 2005 cannot be regarded as terrorist
activities
under the Terrorism Act and, thus, cannot be specified offences as
envisaged under that Act. Had that not been the legislature’s

intention, it could easily have specifically provided for specified
offences to include offences under the Internal Security Act.
Not
only did the legislature fail to do so but it clearly and
specifically provided for offences committed before the Internal

Security Act was repealed to be dealt with as if it had not been
repealed.
[96] As this issue was not ventilated until it was
raised with counsel during the appeal, both sides were allowed to
submit written
argument on the point. The reasoning I have set out
was gleefully adopted by counsel for the appellant. On the other hand
counsel
for the State, realizing the problem he faced, submitted in
his written argument that this court should modify the legislature’s

language to rule that terrorism under s 54 of the Internal Security
Act ‘is conduct equivalent to conduct contemplated in
the
definition of terrorist activities in the present legislation’.
7
However, although it may at times be permissible to
modify statutory provisions by reading into a statute something which
has been
clearly omitted, a court must guard against making rather
than interpreting legislation, and it certainly cannot supplement
legislation
if the effect of doing so flies in the face of the
legislature’s clear and specifically expressed intention. Here
the clear
intent of the legislature is for the Terrorism Act not to
operate retrospectively, and offences under that Act must thus be
limited
to conduct after it came into operation. There is just no
room to supplement the Terrorism Act in the manner suggested.
[97] The State therefore cannot look to the alleged
criminal activities of the escapees under the Internal Security Act
to prove
that they were persons whom the appellant knew, or ought to
have known or suspected, had committed an offence referred to in para
(a)
of the definition
of ‘specified offence’ in the Terrorism Act. As this was
the only conduct of the escapees relied upon,
the State failed to
prove an essential element of its main charge under s 11 (count 1 if
the indictment) and the appellant was
wrongly convicted on that
charge.
[98] On a parity of reasoning, the appellant was also
wrongly convicted of an offence under s 12. In that charge (count 2)
it was
alleged he had failed to report the presence of the escapees
on his farm to the police, well knowing that they were persons who

had committed terrorism or terrorist activity related offences as
envisaged by the Terrorism Act. Again the State relied on the

escapees’ actions which were the subject of the charges brought
against them under the Internal Security Act as proof of
this fact.
And again, it must fail as the conduct underlying such charges cannot
amount to terrorism or acts related to terrorist
activities under the
Terrorism Act.
[99] As the convictions under neither s 11 nor 12 of the
Terrorism Act can stand, it is strictly speaking unnecessary to
consider
the issue of whether the State had complied with the
provisions of s 16(1) of the Terrorism Act. That having been said, if
the
section is to be purposively interpreted the factors mentioned by
Seriti JA in his judgment may well lead to the conclusion that
a
prosecution under chapter 2 of the Terrorism Act is only ‘instituted’
when the accused is asked to plead. However,
even if I had concluded
otherwise in regard to the charges under the Terrorism Act, it would
have been unnecessary to decide the
issue. A similar issue arose in
this court in both
Moodley
8
and De Vries
9
in regard to s 2(4) of the Prevention of Organised Crime
Act 121 of 1998 (POCA) which is similar in nature and wording to s
16(1)
of the Terrorism Act in that it provides that an accused ‘shall
only be charged with committing an offence’ envisaged
by s 2(1)
of POCA if a prosecution is authorised by the National Director of
Public Prosecutions. As in the present matter, in
both those cases
the necessary authorisation had been made available before the
appellant was asked to plead. In each case this
court decided that
once the required written authorisation had been handed in, the
prosecution was thereafter lawful and that it
was thus unnecessary to
decide at what stage a person was ‘charged’ as envisaged
by s 2(4) of POCA. On a parity of
reasoning it would be unnecessary
in the present case to reach a decision on precisely when a
prosecution is ‘instituted’
as envisaged under s 16(1) of
the Terrorism Act, as that section had clearly been complied with
before the charges were put to
the appellant and he was asked to
plead thereto. Accordingly, had I not reached the conclusion which I
have in regard to the charges
under the Terrorism Act, I would
probably have found it unnecessary to decide the issue.
[100] I turn to the alternative charge on count 1
.
On this count it was alleged that by
harbouring the escapees on his farm the appellant had contravened
s
115
(e)
of the
Correctional Services Act 111 of 1998
which, as it read at the time,
provided that any person who ‘harbours or conceals or assists
in harbouring or concealing
an escaped prisoner’ commits an
offence (the Act has since been amended to delete reference to a
‘prisoner’ and
to replace it with an ‘inmate’).
10
[101] Again it is necessary to give close consideration
to the statutory provisions relevant to this issue.
(a) A ‘prisoner’ was defined in
s 1
of the
Correctional Services Act as
meaning:
‘
. . . any person, whether
convicted or not, who is detained in custody in any prison or who has
been transferred in custody or is
on route from one prison to another
prison’.
(b) In turn, a ‘prison’ was defined as
meaning (again it would be best for the reader to take a fairly deep
breath):
‘
. . . any place established
under this Act as a place for the reception, detention, confinement,
training or treatment of persons
liable to detention in custody or to
detention in placement under protective custody, and all land,
outbuildings and premises adjacent
to any such place and used in
connection therewith and all land, branches, outstations, camps,
buildings, premises or places to
which any such persons have been
sent for the purpose of imprisonment, detention, protection, labour,
treatment or otherwise, and
all quarters of correctional officials
used in connection with any such prison,
and
for the purposes of sections 115 and 117 of this Act includes every
place used as a police cell or lock-up.
’
(My emphasis.)
[102] It hardly needs to be said that ‘custody’
in the definition of ‘prisoner’ must mean lawful custody.

In order to establish that Van Rooyen and Gouws were in lawful
custody when they escaped, the State proved that after the Boeremag

trial had begun they had unsuccessfully applied for bail, their
application having been refused by the high court on 26 July 2004.

For present purposes I am prepared to accept that the effect of this
was that Van Rooyen and Gouws were ordered to remain in custody
and
that this order was operative at the time of their escape.
[103] In an attempt to get around this difficulty,
counsel for the appellant relied on
s 6(1)
(a)
of the
Correctional Services Act 111 of 1998
which
provides that ‘[a] person may not be committed to a prison
without a valid warrant for his or her detention’.
The evidence
established that at the relevant time the escapees, and those of
their co-accused who were in detention, were being
held at the C-Max
Prison in Pretoria, from where they were taken daily to attend their
trial in the high court. Each day a warrant
was issued in respect of
each of them, directing the head of the prison to take the person
concerned into custody and to redeliver
him to court the next day.
The day before the escape in question, such a warrant was issued for
each escapee.
[104] A warrant of detention amounts to a directive
issued by the court obliging the prison authorities to hold a person
in custody.
(There are also other important consequences which flow
from the issue of such a warrant, unnecessary to detail for purposes
of
this judgment).
11
It hardly needs to be said that the issue of a warrant
of detention (generally done using a form called a ’J7’)
is therefore
a serious matter. Unfortunately, the warrants relied on
by the State were sloppily prepared using a standard form to be
issued
by a magistrate, despite the trial in question being conducted
in the high court. But more importantly, although they bear the stamp

of the registrar of the high court, each warrant was signed
(purportedly on behalf of the magistrate) by a court orderly, a
policeman
by the name of Nkandiwiri who held the rank of inspector.
[105] Understandably, the validity of this warrant was
attacked by counsel for the appellant who, in doing so, relied
heavily on
the judgment in
S v Motsasi
1998 (2) SACR 35
(W) in which it was held that although
there is no statutory requirement to such effect, a warrant of
detention should be signed
by the presiding judge or by the registrar
or a senior official in the registrar's staff.
12
If this is indeed correct, the issue of a warrant by
court orderly would not amount to proper compliance. I should mention
as an
aside that Superintendent Vreugdenburg, when testifying stated
that problems had been experienced in getting court orderlies to

issue warrants and that he and his investigating team had taken to
issuing them. If the judgment in
Motsasi
is
correct, such warrants may also be invalid.
[106] Be that as it may, in the light of the view I have
of the matter, it is unnecessary to reach a final conclusion on the
validity
of the warrants as, for a number of reasons, it is an issue
of no relevance.
(a) First, what counsel for the appellant did not
mention when relying upon
Motsasi
,
is that the court in that matter went on to hold that where a person
is being detained under a judge's order, such detention does
not
become unlawful merely because there is not a valid warrant of
detention.
13
That conclusion must surely be correct. The lawfulness
of the detention flows from the court’s order not the manner of
detention.
14
An error in the completion of a warrant, which might
visit it with invalidity, cannot override the order of a judge. Thus
even if
the warrants were invalid (and my prima facie view is that
they were) this did not result in Van Rooyen and Gouws being held
unlawfully
in custody.
(b) Moreover, even if the warrants were valid, they
operated only until Van Rooyen and Gouws were returned to the high
court on
3 May 2006, and were then discharged. They could not, and
did not, direct the head of the prison to detain them thereafter. It
is not suggested that either Van Rooyen and Gouws escaped from the
C-Max prison during the currency of the warrants - in fact as
set out
below, they escaped during the course of the court's lunch
adjournment.
(c) Inspector Etsebet, who was at court on the day of
the escape, testified that there are police cells at the high court
to hold
persons in custody. As appears from the definition of prison
in
s 1
of the
Correctional Services Act quoted
above, such a cell or
lock-up is regarded as being a prison ‘for the purposes of
s115
and117’. Those sections relate to escaping and aiding escapes,
and visit certain conduct with criminal liability. Accordingly
it is
only if a person commits an offence under those sections (eg by
escaping or aiding and escape) that for that limited purpose
the cell
or lock-up is to be regarded as a prison. As it would not otherwise
be regarded as a prison (ie if no such unlawful conduct
occurs) it is
not necessary for a person to be detained in a cell lock-up under a
warrant as envisaged by
s 6(1).
In addition, the various provisions
of the latter section – which, inter alia, require that as soon
as possible on admission
the prisoner be given a bath or shower,
undergo a health examination and be provided with the written
information relating to various
rules and disciplinary requirements –
are all requirements clearly intended to apply only where a prisoner
is taken up in
a prison as defined and not merely held for a while in
a police cell or lock-up. This too indicates that the requirement of
a warrant
does not apply when persons are held in police cells at
court.
[107] Consequently, when Van Rooyen and Gouws were
returned to the high court on 3 May 2006, the police were entitled to
hold them
without a specific warrant. And as they escaped after their
return, the debate on the validity of the warrants issued the
previous
day, but discharged, is thus irrelevant. For present
purposes I am prepared to accept that they were lawfully in police
custody,
but this does not mean that the State has proved that the
appellant committed an offence by harbouring them after their escape
which, for the reasons set out by Seriti JA in his judgment, I accept
the appellant clearly did.
[108] As I have said,
s 115
makes it an offence to
harbour an escaped ‘prisoner’. This is in
contradistinction to
s 117
which makes it an offence for ‘any
person’ to escape from custody (as Van Rooyen and Gouws appear
to have done). While
a person in custody is commonly referred to as a
‘prisoner’, that cannot be the case here where the word
can only have
the meaning ascribed to it by the legislation. By
definition, a ‘prisoner’ must be a person in custody as
that is an
element of the definition. But the converse is not
necessarily the case. The definition of prisoner also requires him or
her to
be ‘detained . . . in any prison or who has been
transferred in custody or is on route from one prison to another
prison’.
There may be many people who are in custody who, by
reason of this further requirement not having been satisfied, are not
prisoners
as defined. But
s 115
does not make it an offence to
harbour ‘any person’ who escapes from custody – it
relates solely to the harbouring
of escaped prisoners, and as it is a
provision which creates a criminal offence it is to be strictly
construed. An ‘escaped
prisoner’ under
s 115
therefore
cannot be interpreted as meaning ‘any person who escapes’
as envisaged in
s 117
– the latter having a far wider
connotation.
[109] The issue is thus not whether the appellant
harboured any people who had escaped from custody. To secure a
conviction the
State had to prove that Van Rooyen and Gouws were
prisoners who had escaped from a prison. But as Van Rooyen and Gouws
had absconded
from court, the State had to fall back on the provision
in the definition of prison that for the purposes of
s 115
every
place used as a police cell or lock-up is to be regarded as a prison.
In order to succeed on this issue, it was incumbent
on the State to
show that the escape had been made from a police cell lock-up at the
court. Without doing so the State would have
failed to prove an
essential element of an offence under
s 115
(e).
[110] It is on this issue that the State’s case
flounders. The only evidence in regard to the escape was that of
Superintendent
Vreugdenburg and Inspector Etsebet who both tersely
stated that Van Rooyen and Gouws were present when court adjourned at
12h45
on 3 May 2006 but were missing at 14h00 when court reconvened.
Apart from implying that Van Rooyen’s sister, who worked as
a
stenographer in the court building may have assisted as she knew the
layout of the building, Vreugdenburg gave no further evidence
in
regard to how or from where the escape was made. It seems improbable
that if Van Rooyen and Gouws did escape from a cell or
lock-up,
Vreudenburg would not have mentioned it. It may well be that Van
Rooyen and Gouws were left unattended at some stage and
took
advantage of that state of affairs to make good their escape. Indeed,
according to the hearsay evidence of Etsebet they escaped
between the
court and the cells where they did not arrive to take their meal But
quite what happened, one does not know. However,
the one thing the
State did not prove is that their escape was effected from a cell or
a lock-up. In addition, if they escaped
while in the courtroom (which
in my view is clearly not a prison) or even on their way from there
to the cells, I do not see how
that can be construed as having
occurred while they were being ‘transferred in custody or
(were) en route from one prison
to another prison’ as set out
in the definition of prisoner. The clause ‘from one prison to
another prison’ clearly
qualifies both the transfer in custody
and
the en route
requirement, and bearing in mind the necessity to construe that
provision strictly, I cannot accept that the escapees
were on their
way from one prison to another either while in court or when on their
way to the cells, even if those cells are to
be regarded as a prison.
[111] Accordingly, in my judgment, the State did not
establish that Van Rooyen and Gouws were prisoners as defined at the
time that
they escaped and, that being so, it failed to prove that
the appellant harboured escaped prisoners. At the most the State
proved
that he had harboured persons who had escaped from custody,
but that was not an offence under
s115
with which he was charged. It
therefore failed to prove any of the offences levied against the
appellant in its indictment, and
his convictions and sentences must
be set aside.
[112] I am aware that I have reached this conclusion by
way of a point not argued by counsel for the appellant. But whether
Van
Rooyen and Gouws were prisoners as defined has always been a live
issue. That they were not prisoners at the material time was not
a
defence which the appellant was obliged to raise. It was at all times
incumbent upon the State to prove every fact necessary
to prove the
guilt of the appellants and, to do so, it had to prove that the
escape had been made at a time when Van Rooyen and
Gouws were
prisoners. The defence attempted, unsuccessfully, to show that they
had not been prisoners as they were not in lawful
custody due to the
alleged defects in the warrants, but that did not absolve the State
from having to prove the other facts necessary
to show that they were
prisoners within the ambit of the definition. Nor did the failure of
the appellant’s counsel to raise
the issue at the trial alter
that situation. The defence was not called on to challenge the
State’s evidence which merely
established the approximate time
of the escape, and no more. There was thus no obligation to challenge
any aspect of the State’s
evidence in regard to the escape, and
there was no obligation on the defence to point out to the
prosecution the hiatus in its
case. As was observed by the
Constitutional Court in
S v Molimi
[2008] ZACC 2
;
2008
(2) SACR 76
(CC) para 40:
‘
There is no obligation on the
defence to assist the prosecution in the execution of its duties and
the advancement of its case.
If that was so, an unwarranted burden
would be imposed on the accused who has to contend with the
allegations levelled against
him or her.’
[113] In these circumstances, not only is there no room
for the State to have assumed that the defence accepted that Gouws
and Van
Rooyen were prisoners at the time they escaped, but there can
be no question of the State having been prejudiced by the failure
of
the defence to raise the issue. The duty of an appeal court is to
consider whether the trial court reached the correct conclusion
on
the evidence led before it and, in doing so, to consider any legal
issue which is relevant. Whether the proven facts establish
the
commission of the crime with which an accused is charged is clearly a
question of law,
15
and it would lead to an ‘intolerable situation’
if this court was bound to confirm a decision that is ‘clearly

wrong’.
16
As raising this legal issue on the evidence led can
cause no prejudice to the State, and as the liberty of the subject is
involved,
the issue is one which this court can raise
mero
motu
.
[114] I must express my disquiet about this outcome. I
gravely suspect that the appellant was guilty of a criminal offence
by harbouring
the two escapees. However, the prosecution appears to
have been distracted by the futile exercise of trying to link him to
the
escapees’ notes of their plans for violent insurrection
and, possibly as a result, lost focus of the essential elements it

had to prove to establish criminal liability on the appellant's part.
But whatever my suspicions may be, the State was required
to prove an
offence beyond a reasonable doubt and, in my view, it failed to do
so. If the appellant was in fact guilty of any offence,
the State has
only itself to blame.
[115] My conclusion in regard to the merits of the
convictions renders it unnecessary to deal with any further issues
raised. For
the sake of completeness, I should mention that my prima
facie view in regard to whether the trial court misdirected itself is
that the issue of how long the police had been keeping the
appellant's farm under observation before 13 January 2007 was not
privileged
and Vreugdenburg ought to have been directed to answer the
questions put to him in this regard. On the other hand, I doubt that

this gave rise to an unfair trial. No further comment on this is
required.
[116] For the reasons set out above, I would uphold the
appeal and set aside the appellant's convictions and sentences.
___________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: GC Muller SC
Instructed by:
Boonzaaier & Du Plessis Attorneys, Rietfontein
For Respondents: AG Janse van Rensburg
The National Prosecuting Authority, Pretoria
1
Section
54(4) of the Internal Security Act provided:
‘
Any person who has reason to suspect that any
other person intends to commit or has committed any offence referred
to in subsection
(1), (2) or (3) and any person who is aware of the
presence at any place of any other person who is so suspected of
intending
to commit or having committed such an offence, and who–
harbours or conceals that other person;
…
fails
to report or cause to be reported to any member of the police such
presence of that other person at any place, as the case
may be,
shall be guilty of an offence and liable on conviction to the
penalty to which the person whom he so harboured or concealed
or to
whom he so rendered assistance or whose presence he so failed to
report or cause to be reported would have been liable
on conviction
of the offence which the last mentioned person intended to commit or
committed, as the case may be’.
2
Set
out in s 1 of the Terrorism Act.
3
In
s 1 of the Terrorism Act.
4
This
is my translation of the indictment which was written in Afrikaans.
5
Reportedly
the comment of a judge in a federal appeal court in the United
States – see
http://www.abajournal.com/news/article/7th_circuit_slaps_lawyer_for_unintelligible_writing_full_of_gibberish
.
6
Para
57 above.
7
I
quote the written argument.
8
NDPP
v Moodley
2009 (2) SA 588
(SCA) paras 12-13.
9
De
Vries v The State
[2011] ZASCA 162
paras 33-36.
10
By
way of
s 77
of the
Correctional Services Amendment Act 25 of 2008
.
11
S
ee
in this regard
S v Motsasi
1998 (2) SACR 35
(W) at 53
h
-54
i
.
12
At
56j-57h.
13
At
58c-f.
14
Cf
Minister of Justice and Constitutional
Development & another v Zealand
2007
(2) SACR 401
(SCA) para 19.
15
Magmoed
v Janse van Rensburg & others
[1992] ZASCA 208
;
1993 (1) SA 777
(A) at
807I-808A .
16
See
Alexkor Ltd v Richtersveld Community
2004 (5) SA 466
(CC) at
para 43 and
Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at 23H-24G.