Bogaards v S (CCT 120/11) [2012] ZACC 23; 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC) (28 September 2012)

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[2012] ZACC 23
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Bogaards v S (CCT 120/11) [2012] ZACC 23; 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC) (28 September 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 120/11
[2012] ZACC 23
In the matter between:
JACOBUS BOGAARDS
......................................................................................
Applicant
and
THE STATE
.....................................................................................................
Respondent
Heard on : 3 May 2012
Decided on : 28 September 2012
JUDGMENT
KHAMPEPE J (Yacoob ADCJ, Cameron J, Froneman J, Skweyiya J and Van
der Westhuizen J concurring):
Introduction
This
is an application for leave to appeal against a decision of the
Supreme Court of Appeal.
1
The applicant was convicted and sentenced to an effective three
years’ imprisonment under the Protection of Constitutional

Democracy Against Terrorist and Related Activities Act (Terrorism
Act)
2
in the Modimolle Regional Magistrates’ Court (trial court).
The conviction and sentence were confirmed by the North Gauteng

High Court, Pretoria (High Court). The Supreme Court of Appeal set
aside the conviction and sentence under the Terrorism Act
and
instead convicted the applicant on the alternative charge, under
the Correctional Services Act (CSA),
3
and imposed a heavier sentence of five years’ imprisonment.
This case raises important questions about the proper

interpretation of the CSA, the right to a fair trial in terms of
section 35(3) of the Constitution and the procedure that should
be
adopted by appellate courts when imposing sentences heavier than
those imposed by trial courts.
Background
During
2002, a number of people – including Mr Herman Van Rooyen (Mr
Van Rooyen) and Mr Jan Rudolph Gouws (Mr Gouws) (the
escapees) –
were arrested on several charges. These charges included terrorism,
murder and sabotage under section 54(1)
of the Internal
Security Act.
4
They were tried in what became known as the “Boeremag trial”.
During the course of the trial, the escapees were
detained at the
Central Prison, Pretoria.
On 3
May 2006, the trial adjourned at 12h45, at which time the escapees
were present in the courtroom. However, when the trial
resumed at
14h00, it was discovered that they were missing and despite a
search of the court building and the setting up of
road blocks,
they could not be found.
A
countrywide search was conducted. Media statements were issued,
photographs of the escapees were released to the media, a
helpline
was set up, Interpol was contacted for assistance, and the
escapees’ bank accounts were monitored.
The
applicant and his wife live on a farm in the Modimolle area. On
22 October 2006, police officers searched their
property
for the escapees. Despite conducting a thorough search of the house
and surrounding buildings, the police could neither
find them nor
detect any trace of their presence. Before departing, the police
warned the applicant that he should not allow
the escapees to stay
on his farm and the applicant denied any knowledge of them.
On
13 January 2007, the police searched the applicant’s farm.
They found a number of items that indicated that the escapees
had
been present on the farm, including a motorbike registered to Mr
Van Rooyen and a tent site, 500 metres from the farmhouse,

containing clothes, a firearm and other equipment belonging to the
escapees. The applicant and his wife were arrested.
5
On
12 July 2007, the applicant and his wife appeared in the trial
court. They were charged with contravening sections 11 (count
1)
and 12(1)(b) (count 2) of the Terrorism Act.
6
In the alternative, they were charged with contravening section
115(e) of the CSA.
7
The
trial court convicted the applicant and his wife on counts 1 and 2.
On count 1, the applicant was sentenced to five years’

imprisonment, two years of which were suspended on certain
conditions. On count 2, the applicant was sentenced to one year

imprisonment, which was ordered to run concurrently with the
sentence imposed in respect of count 1.
8
In other words, the applicant was sentenced to an effective
custodial sentence of three years.
On
appeal, the High Court set aside the conviction and sentence of the
applicant’s wife, but dismissed the applicant’s
appeal
and confirmed the conviction and sentence imposed by the trial
court.
9
Aggrieved by this decision, the applicant applied for, and was
granted, leave to appeal to the Supreme Court of Appeal. The
State
did not cross-appeal against the sentence.
The
Supreme Court of Appeal handed down four judgments. Seriti JA would
have dismissed the appeal in its entirety. The remainder
of the
Court, in separate judgments by Maya JA, Leach JA and Mthiyane JA,
upheld the appeal against the conviction and sentence
under the
Terrorism Act because they found that the Terrorism Act could not
be deemed to operate retrospectively.
10
However, they disagreed on whether the applicant could be convicted
on the alternative charge, under the CSA. Leach JA held
that he
could not and would have upheld the appeal in its entirety,
acquitting the applicant of all charges. The majority,
Mthiyane JA,
Maya JA and Mhlantla JA, convicted the applicant, instead, under
the alternative charge of contravening the CSA
in two separate
judgments: one by Maya JA, concurred in by Mhlantla JA, and the
other by Mthiyane JA.
The
debate on whether the applicant could be convicted under the CSA
revolved around whether he was a prisoner who had escaped
from a
prison as defined in the CSA.
11
All the judges, except for Seriti JA, rejected the applicant’s
argument that the escapees could not be considered “prisoners”

under the CSA because they were unlawfully detained by virtue of
the warrants for their detention being invalid. They agreed
that
the lawfulness of the detention flowed from the court order rather
than the warrants.
There
was, however, disagreement over whether the escapees could
otherwise be considered “prisoners” under the CSA
due
to the uncertainty regarding how the escapees fled. It was held
that a person’s detention is lawful by virtue of
a court
order, and the warrants, in this context, were no more than an
administrative means of proving to the correctional
services
authorities that the person they are asked to receive is lawfully
in custody.
12
Maya
JA, in whose judgment Mhlantla JA concurred, held further, unlike
Leach JA, that the uncertainty regarding how the
escapees fled
was not fatal to the State’s case. She found that the
escapees could either have escaped (i) from the detention
cells or
(ii) between the court room and the detention cells. In her
analysis, under either of these scenarios, the escapees
remained
“prisoners” who had escaped from a “prison”
as defined in the CSA.
13
The ordinary meaning of “prison” in the Act is
expansive and would necessarily include detention cells within a

court building which would mean that the escapees were “prisoners”
under scenario (i).
14
She found, further, that the portion of the definition of
“prisoner” which referred to “any person . . .

who is being transferred in custody” would necessarily cover
scenario (ii). She accordingly held that the applicant was
guilty
under the alternative charge.
15
Mthiyane
JA concurred in the order of the majority, but found that the sole
issue for determination on appeal was whether the
warrants, under
which the escapees were held at the time of the escape, were
invalid. He held that the issue on which Maya
and Leach JJA
disagreed, whether or not the escapees were “prisoners”
under the CSA at the time of their escape,
was never raised by
either of the parties and was not the basis on which the case was
conducted at the trial.
16
The State may have conducted its case differently had it been
alerted to this issue earlier and an appellate court should not

therefore have proceeded on this basis because it may have resulted
in unfairness to one side.
Leach
JA held that the State had failed to prove that the escapees were
“prisoners” who had escaped from a “prison”

and therefore found that the applicant could not be convicted on
the alternative charge under the CSA. The offence under section

115(e) of the CSA, he reasoned, applies only to the harbouring of
“prisoners” which under that Act, are (i) persons
in
custody (ii) who are “detained . . . in any prison or who
[have] been transferred in custody or [are] en route from
one
prison to another prison”. While the escapees were persons in
custody, the State had failed to prove that they satisfied
the
second of these requirements. Because the escapees had absconded
from court, the State had to fall back on the provision
in the
definition of prison that, for the purposes of section 115, every
place used as a police cell or lock-up is to be regarded
as a
prison. The State had not shown that the escape had been effected
from a cell or a lock-up. Leach JA, further, read the
“transferred
in custody” and “en route” requirements as both
being qualified by the “from one
prison to another prison”
clause. The State had not shown that the escapees were on their way
from one prison to another
prison while in court or on their way to
their cells as the court is, in his understanding, clearly not a
prison.
17
The
majority took several factors into account in considering an
appropriate sentence, including: the applicant’s personal

circumstances; the gravity of the transgressions; the applicant’s
defiance of police warnings not to provide the escapees
with
shelter; the resources expended in the search for the escapees; and
the applicant’s lack of remorse. The Court found
that “a
substantial custodial sentence [was] the only appropriate
punishment”
and imposed a five-year prison term.
18
Leave to Appeal
Before
I can address the substantive issues, I must first determine
whether leave to appeal should be granted. Leave should
be granted
when an application raises a constitutional matter or an issue
connected with decisions on constitutional matters
and when it is
in the interests of justice to do so.
19
The
application before us raises a number of constitutional issues of
significance. First, we are called upon to determine the
proper
interpretation of section 115(e) of the CSA, in particular, whether
the term “prisoner” can only refer to
a person detained
under a valid warrant of detention and whether the definition of
“prisoner” includes a person
in or on the way to or
from a court holding cell. This question implicates the
section 12(1)(a) constitutional right of
detained persons and
prospective detainees.
20
Second, we must determine whether the procedure adopted by the
Supreme Court of Appeal in effectively increasing
21
the applicant’s sentence was fair – more specifically,
whether the applicant’s right to a fair trial under
section
35(3) was infringed by that Court’s failure to notify him
that it was considering an increase in sentence. In
stating that
there was an effective increase in sentence, I mean an increase in
the number of years an applicant will spend
in prison.
22
In
deciding whether it is in the interests of justice to grant leave,
we must consider: the right to a fair trial of accused
persons
under section 35(3) of the Constitution; the importance of the
issues raised; and the application’s prospects
of success.
23
The
interpretation given by this Court to the CSA raises vital
constitutional issues, as discussed above. First, the applicant’s

argument that the lawfulness of detention is dependent on the
validity of the warrants has serious consequences for the

administration of criminal justice in our courts, particularly how
and when warrants must be issued. It is apparent that in order
to
ensure the protection of the section 12(1) rights of detainees, the
law must be clear on what requirements must be satisfied
for a
person’s detention to be lawful.
Second,
the right of accused persons to a fair procedure on appeal is
implicated in this matter. The failure of the Supreme
Court of
Appeal to afford the applicant notice of a possible increase in
sentence calls into consideration what our constitutional
right to
a fair trial demands, in terms of procedure, from our appellate
courts. This is an issue of importance and one in
which the
application shows prospects of success.
In
the result leave to appeal must be granted.
Substantive Issues
This
case raises the following substantive issues—
(i) whether a conviction under the CSA for harbouring escaped
“prisoners”
24
is competent in this case, more specifically, whether a valid
warrant is necessary for a person to be considered a “prisoner”

under the CSA; and whether the definition of “prisoner”
includes a person in or on the way to or from a court holding
cell;
and
(ii) whether, in the circumstances of this case, the Supreme Court
of Appeal’s consideration of an effective increase in

sentence, without notice to the applicant, infringed his right to a
fair trial; and if so,
(iii) whether the common law ought to be developed in order to be
aligned with the rights in the Constitution by giving formal

recognition to the practice of giving notice when an appellate court
considers an increase in sentence.
Were the escapees “prisoners” under the CSA?
Section
115 of the CSA provided in relevant part:
25
“
Any
person who—
(e) 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.”
The
CSA defined a “prisoner” as—
“
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”.
There
are two objections to finding that the escapees were “prisoners”
under the CSA, and therefore that the applicant
could be convicted
under section 115(e) of harbouring an escaped “prisoner”.
The first, which was the point of
disagreement between Maya and
Leach JJA in the Supreme Court of Appeal, is that the lack of
evidence regarding how the escapees
fled means that it cannot be
said that they were “detained in custody” or “being
transferred in custody or
[were] en route from one prison to
another prison” at the time of the escape. The second is that
the escapees could not
be considered “prisoners”
because their detention was unlawful by virtue of the warrants for
their detention being
invalid.
I
will deal with the first of these objections only briefly –
this is because at the hearing, counsel for the applicant
conceded
that he agreed with paragraph 17 of Maya JA’s judgment
in which she said—
“
Given
its general, ordinary meaning, the wording of the expansive
definition of ‘prison’ [in the CSA] 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. 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’. 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.”
26
(Citations omitted.)
It
is clear, therefore, that this objection has been abandoned by the
applicant. I will say no more than to endorse the opinions

expressed and the interpretation adopted by Maya JA.
In
relation to the second objection, Maya, Mhlantla, Leach and
Mthiyane JJA in the Supreme Court of Appeal were all in agreement

that the argument regarding the validity of the warrants should
fail.
The
applicant argues that section 6(1)(a) makes a valid warrant of
detention a pre-requisite for a person to be considered a

“prisoner” under the CSA. Section 6(1)(a) provides that
a person “may not be committed to a prison without
a valid
warrant for his or her detention.” The applicant disputes
that the escapees were held in terms of valid warrants.
These
warrants were issued by the police and not by a properly authorised
official as required by section 34(1) of the Supreme
Court Act.
27
As a valid warrant is a requirement for lawful custody, the
applicant contends that the escapees do not fall within the

definition of “prisoner” under the CSA.
The
State argues that a valid court order is sufficient for lawful
detention as incarcerated people are defined as “prisoners”

by virtue of the court order, not the detention warrants.
Therefore, the court order issued by the High Court on 26 July

2004, which denied the escapees bail, was superior to the
warrants.
28
Neither the definition of “prisoner” nor “prison”
in the CSA requires detention to be in terms of a
valid warrant.
Thus, section 6 is not a restriction on the general definition of
“prisoner”, but contains a set
of procedures that
should be followed once a prisoner has been admitted to a prison to
prevent unlawful
detention
. The State
submits that the validity of the detention warrants is irrelevant
as they ceases to operate once a prisoner has
been delivered to
court. From that moment, prisoners are detained in terms of the
court order only, until new warrants of detention
are issued.
Assuming,
without deciding, that the warrants were invalid, I cannot agree
with the applicant and am of the opinion that the
escapees were
lawfully detained and therefore should be considered “prisoners”
under the CSA. This conclusion is
informed by several
considerations.
First,
an order of court, rather than a detention warrant, is the legal
basis for a person’s incarceration. I agree with
Maya JA’s
conclusion that the warrant, in this context, is merely “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”.
29
Second,
the roles played by the court order and the warrant are not altered
when regard is had to section 6(1)(a) of the CSA.
30
Section 6(1)(a) is merely an instruction to the head of a prison –
not a qualifier as to who should be considered a “prisoner”

under the Act.
This
conclusion is strengthened when section 6 is read in context. It is
part of the Chapter entitled “Custody of all
prisoners under
conditions of human dignity”, in a sub-section called
“General requirements”. This Chapter
sets out the
conditions under which prisoners must be kept, including the proper
approach to safe custody, accommodation, nutrition,
hygiene and
health care. Section 6 instructs the authorities as to what actions
to take during, and immediately subsequent
to, admitting a person
into a prison.
31
While these instructions are important requirements to safeguard
prisoners’ rights, the suggestion that non-compliance
with
any of these would result in an incarcerated person no longer being
considered a “prisoner” under the CSA
cannot be
correct.
Third,
the applicant’s construction would result in several absurd
consequences.
32
It leads to, at least, the following conclusions: that warrants
would need to be reissued during all court adjournments, including

tea and lunch, and, as claimed by the applicant, the head of a
prison could ignore a court order remanding a person to detention

if there were no accompanying valid detention warrant. Ineluctably,
the efficacy of the administration of the criminal justice
system
requires that the lawfulness of detention depends on the order of a
court rather than the validity of a warrant.
A
warrant serves an important protective purpose in that it guards
against unlawful detention. However, it is the court order,
not the
warrant, that is the legal basis for a person’s detention and
it cannot be that where the warrant is defective,
detention
necessarily becomes unlawful. The applicant’s appeal in
respect of his conviction under section 115(e) of the
CSA must,
therefore, fail. The Supreme Court of Appeal rightfully considered
the escapees to be “prisoners” under
that Act. I will
now consider the issue of sentence.
Sentence
As
already stated,
33
when the Supreme Court of Appeal set aside the convictions under
the Terrorism Act, it also set aside the sentence imposed
by the
trial court of effectively three years’ imprisonment –
which was appurtenant to those convictions
34
– and imposed a longer effective custodial sentence of
five years.
The
applicant correctly acknowledges that the Supreme Court of Appeal
is empowered to set aside a sentence and impose a new
sentence,
even a more severe one.
35
His complaint, simply put, is that the Supreme Court of Appeal
imposed a heavier sentence than that imposed by the trial court

without giving notice of the possible increase. He argues that a
“salutary rule” has developed that where a court
is
prima facie of the view that a sentence should be increased on
appeal, it will notify the appellant in advance. The applicant

further contends that the right to a fair trial includes the right
of appeal and that the appeal must also be subject to

considerations of fairness. My understanding of the nub of the
applicant’s argument is that the Supreme Court of Appeal

infringed his right to a fair trial and, in particular, his right
of appeal as envisaged by section 35(3)(o) of the Constitution
36
when that Court imposed a heavier sentence of five years, without
affording him adequate notice that it was considering doing
so.
The
State submits that the Supreme Court of Appeal did not increase a
previously imposed sentence and that it was entitled to
impose the
sentence that it did, since it was sentencing afresh. Furthermore,
the State posits that while there exists a certain
practice of
notifying the parties if a court is considering an increase in
sentence, this is not a rule. In addition, it cannot
be argued that
the applicant did not have a fair trial before the Supreme Court of
Appeal because the question of an appropriate
sentence was fully
argued before that Court. Absent any other constitutional
principle, so it argues, the question of sentence
is not a
constitutional matter and this Court has no jurisdiction to decide
on the appropriateness of the sentence.
Ordinarily,
sentencing is within the discretion of the trial court. An
appellate court’s power to interfere with sentences
imposed
by courts below is circumscribed.
37
It can only do so where there has been an irregularity that results
in a failure of justice;
38
the court below misdirected itself to such an extent that its
decision on sentence is vitiated;
39
or the sentence is so disproportionate or shocking that no
reasonable court could have imposed it.
40
A court of appeal can also impose a different sentence when it sets
aside a conviction in relation to one charge and convicts
the
accused of another.
The
State is correct that, absent any other constitutional issue, the
question of sentence will generally not be a constitutional
matter.
It follows that this Court will not ordinarily entertain an appeal
on sentence merely because there was an irregularity;
there must
also be a failure of justice.
41
Furthermore, this Court does not ordinarily hear appeals against
sentences based on a trial court’s alleged incorrect

evaluation of facts.
42
For instance, this Court will not, in the ordinary course, hear
matters in relation to sentence merely because the sentence
was
disproportionate in the circumstances. Something more is required.
It is evident that this matter involves important constitutional

questions in relation to whether the Supreme Court of Appeal failed
to meet the requirements of the substantive notion of fairness

encapsulated in section 35(3) of the Constitution by effectively
increasing the applicant’s sentence without giving him
prior
notice that it was considering an increase in sentence,
43
and whether the common law ought to be developed in order to give
formal recognition to the practice of giving notice when

considering an increase in sentence. It is these constitutional
issues which seize this Court with the requisite jurisdiction.
In
Jaipal
irregularities were neatly
described as deviations from “what one would regularly expect
in a properly conducted criminal
trial. They deviate from the norm
and ought not to happen.”
44
But not all irregularities amount to a failure
of justice. The term failure of justice must be understood in the
constitutional
era as an unfair trial.
45
Therefore, what needs to be determined is
whether the failure to inform the appellant of the possibility of
an increase in sentence
on the alternative charge is an
irregularity that resulted in an unfair trial.
When evaluating whether the proceedings in the Supreme Court of
Appeal were unfair, this Court must not merely examine the
law as
it stands, in other words, that there is a practice of giving
notice rather than a rule. This is because, as will be
demonstrated
below, the right to a fair trial under the Constitution has a
normative component which requires courts not merely
to follow
existing rules of procedure but to conduct proceedings in a
substantively fair manner. Thus, the fact that at common
law there
was no notice requirement does not necessarily excuse an appeal
court from failing to give the accused person notice
of its
intention to increase sentence. In addition, it is incumbent on
this Court to determine whether the common law as it
stands is
deficient, and if so whether it should be developed.
As
will be demonstrated below,
46
at common law there is today no formal requirement for an appeal
court to give an accused person notice where that court is

considering an increased sentence on appeal. This lack of any
formal notice requirement falls short of what is required in
the
constitutional era. Given the importance of the notice practice in
giving effect to the right to a fair trial, and in particular
the
right of appeal in section 35(3)(o),
47
this Court is obliged to develop the common law and elevate the
notice practice to a requirement.
It
will be instructive to begin with a brief outline of the general
principles relating to the development of the common law.
Then I
examine the nature of the right to a fair trial as provided for in
section 35(3) of the Constitution. I then set out
the common law
practice of giving notice, paying particular attention to the
underlying right that the practice aims to protect.
Finally, I
examine the relationship between the right of appeal, one of the
components of the right to a fair trial enumerated
in section
35(3)(o), and the practice of giving notice in light of the
principle of substantive fairness.
Developing the common law
Section
8(1) of the Constitution provides that the Bill of Rights applies
to
all law
in South Africa, which includes the common law.
48
It binds all branches of the State, including the judiciary. There
is no law or conduct that is exempt from being tested against
the
Constitution. Any law that is inconsistent with a right in the Bill
of Rights must be declared invalid.
49
Hence, all conduct of the judiciary, including the manner in which
the common law is interpreted by judges, must be harmonious
with
the Constitution. Section 173 of the Constitution grants inherent
power to the Constitutional Court, the Supreme Court
of Appeal and
the High Courts “to develop the common law, taking into
account the interests of justice.” Taken
together, these
provisions oblige the courts to develop the common law where it is
inconsistent with the Constitution. Once
these provisions have been
engaged, section 39(2) then gives the court guidance on how the
common law should be developed in
order best to give effect to the
right that has been infringed.
50
That is to say, section 39(2) makes it plain that, when developing
the common law, a court is obliged to “promote the
spirit,
purport and objects of the Bill of Rights.”
When
developing the common law, a court needs first to ascertain that
the right relied upon is applicable to the law or conduct
that has
given rise to the dispute. Then the court must determine whether
the common law is deficient in failing adequately
to protect the
right.
51
If there is no legislation or common law rule giving effect to the
right, a court is enjoined to develop the common law in
order to do
so. I begin by examining the right to a fair trial.
The right to a fair trial
In
this case, the right relied upon is the right to a fair trial as
articulated in section 35(3) of the Constitution. Section
35(3)
sets out, in a non-exhaustive list, the components of the right to
a fair trial. It provides:
“
Every
accused person has a right to a fair trial, which includes the
right—
(a) to be informed of the
charge with sufficient detail to answer it;
(
b)
to have adequate time and facilities to prepare a defence;
(c) to a public trial before an
ordinary court;
(d) to have their trial begin
and conclude without unreasonable delay;
(e) to be present when being
tried;
(f) to choose, and be
represented by, a legal practitioner, and to be informed of this
right promptly;
(g) to have a legal
practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would
otherwise result, and
to be informed of this right promptly;
(h) to be presumed innocent, to
remain silent, and not to testify during the proceedings;
(i) to adduce and challenge
evidence;
(j) not to be compelled to give
self-incriminating evidence;
(k) to be tried in a language
that the accused person understands or, if that is not practicable,
to have the proceedings interpreted
in that language;
(l) not to be convicted for an
act or omission that was not an offence under either national or
international law at the time
it was committed or omitted;
(m) not to be tried for an
offence in respect of an act or omission for which that person has
previously been either acquitted
or convicted;
(n) to the benefit of the least
severe of the prescribed punishments if the prescribed punishment
for the offence has been changed
between the time that the offence
was committed and the time of sentencing; and
(o) of appeal to, or review by,
a higher court.”
The
importance of the right to a fair trial cannot be overstated. In
Jaipal
52
this Court stated:
“
T
he
basic requirement that a trial must be fair is central to any
civilised criminal justice system. It is essential in a society

which recognises the rights to human dignity and to the freedom and
security of the person,
and
is based on values such as the advancement of human rights and
freedoms, the rule of law, democracy and openness. The importance

and universality of the right to a fair trial is evident from the
fact that it is recognised in key international human rights

instruments.”
53
(Footnotes
omitted.)
In
our law, the understanding of what constitutes a fair trial is
flexible, its constitutive components being informed by the
values
that underlie our Constitution.
54
It is trite that the right to a fair trial embraces substantive
fairness
55
and one need not emphasise that trials are required to be conducted
in accordance with general open-ended notions of justice.
56
Furthermore, all courts are enjoined to ensure that an appellant’s
right to a fair trial is protected.
57
The
requirement of fairness that underpins the right to a fair trial
under section 35(3) demands that an accused person must
be informed
if an appellate court contemplates imposing a higher sentence than
the one appealed against. In this case, failure
to do so
constituted an infringement of the right of appeal under section
35(3)(o) of the Constitution.
Our
jurisprudence indicates that an irregularity is “an irregular
or wrongful deviation from the formalities and rules
of procedure
aimed at ensuring a fair trial.”
58
There is no exhaustive list of what constitutes an irregularity.
59
This is because of the open-ended notions of fairness and justice
that underlie our conception of the right to a fair trial
–
what we understand to be a procedural rule aimed at ensuring
fairness will necessarily change over time.
By
contrast, in the pre-constitutional era, our understanding of what
constituted an irregularity was particularly narrow because
a court
was not called upon to consider whether the trial was conducted in
accordance with “notions of basic fairness
and justice”.
60
Rather, it had to consider solely whether there had been a
“departure from the formalities, rules and principles of
procedure according to which our law requires a criminal trial to
be . . . conducted.”
61
This resulted in a more rigid understanding of what deviations
would be considered irregularities. Under our Constitution,
the
approach to the fair trial right, and consequently our
understanding of what constitutes an irregularity, has been
broadened.
The deficiency in the common law
At
common law, the salutary practice of providing notice of a possible
increase in sentence can occur in two scenarios: (1)
where the
court of its own accord (mero motu) is contemplating an increase in
sentence or (2) where the State wishes to apply
for an increase in
sentence.
62
At common law, the State had no formal right to cross-appeal and,
therefore, to ensure that the accused person was not caught
by
surprise, a practice developed of providing notice from the
Attorney-General (now the National Director of Public Prosecutions)

to the accused person regarding the potential increase in
sentence.
63
In cases where the court mero motu was contemplating an increase,
the practice was to provide notice by an “intimation”

from the court.
64
In
1990, the Criminal Procedure Act (CPA)
65
was amended to include section 310A which provides the State
with the right to cross-appeal. Section 310A(3) requires
the
Attorney-General to provide notice to the accused person and this
notice under section 310A(2)(b) must include the
grounds for
the cross-appeal. Therefore, the CPA has effectively formalised the
practice of providing notice in cases where
an increase in sentence
is being sought by the State. By contrast, where an increase is
being contemplated by the court mero
motu, there is at present no
formal notice requirement.
An
important corollary of the notice practice at common law is the
limitation of an accused person’s right to withdraw
an appeal
once notice of an increased sentence has been given. Courts have
repeatedly found that after an accused person is
given notice of a
contemplated increase in sentence, by either the court or the
prosecuting authority, she is barred from withdrawing
her appeal
without leave from the court.
66
To do otherwise would frustrate the court’s right to increase
a sentence under section 309(3) or the Attorney-General’s

right to cross-appeal under section 310A of the CPA.
67
Indeed, as noted by Du Toit—
“
[t]he
power of a court of appeal to increase a sentence would be
completely ineffective if an appellant had an unfettered right
to
withdraw his appeal. If the appellant were to have such a right he
would always be able to prevent the court of appeal from
exercising
its discretion to increase sentence.”
68
This
rule taken together with the notice requirement creates a balance
between the right of the appellant to a fair trial and
the duty of
the court to ensure that the sentence is appropriate and to increase
the sentence when necessary.
69
Since,
at common law, there is no obligation on a court to notify an
appellant if it is considering, mero motu, an increase
in sentence,
it follows that non-compliance with the notice practice has not
been considered an irregularity. In this regard,
the proceedings in
the Supreme Court of Appeal would not at common law have
constituted an irregularity and this Court would
not, therefore, be
entitled to set aside the sentence imposed by that Court. However,
I am of the opinion that: (a) given that
the right to a fair trial
demands court proceedings to be carried out in a substantively fair
manner; and (b) given the purposes
the notice practice seeks to
achieve, this Court is obligated to elevate this practice to a
requirement in order to enable
an accused person to exercise
properly the right of appeal to a higher court under section
35(3)(o) of the Constitution.
The purposes underlying the notice practice and substantive
fairness
In
my view, the notification practice ensures substantive fairness in
two ways. First, by facilitating the informed exercise
of the right
of appeal and, second, by ensuring that the requirements of natural
justice, more specifically, the
audi alteram partem
principle,
are observed.
Facilitation of informed exercise of the right of appeal
When
accused persons exercise their constitutional right of appeal and
appeal against their conviction and/or sentence, they
are
necessarily attempting to improve their legal fate.
70
The exercise of the right of appeal should, therefore, not be
hindered by fear of the possibility of a more severe sentence
being
imposed without having an opportunity to give pointed submissions
on the potential increase. Otherwise, prospective appellants
may
not exercise the right at all. Therefore, an appellant’s
legal position should not be worsened without proper notice,
either
in the form of a cross-appeal, or notice from the appellate court
that it is considering an increase in sentence or
that it proposes
to impose a higher sentence than that imposed by a trial court
consequent upon convicting the appellant of
a different offence.
Where
the State lodges a cross-appeal against sentence, this alerts an
accused person to the possibility of an increase in sentence
and
provides her with a meaningful opportunity to make pointed argument
in regard thereto. In instances where a court is mero
motu
considering an increase, the constitutional right to a fair trial
demands that the accused person should have the benefit
of knowing
what risk she may run into in her quest to ease a pinching shoe by
invoking the appeal process. The accused should
be allowed to
choose whether to run the risk of a sentence increase, attempt to
convince the court to reach the opposite conclusion
by making
adequate representations on why the sentence should not be
increased, or apply to the court for leave to withdraw
her appeal.
71
An
examination of foreign law lends support to the proposition that
the informed exercise of the right of appeal is an important

consideration. In
Parker
, the New South Wales Court of
Appeal discussed what it described as an “established
practice or convention”
72
of informing an appellant when the court has reached a tentative
conclusion that it may impose a punishment more severe than
that
earlier imposed, and therefore of the risk that she faces by
invoking the appellate process.
73
In this regard, I defer to the sentiments expressed by Kirby P:
“
Where
an accused person has exercised an entitlement provided by law to
have a re-adjudication of a criminal conviction and sentence,
it
must be contemplated that Parliament provided that facility to the
intent that normally it would result in the appellant’s
being
in no worse a position than had he or she accepted a conviction and
sentence of the Local Court. Although, necessarily,
such a risk is
run by a procedure which amounts to a complete rehearing, with fresh
(and possibly different) evidence and a new
decision-maker, the
purpose of the appeal is one to afford the accused person a second
opportunity for the consideration of his
case by a judicial officer
more senior in the court’s hierarchy. If the second judicial
officer knows of the penalty imposed
by the first and contemplates a
higher penalty, it is proper to indicate this fact so that the
appellant can consider whether
or not to apply for leave to withdraw
the appeal”.
74
The
objectives served by the practice of notification apply with even
greater force in the South African context where, unlike
Australia,
the right to a fair trial is expressly entrenched in our
Constitution.
The
need for the appellant to be aware of her possible jeopardy, and
also to be given a meaningful and adequate opportunity
to make
submissions to the court on the appropriateness of a sentence
increase or the imposition of a higher sentence upon
conviction of
another offence, are the true bases of the notice practice. This
speaks directly to the notion of natural justice.
Natural justice
Notifying
an appellant that the court is considering an increase in sentence
or the imposition of a higher sentence on conviction
of a different
offence is primarily for the benefit of that appellant.
75
It ensures that the appellant is not taken by surprise at the
hearing and, importantly, gives her a meaningful and adequate

opportunity to make full representations on sentencing and,
specifically, on why the sentence should not be increased or a

higher sentence should not be imposed after conviction on another
offence.
76
This, in turn, ensures that all the relevant information is before
the court in order for a fully informed decision to be made.
Notification
encapsulates the concept of
audi alteram partem
, which, as a
principle of natural justice, forms a foundational part of any fair
procedure. The
audi alteram partem
principle requires that
each party be given a meaningful opportunity to present their
case.
77
Kirby J indicated in the High Court of Australia in
R H McL v
The Queen
78
that in exercising the power to substitute sentences on appeal,
appellate courts are obliged to accord appellants the basic

requirements of a fair procedure. One of the protections guaranteed
by the principle of procedural fairness is the “need
to
afford a person involved an effective opportunity to be heard
before any substituted sentence is passed . . . particularly
where
such sentence might carry the possibility of increasing that
person’s punishment.”
79
Another crucial consideration is that this would avail the State of
a valuable opportunity to make pointed submissions on the
possible
increase in sentence, which may assist the court in arriving at an
informed decision.
Ordinarily,
the nature of submissions that would be made, on the specific point
of whether a sentence should not be increased
or whether a higher
sentence should not be imposed on conviction for another offence,
differ in nature from those that the
appellant would otherwise be
making in mitigation of her sentence. This point is
well-illustrated in
Oliver v The Queen
,
80
where the Privy Council indicated that because specific
considerations relating to a possible increase in sentence are
distinct
from those relating to the imposition of the original
sentence, it is crucial that the appellant, or her counsel, be
given
an adequate and meaningful opportunity to address the
appellate court on point.
81
Further, notice aims to afford the appellant a chance to make
submissions on the specific basis on which a court is considering

an increase in sentence or the imposition of a higher sentence upon
conviction of a different offence.
The lacuna in the common law
Where
an increase is being contemplated by the court of its own accord,
there is at present no formal notice requirement. The
result is
a
lacuna in the common law
by which an accused person will
only be guaranteed to receive notice where a potential increase in
sentence originates with
the State. In my view, the purposes sought
to be achieved by a notice requirement
82
apply regardless of whether the court or the State is proposing an
increase in sentence either because of conviction for a
substituted
offence or because the sentence is considered to be too low.
Therefore, notice ought to be required in both instances.
Indeed,
where the court mero motu chooses to increase sentence or to impose
a higher sentence than the sentence that had been
originally
imposed consequent upon conviction for a substituted offence, the
accused person is less likely to expect an increase
and therefore
to prepare adequately than where the accused person is aware of the
State’s intention to oppose the sentence
by virtue of the
cross-appeal. This gap in criminal procedure justifies this Court’s
development of the common law to
ensure adequate protection of the
right of appeal under section 35(3)(o).
83
The
elevation of the notice practice to a requirement, which gives
effect to the right of appeal, facilitates and maintains
the
integrity of the appeal process and also ensures that there is
parity in the treatment of appellants. Parity, first, between

appeals in which the State has cross-appealed and notice is
required, and appeals in which the court mero motu is considering

an increase in sentence or the imposition of a higher sentence upon
conviction for a substituted offence. Second, it will ensure
parity
between appellants in different cases in which the court is mero
motu considering an increase or the imposition of a
higher sentence
upon conviction for a substituted offence. At present, because the
notice practice is merely a practice at
common law, it may be
followed by some courts and not others. If one is persuaded that an
appellant benefits from the notice
practice at all, then it is
difficult to see how one could endorse an ad hoc system of giving
this benefit to some appellants
but not to others.
It
must be noted that in formalising this notice requirement, this
Court is also
formalising
the corollary
practice of limiting an accused person’s right to withdraw an
appeal once notice of an increased sentence
has been given. In my
view, this must be so in order adequately to balance the rights of
the accused to have notice with the
need for the proper
administration of justice.
84
As this Court held in
Shaik
:
“
It is
clear also that fairness is not a one-way street conferring an
unlimited right on an accused to demand the most favourable
possible
treatment.”
85
Furthermore, in
Jaipal
, this Court referred to the need for—
“
fairness
to the public as represented by the State. It has to instil
confidence in the criminal justice system with the public,
including
those close to the accused, as well as those distressed by the
audacity and horror of crime.”
86
The
consequence of elevating the notice practice to a requirement means
that if a court does not give notice, this will amount
to an
infringement of the right of appeal, which is a component of the
right to a fair trial. This infringement will constitute
an
irregularity.
87
The court will then need to determine whether this irregularity
amounted to a failure of justice which rendered the trial unfair.
It
is worth emphasising that requiring the appellate court to give the
accused person notice that it is considering an increase
in
sentence or imposing a higher sentence upon conviction for a
substituted offence, does not fetter that court’s discretion

to increase the sentence or to impose a substituted conviction with
a higher sentence. The court may clearly do so in terms
of section
22(b) of the Supreme Court Act and section 322 of the CPA.
88
Elevating the notice practice to a requirement merely sets out the
correct procedure according to which the court must ultimately

exercise that discretion. The notice requirement is merely a
prerequisite to the appellate court’s exercise of its

discretion. After notice has been given and the accused person has
had an opportunity to give pointed submissions on the potential

increase or the imposition of a higher sentence upon conviction of
another offence, the appellate court is entitled to increase
the
sentence or impose a higher sentence if it determines that this is
what justice requires.
The proceedings in the Supreme Court of Appeal
The
proceedings in the Supreme Court of Appeal must be evaluated
according to the common law as developed. The general position
in
this regard was stated clearly in
Du Plessis and Others v De
Klerk and Another
:
89
“
In
our Courts a judgment which brings about a radical alteration in the
common law as previously understood proceeds upon the
legal fiction
that the new rule has not been made by the Court, but merely
‘found’, as if it had always been inherent
in the law.
Nor do our Courts distinguish between cases which have arisen
before, and those which arise after, the new rule has
been
announced. For this reason it is sometimes said that ‘Judge-made
law’ is retrospective in its operation.”
90
While
the Supreme Court of Appeal did not increase the applicant’s
sentence in the technical legal sense in which an increase
is
generally understood, it nevertheless effected an increase in
sentence in substance by imposing a higher sentence upon conviction

of another offence.
91
The new rule we have devised covers this situation too.
92
Accordingly,
in effectively increasing the applicant’s sentence without
giving him proper notice that it was considering
an increase, the
Supreme Court of Appeal committed an irregularity. This
irregularity resulted in a failure of justice that
rendered the
trial unfair for at least two reasons.
First,
from the applicant’s point of view, the time he spends in
jail is likely to be much more important to him than
the particular
offence for which he is convicted. The applicant had succeeded in
the Supreme Court of Appeal in appealing against
his conviction
under sections 11 and 12 of the Terrorism Act, which carry maximum
sentences of 15 and 5 years’ imprisonment
respectively. In
its place the applicant was convicted on the alternative charge
under section 115(e) of the CSA, which is
a less serious offence
and for which the maximum sentence is only 10 years.
93
The applicant would have undoubtedly felt a sense of relief upon
receiving the favourable news in the Supreme Court of Appeal
that
his appeal on conviction had partially succeeded because he had
been convicted of a less serious offence. He must have
been
perplexed when the Court surprised him with the news that instead
he would spend more time in jail than if his appeal
had been
unsuccessful.
94
Under these circumstances, by any standard of elemental fairness,
it was reasonable for the applicant to expect a lightening
of his
sentence. Instead, he received a higher custodial sentence for a
less serious offence.
Second,
this outcome is all the more iniquitous when one considers that the
heavier sentence was not requested by the State.
The State did not
cross-appeal nor apply for an increase in sentence and neither did
it argue for this.
95
Therefore, inasmuch as the matter was argued on conviction and
sentence, it was not argued on the exact point of a possible

increase in sentence. The applicant received no notice that the
Supreme Court of Appeal was considering imposing a higher sentence

for conviction on the alternative charge, nor is it evident from
the record that he was put on notice of this possibility by
any
other objective factor.
96
In the circumstances, the applicant had no opportunity to make
representations to the Court on why his sentence should not
be
increased. In this way, the pivotal purposes of the practice were
undermined.
97
Indeed, counsel for the State conceded during oral argument that
the question of an increase in sentence was not argued and
that
what happened in this case was not fair. In my opinion, this was a
concession correctly made.
Conclusion
Given the importance of the right to a fair trial, the substantive
notion of fairness which it embraces and the Supreme Court
of
Appeal’s failure to give notice, which in this case was
particularly infelicitous, there was in this case a failure
of
justice and therefore the appeal was rendered unfair. I
consequently set aside the sentence imposed by the Supreme Court
of
Appeal.
The manner in which courts should give notice
Lastly,
it is apposite for this Court to give some assistance on the manner
in which appellate courts could give notice to an
accused person of
a possible increase in sentence on appeal. If the court forms a
prima facie view before the hearing that
it is considering an
increase in sentence, for instance while reading the record, it
should put the accused person on notice
prior to the hearing. If
the court forms this opinion during the hearing, then it must
formally inform the accused person that
it is considering an
increase and give the accused person sufficient time, subsequent to
the hearing, to make written submissions
on this issue. Finally,
even if the court is contemplating an increase after the hearing it
must formally request the parties
to make submissions on this point
before making its final decision.
Order
The sentence imposed by the Supreme Court of Appeal is set aside
because the applicant’s right to a fair trial was infringed

at the sentencing stage of the appeal. I am minded to remit the
case to the trial court for sentencing as it is ordinarily
the
court best placed to determine an appropriate sentence.
98
In
the circumstances, the following order is made:
1. Leave
to appeal is granted.
2. The applicant’s appeal against his conviction under
section
115(e)
of the
Correctional Services Act 111 of 1998
is dismissed.
3. The applicant’s appeal against the five-year sentence of
imprisonment imposed by the Supreme Court of Appeal is upheld.
4. The case is remitted to the Modimolle Regional Magistrates’
Court for it to impose an appropriate sentence in respect
of the
applicant’s conviction under
section 115(e)
of the
Correctional Services Act 111 of 1998
.
JAFTA AND NKABINDE JJ (Zondo AJ concurring):
We
have read the majority judgment, which dismisses the appeal against
conviction but upholds it against sentence. We agree
that leave to
appeal should be granted and that the appeal against the conviction
on the alternative charge should fail. But
we disagree that the
appeal against the sentence imposed by the Supreme Court of Appeal
should succeed. The majority holds,
on the basis of the common law
as developed by it, that the Supreme Court of Appeal committed an
irregularity that resulted
in a failure of justice.
99
We
do not agree that any irregularity was committed, let alone of the
kind that leads to a failure of justice. In our respectful
view,
and for various reasons to which we later return, the need to
develop the common law does not arise in this matter and
it is not
a proper course to follow.
Before
we articulate our reasons for the findings referred to above, it is
necessary to set out the ground on which the sentence
imposed by
the Supreme Court of Appeal is impugned. It is important to record
at the outset that the applicant did not ask
for the development of
the common law in his founding affidavit, replying affidavit and
written argument. The complaint is
that the applicant’s right
to a fair trial entrenched in section 35(3) of the Constitution
100
was breached, when the Supreme Court of Appeal imposed a sentence
without giving him prior notice to the effect that it contemplated

increasing the sentence imposed by the trial court.
In
the founding affidavit the complaint is framed in these terms:
“
Applicant
was not forewarned that the Supreme Court of Appeal was of the
prima
facie
view that the sentence should be increased if convicted on the
alternative count. It is a long salutary practice to notify the

appellant that the sentence might be increased. The imposition of a
heavier sentence on the lesser offence is disturbingly inappropriate

and induced such a sense of shock that this Honourable Court is
entitled to intervene.
. . .
The Supreme Court of Appeal was
in reality acting as a court of first instance with regard to the
sentence imposed on the alterative
count. The Applicant’s
right to be heard with respect to the sentence was ignored.”
Contradicting
propositions emerge from this formulation of the complaint. First,
the Supreme Court of Appeal is accused of deviating
from practice
by not giving notice that it contemplated increasing the sentence
imposed by the trial court. Second, the applicant
accepts that a
new sentence was imposed following his conviction on the
alternative charge. His complaint in this regard is
that he was
denied a hearing in respect of the sentence that was to be imposed
on the alternative charge. These complaints
are mutually exclusive.
The
applicant concludes by stating:
“
The
right to a fair trial is fundamental to the rule of law. It is in
the interest of justice that Applicant has the right to
put
mitigating factors before a Court where the Court is of the opinion
that the sentence should be increased after setting aside
the
conviction and sentence on the more serious count and the Applicant
is convicted on a less serious offence than the offence
he was
originally convicted of. Quite apart from the aforesaid the
Applicant had the right to be informed that his sentence will
be
increased even where his appeal was upheld on the serious charges.
The Applicant was with regard to the foregoing not afforded
fair
procedure in terms of his right to appeal as envisaged by section
35(3)(o) of the Constitution.”
The
challenge to the sentence imposed by the Supreme Court of Appeal
must be assessed in the context of this factual background.
The
applicant was charged, amongst other offences, with harbouring
persons suspected to have committed offences specified in
the
Protection of Constitutional Democracy against Terrorist and
Related Activities Act.
101
In the alternative, he was charged with harbouring escaped
prisoners in contravention of
section 115(e)
of the
Correctional
Services Act.
102
Section
115(e) provides that “[a]ny person who . . . harbours
or conceals or assists in harbouring or concealing an escaped
inmate
. . . is guilty of an offence and liable on conviction to a
fine or imprisonment for a period not exceeding ten years or to

such incarceration without the option of a fine or both.” The
trial court convicted him on the main charge and sentenced
him to
an effective three years’ imprisonment, an additional two
years having been suspended for five years conditionally.
An
appeal to the High Court was unsuccessful but he was granted leave
to the Supreme Court of Appeal. In a split decision, the
Supreme
Court of Appeal set aside the conviction and sentence. The majority
convicted the applicant on the alternative charge
and imposed a new
sentence of five years’ imprisonment, after taking into
account the mitigating and aggravating factors
relevant to
sentence.
103
Was the applicant’s right to a fair hearing infringed?
The
burden to show the infringement of the right to a fair trial rests
on the applicant. As stated earlier, the applicant asserts
that he
was denied a fair hearing in relation to sentence because the
Supreme Court of Appeal did not notify him in advance
that it
contemplated imposing a sentence harsher than the one that was
imposed by the trial court. It is important to note
that this
entitlement to notice is not based on section 35 of the
Constitution. Instead, the claim is that the failure to give

notice, which is ordinarily issued as a matter of practice under
the common law, rendered the hearing in the Supreme Court
of
Appeal, unfair. As a result, the applicant’s fair trial right
under section 35(3)(o) of the Constitution was breached.
The
evaluation of this claim requires us to examine what occurred in
the Supreme Court of Appeal. This enquiry is mainly factual
and
also involves the making of a value judgment based on the
established facts. As this Court observed in
Key v Attorney-
General, Cape Provincial Division, and Another
:
104
“
What
the Constitution demands is that the accused be given a fair trial.
Ultimately, . . . fairness is an issue which has to be
decided upon
the facts of each case, and the trial Judge is the person best
placed to take that decision. At times fairness might
require that
evidence unconstitutionally obtained be excluded. But there will
also be times when fairness will require that evidence,
albeit
obtained unconstitutionally, nevertheless be admitted.”
105
(Footnote omitted.)
Two
important principles are enunciated in the statement quoted above.
The first is that fairness may be determined upon the
assessment of
the facts of each case. The second is that fairness is
context-specific. Importantly, fairness does not depend
on whether
what was done breached the Constitution or not. Conduct that is
unconstitutional does not, as a matter of course,
render a trial
unfair. What needs to be done is to evaluate the impact of such
conduct on the hearing in the light of all relevant
facts.
In
this case, the applicant appealed against conviction and sentence
to the Supreme Court of Appeal. The prosecution did not

cross-appeal against sentence. In view of the fact that the Supreme
Court of Appeal is empowered to set aside an order which
is the
subject of the appeal and replace it with an order which the court
of first instance ought to have granted,
106
the applicant was fully aware that the impugned conviction and
sentence might be set aside and replaced with a conviction on
the
alternative charge and a fresh sentence imposed.
107
He was represented by senior counsel who was alive to the fact that
a conviction on the alternative charge could replace the
one on the
main charge. Indeed, the written argument filed by his counsel in
the Supreme Court of Appeal covered this issue.
Addressing
the propriety of a conviction on the alternative charge, the
applicant contended in the written argument before the
Supreme
Court of Appeal:
“
Section
6(1)(a)
of the
Correctional Services Act reads
:
‘
No
person may be committed to a correctional centre without a valid
warrant for his or her detention.’
It is submitted that it is a
prerequisite for the lawful detention of a person in a correctional
centre that the inmate be detained
in terms of a valid warrant of
detention. . . . The warrant must be issued by properly authorised
official (the Judge or the
Registrar or a senior member from his
office appointed in terms of
section 34
of Act 59 of 1959). . . . A
warrant not issued by any of the aforementioned is not a valid
warrant as required by
section 6(1)(a)
of the
Correctional Services
Act. It
is therefore submitted that Gouws and Van Rooyen were not
‘inmates’ for purposes of the
Correctional Services Act
.
. . .
In the premises, Appellant is also not guilty on the
alternative count.
” (Emphasis added.)
In
the answering affidavit the prosecution asserted that argument on
the alternative charge and sentence was presented to the
Supreme
Court of Appeal on the applicant’s behalf. This allegation is
not disputed in the applicant’s replying
affidavit. On the
record before us, the applicant was afforded a hearing on the
alternative charge. In our view, the concession
made in this Court
by counsel for the State, to the effect that the failure to give
notice rendered the hearing in the Supreme
Court of Appeal unfair,
was erroneously made. Therefore we are not bound by it.
108
Accordingly, there is no merit in the contention that the Supreme
Court of Appeal imposed a sentence on the applicant without

affording him the opportunity to address the Court on sentence in
respect of the alternative charge.
Was the Supreme Court of Appeal obliged to give notice?
What
remains for determination is whether the Supreme Court of Appeal
ought to have given him notice. This claim is based on
the
“salutary practice” which was observed by the courts of
appeal even before the adoption of the Constitution.
It is
important to set out what this practice entails. Where there is an
appeal against sentence in circumstances where the
prosecution does
not cross-appeal and if the court contemplates increasing sentence,
notice is given to the appellant. The
notice enables the appellant
to make a choice whether withdraw the appeal or advance argument on
why the sentence should not
be increased.
109
This practice finds no application in a case such as the present
where the conviction and sentence imposed by the trial court
are
set aside and replaced with a new conviction and a fresh sentence.
This is so because no sentence is increased in such
cases.
Moreover,
non-compliance with this practice has never been taken to
constitute an irregularity because it has always been treated
as a
rule of practice which has no legal force. In other words it is
neither a legal rule nor principle. It cannot be elevated
to
principle in view of the provisions of section 322 of the Criminal
Procedure Act. Without requiring notice to be given,
this section
empowers an appeal court to impose a sentence more severe than that
of the trial court.
110
It follows that by not giving the applicant notice, the Supreme
Court of Appeal did not breach any rule of law or practice.
Impact of a failure to give notice
On
the assumption that the sentence was increased and that the Supreme
Court of Appeal ought to have given notice, the question
is whether
that failure in and of itself alone, had the impact of rendering
the proceedings in the Supreme Court of Appeal
unfair. This issue
must be assessed with reference to the nature of the complaint and
the relevant facts. In the present circumstances,
the absence of
notice had no adverse impact on the proceedings. The applicant was
afforded the opportunity and he presented
argument on the
alternative charge and what he considered to be the appropriate
sentence, in the event of a conviction in respect
of that charge.
Therefore, we are not persuaded that the failure to give notice
resulted in unfairness of the proceedings.
Development of the common law
Apart
from the fact that the applicant did not ask for the development of
the common law, there are considerations that militate
against its
development. The first is that the applicant has failed, in our
view, to show at the level of fact that the Supreme
Court of Appeal
has increased the sentence imposed by the trial court. The majority
holds that the sentence was not increased
in the technical sense
but that the Court effected an increase of sentence in substance.
111
For this proposition, reliance is placed on
S v Andhee
.
112
We do not agree. In our view, the question whether sentence has
been increased for purposes of invoking the common law practice

turns on the facts. What needs to be established is the simple fact
that the appeal court contemplates to increase the sentence
that
was imposed by the trial court. This, in our respectful view, does
not involve any technicalities.
Andhee
,
on which reliance is placed, does not support the proposition. What
happened in that case is that the High Court to which
the appellant
had appealed, gave notice that it contemplated increasing the
sentence imposed by the trial court. The Supreme
Court of Appeal
did not interfere with the sentence imposed by the High Court on
the basis that the sentence was increased
without notice. The
Supreme Court of Appeal held that the High Court had overlooked the
fact that as an appeal court, its power
to alter the sentence
imposed by the trial court was limited. In this regard the Supreme
Court of Appeal said:
“
In
the present instance the Court
a
quo
in essence doubled the appellant's sentence in respect of fewer and
less serious crimes than he was convicted of originally.
This it
could not do merely in the exercise of an untrammelled sentencing
discretion. It was only entitled in the present case
to increase the
sentences if it was satisfied that the sentences determined were, or
the effective period to be served was, glaringly
inadequate, even
for the offences found by the magistrate to have been committed. . .
. At no time did it express the view that
the effective sentence
imposed by the magistrate was glaringly inadequate.”
113
This
illustrates that the Supreme Court of Appeal in
Andhee
was
concerned with the general power of an appeal court to intervene,
amend or vary a sentence imposed by a trial court.
The
second consideration is that section 35(3) of the Constitution is
designed to cover the whole field relating to protection
of accused
persons against procedural unfairness in criminal proceedings. This
is evident from the opening words of the subsection
which declare
“[e]very accused person has a right to a fair trial, which
includes”. Then the subsection proceeds
to enumerate a list
of no less than 15 rights, including the right of appeal to a
higher court. The opening words illustrate
that the scope of the
right to a fair trial extends beyond the listed rights. Properly
construed, it affords accused persons
protection against any
procedural step that is unfair.
This
Court adopted the approach outlined above in construing the
predecessor of section 35(3) in
S v Zuma and Others
.
114
In that case the Court interpreted section 25(3) of the interim
Constitution and said:
“
The
right to a fair trial conferred by that provision is broader than
the list of specific rights set out in paras (
a
)
to (
j
)
of the subsection. It embraces a concept of substantive fairness
which is not to be equated with what might have passed muster
in our
criminal courts before the Constitution came into force.”
115
Proceeding
on the same approach in
S v Dzukuda and Others; S v Tshilo
116
this Court said, in relation to section 35(3):
“
Elements
of this comprehensive right are specified in paras
(a)
to
(o)
of ss (3). The words ‘which include the right’ preceding
this listing indicate that such specification is not exhaustive
of
what the right to a fair trial comprises. It also does not warrant
the conclusion that the right to a fair trial consists
merely of a
number of discrete subrights, some of which have been specified in
the subsection and others not. The right to a
fair trial is a
comprehensive and integrated right, the content of which will be
established, on a case by case basis, as our
constitutional
jurisprudence on s 35(3) develops.”
117
The
third consideration militating against the development of the
common law is this. The object of the development is to use
the
developed common law as a yardstick against which the fairness of
the criminal proceedings is measured. In view of the
fact that
section 35(3) of the Constitution outlaws unfairness in criminal
proceedings, the common law cannot be employed as
a separate
standard because it does not exist as a system of law parallel to
the Constitution. In
Pharmaceutical Manufacturers Association of
SA and Another: In re ex parte President of the RSA and Others
118
this Court authoritatively declared that the common law does not
exist alongside the Constitution to continue to regulate matters

that are governed by the Constitution. The Court stated:
“
I
cannot accept this contention, which treats the common law as a body
of law separate and distinct from the Constitution. There
are not
two systems of law, each dealing with the same subject-matter, each
having similar requirements, each operating in its
own field with
its own highest Court. There is only one system of law. It is shaped
by the Constitution which is the supreme
law, and all law, including
the common law, derives its force from the Constitution and is
subject to constitutional control.”
119
Although
the majority finds that in this case the failure to give notice by
the Supreme Court of Appeal “constituted an
infringement of
the right of appeal under section 35(3)(o) of the Constitution”,
120
the majority holds that it is necessary still to develop the common
law. We disagree. In our view, this finding by the majority
renders
the development of the common law unnecessary. If section 35(3) is
the benchmark against which the fairness of the
appeal proceedings
is to be tested, the common law cannot be another yardstick because
it does not amount to a body of law
separate and distinct from the
Constitution.
Yet
another consideration is that in the context of the rights listed
in section 35(3), particularly the right to be informed
of the
charge with sufficient detail, the Supreme Court of Appeal in many
cases has declined to construe that right as requiring
every charge
sheet to recite the relevant provisions of the minimum sentencing
legislation,
121
for the increased sentences provided for there to be invoked. In
S
v Legoa
,
122
Cameron JA refused to hold that the failure to refer to that
legislation in the charge sheet renders a criminal trial unfair,
if
when passing sentence the trial court applies the minimum
sentencing legislation. He said:
“
The
matter is, however, one of substance and not form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State
intends to
prove to establish it. A general requirement to this effect, if
applied with undue formalism, may create intolerable
complexities in
the administration of justice and may be insufficiently heedful of
the practical realities under which charge-sheets
are frequently
drawn up. The accused might in any event acquire the requisite
knowledge from particulars furnished to the charge
or, in a Superior
Court, from the summary of substantial facts the State is obliged to
furnish. Whether the accused’s substantive
fair trial right,
including his ability to answer the charge, has been impaired, will
therefore depend on a vigilant examination
of the relevant
circumstances.”
123
(Footnotes omitted.)
An
important principle emerging from
Legoa
is that the breach
of the common law rule, that the charge sheet should set out the
facts that the prosecution intends to prove,
in order to bring the
accused within an enhanced sentencing jurisdiction, did not of
itself result in the proceedings being
unfair. The question whether
an accused person had an unfair trial depends on the facts and the
circumstances of each case.
A different approach is not warranted
in this case.
Another
consideration against the development of the common law is that in
terms of the rule as developed, notice is required
only in respect
of sentence and not where the appeal court contemplates setting
aside a conviction and replacing it with a
conviction on a more
serious charge which may carry a heavier sentence. Notice was not
given here in relation to the conviction
as well. The applicant
does not impugn the conviction on the alternative charge on the
basis that he was not given notice.
In our view, if the failure to
give notice in respect of sentence renders the appeal proceedings
unfair, the unfairness flowing
from it must equally extend to the
conviction. We can think of no reason in logic or principle which
warrants that the defect
be limited to sentence, more so when one
considers that the underlying complaint is that the appellant is
denied the opportunity
to be heard. The entitlement to a hearing
covers both the conviction and sentence.
For
all these reasons we would dismiss the appeal.
For the Applicant:
Advocate
G C Muller SC
instructed
by Boonzaaier & Du Plessis Attorneys
For the Respondent: Advocate A G
Janse van Rensburg
instructed
by the Director of Public Prosecutions
1
Bogaards
v S
[2011] ZASCA 196
;
[2012] 1 All SA 376
(SCA) (Supreme Court
of Appeal judgment).
2
33
of 2004.
3
111
of 1998.
4
74
of 1982.
5
On
20 January 2007, the escapees were arrested in Centurion. They were
found in possession of two R1 assault rifles, ammunition,
cell
phones, maps and GPS equipment.
6
Sections
11 and 12 of the Terrorism Act provide:
“
Offences relating to
harbouring or concealment of persons committing specified offences
11 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
12(1) Any person who—
(a) has reason to suspect that any other person intends
to commit or has committed an offence referred to in this Chapter;
or
(b) 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.
(2) Any person who fails to comply with the provisions
of subsection (1)(a) or (b), is guilty of an offence.”
In
the case of a conviction under section 11, section 18(1)(b)(i) of
the Terrorism Act provides that a High Court or a Regional
Court may
impose a fine or imprisonment for a period not exceeding 15 years.
If an accused is convicted under section 12(2),
section 18(1)(e)(i)
provides that the sentence to be imposed by a High Court or a
Regional Court is a fine or imprisonment for
a period not exceeding
5 years.
7
Section
115 of the CSA provided, in relevant part:
“
Any person who—
(e) 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.”
On
13 January 2007, when the applicant’s farm was searched,
section 1 of the CSA defined “prisoner” as “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”. The CSA has subsequently been
amended by way of the
Correctional Services Amendment Act 25 of 2008
and the Correctional Matters Amendment Act 5 of 2011 which
substitute “inmates” for “prisoners”. For

the purposes of deciding this case, I will only refer to the
unamended CSA.
8
Supreme
Court of Appeal judgment above n 1 at para 28.
9
Bogaards
& Another v
S
[2010] Case No A 531/09, 11
February 2010 (unreported) (High Court judgment).
10
Supreme
Court of Appeal judgment
above n 1
at
paras 5-9.
11
As
already noted, above n 7, I will only be referring to the unamended
CSA.
12
Supreme
Court of Appeal judgment above n 1
at para 15.
13
See
above n 11.
14
The
CSA defined “prison” as:
“
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”.
15
Supreme
Court of Appeal judgment above n 1 at para 17.
16
Mthiyane
JA stated, however, that if he were called on to consider the
matter, he would have considered the escapees to be “prisoners”

held in a “prison” at the time of their escape.
17
Supreme
Court of Appeal judgment above n 1 at paras 108-11.
18
Id
at para 18.
19
Section
167(3)(b) of the Constitution;
S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) (
Basson
) at para
17; and
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001
(1) BCLR 36
(CC) at para 10.
20
Section
12 of the Constitution provides:
“
(1) Everyone has the right to
freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause”.
21
See
below at [74] for the discussion of effective increase in sentence.
22
This
is to be distinguished from a sentence imposed where part of that
sentence may be suspended, thereby resulting in fewer years
actually
spent in prison.
23
Basson
above n 19 at para 39.
24
Section
115(e) of the CSA.
25
See
above n 11.
26
Supreme
Court of Appeal judgment above n 1 at para 17. The last sentence, to
which counsel’s concession did not apply, reads
“[f]
or
these reasons, it is competent to convict Mr Bogaards for
contravening the provisions of
s 115(e)
of the
Correctional
Services Act.”
27
59
of 1959 (Supreme Court Act).
28
The
State contended that the superiority of the court order over the
warrant can be seen when a prisoner wishes to challenge her

detention – the relevant document in this instance is the
court order and not the warrant of detention. The warrant
is used to
demonstrate that the detaining authority was aware of the conditions
attached to the detention order.
29
Supreme
Court of Appeal judgment above n 1 at para 15.
30
Section
6(1)(a) of the CSA provided:
“
A person may not be committed
to a prison without a valid warrant for his or her detention.”
31
Sections
6(3)-(5) of the CSA provided that prisoners must: be informed
promptly of their right to choose and consult with a legal

practitioner; be provided with written information in a language
they understand concerning the rules governing the treatment
of
prisoners in their category; and undergo a health status
examination.
32
S
v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995
(7) BCLR 793
(CC) at para 117 and
Klein NO and Another v
Minister of Trade and Industry and Another
2007 (1) SA 218
(TPD)
at para 34.
33
Above
at [16] where I discuss the factors the Supreme Court of Appeal took
into account in sentencing.
34
See
for example
S v Andhee
1996 (1) SACR 419
(A) (
Andhee
)
at 421g-i where the Appellate Division said “[h]aving set
aside the convictions on counts 3 and 4. . . the Court
a quo
was obliged to reconsider the sentence.”
35
Section
22 of the Supreme Court Act provides, in relevant part:
“
22 The appellate division or
a provincial division, or a local division having appeal
jurisdiction, shall have power—
(b) to confirm, amend or set aside the judgment or
order which is the subject of the appeal and to give any judgment or
make any
order which the circumstances may require.”
See
also
S v E
1979 (3) SA 973
(AD) and
R v Abdullah
1956
(2) SA 295
(AD) for examples of cases where appellate courts have
considered imposing a higher sentence on appeal.
36
See
[49] below where section 35(3) is set out in full.
37
S
v Anderson
1964 (3) SA 494
(AD) (
Anderson
) at 495C-H
.
See also
S v Salzwedel and Others
1999 (2) SACR 586
(SCA)
at para 10.
38
S
v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5) BCLR 423
(CC) (
Jaipal
) at para 39 and
R v Solomons
1959 (2) SA
352
(AD) at 366C.
39
Anderson
above n 37 at 495D and Kruger
Hiemstra’s Criminal
Procedure
Service Issue 5 (LexisNexis, Cape Town, 2012)
(Hiemstra) at 30-49 to 30-50 for a full discussion on misdirection.
40
This
standard has been articulated differently in several cases,
including whether the sentence was “startlingly”
or
“disturbingly” inappropriate or whether it “creates
a sense of shock”. Ultimately, however, the question
at which
all of these formulations are aimed is whether the court could
reasonably have imposed the sentence that it did. See
for example
S
v Sadler
2000 (1) SACR 331
(SCA) at para 8 and
S v Bolus and
Another
1966 (4) SA 575 (AD) at 581E-G.
41
Some
irregularities are considered per se failures of justice. These are
irregularities which are so gross a departure “from

established rules of procedure that it can be said that the
appellant was not properly tried.”
The
State v Moodie
1961 (4) SA 752
(AD) at
759C.
42
S
v Shaik and Others
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12) BCLR 1360
(CC) (
Shaik
)
at para 71.
43
See
above [18]-[21]
. See also
S v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(SA) (
Zuma
)
at para 16.
44
Jaipal
above n 38 at
para 44.
45
Shaik
above n 42 at para 44.
46
See
below [55]-[58].
47
For
the discussion on the important purposes of the notice practice see
below [59]-[67].
48
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 28.
49
Section
2 read with section 172(1)(a) of the Constitution.
50
Section
39(2) of the Constitution provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
51
Khumalo
and Others v Holomisa
[2002] ZACC
12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR
771
(CC) at para 33.
52
Jaipal
above n 38.
53
Id
at para 26.
54
In
S v Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (4)
SA 1078
(CC);
2000 (11) BCLR 1252
(CC) (
Dzukuda
) at para 11,
this Court said that “[i]n considering what, for purposes of
this case, lies at the heart of a fair trial
in the field of
criminal justice, one should bear in mind that dignity, freedom and
equality are the foundational values of our
Constitution.”
55
In
Zuma
above n 43 at para 16, Kentridge AJ put it thus:
“
The right to a fair trial
conferred by that provision is broader than the list of specific
rights set out in paras (a) to (j)
of the subsection. It embraces a
concept of substantive fairness which is not to be equated with what
might have passed muster
in our criminal courts before the
Constitution came into force. In
S
v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A), the Appellate Division, while not decrying the
importance of fairness in criminal proceedings, held that the
function of
a Court of criminal appeal in South Africa was to
enquire:
‘
whether there has been an
irregularity or illegality, that is a departure from the
formalities, rules and principles of procedure
according to which
our law requires a criminal trial to be initiated or conducted’.
A Court of appeal, it was said (at 377),
‘
does not enquire whether the
trial was fair in accordance with “notions of basic fairness
and justice”, or with the
“ideas underlying the concept
of justice which are the basis of all civilised systems of criminal
administration”.’
That was an authoritative statement of the law before
27th April 1994. Since that date s 25(3) has required criminal
trials to
be conducted in accordance with just those ‘notions
of basic fairness and justice’. It is now for all courts
hearing
criminal trials or criminal appeals to give content to those
notions.”
Note
that Kentridge AJ, in the above passage, refers to section 25(3) of
the interim Constitution, which is substantially the
same as section
35(3) of the Constitution. Therefore, his analysis is equally
applicable to section 35(3) of the Constitution.
56
Id
and
Sanderson v Attorney-General, Eastern Cape
[1997] ZACC
18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 22.
57
Section
7(2) of the Constitution mandates the State, of which the courts are
a constituent part, to “respect, protect, promote
and fulfil
the rights in the Bill of Rights.” See, for example, the
observations made in
Dzukuda
above n 54 at para 49:
“
It is for the High Court, in
each case committed to it under s 52 for sentence, to ensure that
the accused receives a fair trial
and nothing in the section
prevents the High Court from doing so. It is, in the first instance,
the duty of the High Courts to
flesh out the procedures enacted in s
52 in a manner consistent with the accused’s right to a fair
trial.”
58
Jaipal
above n 38 at para 38.
59
Hiemstra
above n 39 at 30-11.
60
S
v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A) (
Rudman
)
at 377B-D.
61
Id.
62
Rex
v Swanepoel
1945 AD 444
(
Swanepoel
) at 451. See also
R
v Jurgens
1953 (2) SA 383
(TPD) (
Jurgens
) at 388F-H
.
63
Swanepoel
id.
64
R
v Grundlingh
1955 (2) SA 269
(A) (
Grundlingh
) at 278A.
65
51
of 1977.
66
S
v Kirsten
1988 (1) SA 415
(A) at 420C-J;
S v Du Toit
1979
(3) SA 846
(A) at 855A-E;
Grundlingh
above n 64 at 272A-B;
Jurgens
above n 62 at 388.
67
Grundlingh
above n 64 at 272A (“It seems to me that it would be
convenient, just and consistent with the existing practice if this

rule [to require leave to withdraw an appeal after notice] were
observed”) and
Jurgens
above n 62 at 387-9 (“once
he has availed himself of this right [to be given notice], the
appellant cannot frustrate the
exercise of it by withdrawing at his
own discretion”).
68
Du
Toit et al
Commentary on the Criminal Procedure Act
Service
47 (Juta & Co Ltd, Cape Town 2011) at 30-40 to 30-40A.
69
In
S v M
1990 (1) SACR 451
(N), Didcott J criticised the rule
preventing withdrawal without leave of the court once notice of a
potential increase in sentence
is given.  He argued that the
rule essentially penalises the appellant for poor timing and should
be extended to all appellants;
in other words, the appellant will be
unable to withdraw if his application is received after notice has
already been given,
even where his decision to withdraw is
completely unrelated to the potential increase in sentence.
The simple response
to Didcott J’s concern is to acknowledge
that the court still maintains discretion in deciding whether to
allow an applicant
to withdraw an appeal after notice has been
given.  For instance, in
Jurgens
above n 62, the Court
granted leave to withdraw under circumstances where the accused
intended to withdraw before he received
notice.  The Court
found that the purpose behind the rule made it inappropriate under
the particular circumstances to prevent
withdrawal of the appeal.
The discretion by the court prevents the rule from being arbitrary
and unfair.
70
See,
for example,
Parker v Director of Public Prosecutions
(1992)
28 NSWLR 282
;
65 A Crim R 209
(
Parker
) at 221.
71
Id
at 222-3.
72
Id
at 221.
73
Kirby
P held, id at 221-2, that notifying an appellant when an appellate
court is considering a sentence increase was an “established

practice”, rather than a “rule of law”. However,
he held that it “should rarely, if ever, be departed
from.”
Indeed, Kirby P found that when serious increases of sentence are
contemplated, the high desirability of notification
may amount to an
obligation, and found that it did on the facts of that particular
case.
74
Id
at 221.
75
S
v Sonday and Another
1995 (1) SA 497
(CPD) at 503B.
76
See
S v Du Toit
above n 66 at 855A, where the Appellate Division
noted that
it had been the practice in that Court
that when considering an increase in sentence, notice was given to
the appellant and the
Attorney-General
to
file heads of argument in regard to such consideration
.
See also
Jurgens
above n 62 at 388F-G,
where the Court held:
“
The Court, for the purpose of
the exercise of its powers under this sub-section, clearly has the
implied power to
require
an appellant to show cause why the sentence should not be increased
or varied
. This is
usually done by an intimation to the appellant that the Court, if
the appeal is dismissed, will consider the question
whether or not
the sentence should be increased or varied.”
(Emphasis
added.)
It
is clear therefore that the appellant should be allowed to make
representations expressly on the point of why the sentence
should
not be increased. These may differ in nature from submissions
otherwise made in the ordinary course.
77
Hoexter
Administrative Law in South Africa
(Juta & Co, Ltd, Cape
Town 2007) at 326-7. Translated, the maxim requires the court
literally to “hear the other side”.
See also
S
v Malindi and Others
1990 (1) SA 962
(A) at 976C-E.
78
[2000]
HCA 46
;
(2000) 203 CLR 452
(
R H McL
).
79
Id
at para 124. Although in the particular Australian statutory setting
of the case Kirby J dissented, it seems to me that his
statement of
principle is entirely correct.
80
[2007]
UKPC 9.
81
Id
at para 16.
82
The
purposes are: first, to afford the accused person an opportunity to
prepare
adequately; and second, to ensure an opportunity
to apply for withdrawal.
83
I
pause here to emphasise that this judgment should not be
misconstrued as pitting the common law against the Constitution. As

stated in
Pharmaceutical Manufacturers Association of
SA and Another: In
r
e ex parte President of
the Republic of South Africa
[2000] ZACC 1
;
2000 (2)
SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 44, there is only one
system of law over which the Constitution is supreme. Evaluating the
common law against the
Constitution is, thus, precisely what our
constitutional enterprise demands, and where the common law falls
short of our constitutional
scheme it must be developed. Indeed,
Chaskalson P held in that judgment, at para 45, that “the
Constitution is the supreme
law and the common law, insofar as it
has any application, must be developed consistently with it and
subject to constitutional
control.”
Section
35(3) of the Constitution, for instance, requires substantive
fairness. In the current matter, the common law has been
evaluated
against the criterion of substantive fairness and has been found to
fall short. The common law has, therefore, been
developed in order
to meet the criterion of substantive fairness encapsulated in
section 35(3). After the common law has been
developed, in order to
bring it in line with the Constitution, the proceedings of the
Supreme Court of Appeal are then examined against the common law as
developed. This does not create two separate systems of law.
It is
the result of synthesising the common law with the Constitution.
84
See
above
[57].
85
See
Shaik
above
n 42 at para 43.
86
See
Jaipal
above
n 38 at para 29.
87
Id
at para 44.
88
See
above n 35 for the full text of section 22(b) of the Supreme Court
Act. Section 322 of the CPA provides, in relevant part:
“
(1) In the case of an appeal against a
conviction or of any question of law reserved, the court of appeal
may—
(b) give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the
trial”.
89
[1996]
ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) (
Du
Plessis
).
90
Id
at 65.
But see
Masiya v Director of
Public Prosecutions Pretoria and Another (Centre for Applied Legal
Studies and Another,
amici curiae
)
[2007] ZACC 9
;
2007
(5) SA 30
(CC);
2007 (8) BCLR 827
(CC)
where
Nkabinde J noted, at paras 49-51 and 56-57, that there are
exceptional circumstances which justify a departure from the
general
position set out in
Du Plessis.
In these rare cases it is appropriate to develop
the common law with prospective effect only. This would include
circumstances
in which applying the development of the common law
retrospectively would offend the principle of legality. For
instance, in
Masiya
,
this Court found that fairness to the accused required that the
development would not apply to the accused in that case, but
only to
those cases which arose after judgment had been handed down.
Importantly, in the current matter these considerations
do not apply
as fairness to the appellant demands that the development be applied
retrospectively to the proceedings in the Supreme
Court of Appeal.
91
In
Andhee
above n 34 at 421g-h, the Court had imposed a lesser
charge but instructed that the sentences run consecutively rather
than concurrently.
The Appellate Division held that the court a
quo’s decision to run the sentences consecutively, rather than
concurrently,
resulted in “increasing the effective sentence
from nine to 18 months’ imprisonment.”
92
While
particular offences may be substantially different, the sentences
imposed for the offences will be commensurable. This is
because the
criterion according to which the sentences are compared is the term
of imprisonment or the severity of the fine.
93
See
[10]-[16] above.
94
To
use a hypothetical example, if an accused person were convicted of
theft of a motor vehicle in the court a quo and sentenced
to three
years’ imprisonment, it would be peculiar if the accused
successfully appealed, on the basis that he did not have
the
requisite intention to permanently deprive the owner of the
property, and were then convicted of unauthorised borrowing of
the
vehicle (a less serious offence) but sentenced to a longer period of
five years’ imprisonment.
95
See
above [9].
96
For
example, this notice would be unnecessary if the State were
cross-appealing on sentence because the applicant would then be
on
notice that the sentence may be increased and could act accordingly.
97
See
R H McL
above n 78 at 492.
98
See
S v Whitehead
1970 (4) SA 424
(A) at 435D (“the
relatively restricted ambit wherein this Court will interfere with a
competent sentence passed by a trial
Court”);
S v
Ivanisevic and Another
1967 (4) SA 572
(A) at 575F-H (“it
has more than once been pointed out that the power of a Court of
appeal to ameliorate sentences is a
limited one . . . This is
because the trial Court has a judicial discretion, and the appeal is
not to the discretion of the Court
of appeal: on the contrary, in
the latter Court the enquiry is whether it can be said that the
trial Court exercised its discretion
improperly.”); and
S v
Fazzie and Others
1964 (4) SA 673
(A) at 684A-B (“This
Court will not readily differ from the Court a
quo
in its
assessment either of the factors to be had regard to or as to the
value to be attached to them.”)
99
Majority
judgment at [75].
100
Section
35(3) is quoted in [49] of the majority judgment.
101
33
of 2004. Section 11, under which he was charged, provides that−−
“
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.”
102
111
of 1998.
103
S
v Bogaards
[2011] ZASCA 196
;
[2012] 1 All SA 376
(SCA) at para
18.
104
[1996]
ZACC 25
;
1996 (4) SA 187
(CC);
1996 (6) BCLR 788
(CC).
105
Id
at para 13.
106
Section
22(b) of the Supreme Court Act 59 of 1959 provides:
“
The appellate division or a
provincial division, or a local division having appeal jurisdiction,
shall have power—
(a) . . .
(b) to confirm, amend or set aside the judgment or
order which is the subject of the appeal and to give any judgment or
make any
order which the circumstances may require.”
107
Section
322(1)(b)
of the
Criminal Procedure Act 51 of 1977
provides:
“
In the case of an appeal
against a conviction or of any question of law reserved, the court
of appeal may—
(a) . . .
(b) give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the
trial”.
108
Matatiele
Municipality and Others v President of the RSA and Others
[2006]
ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at para 67.
109
R
v Swanepoel
1945 (AD) 444 at 451.
110
R
v Mkwanazi and Others
1948 (4) SA 686
(A) at 690-1.
111
Majority
judgment at [74].
112
1996
(1) SACR 419
(A) (
Andhee
).
113
Id
at 422d-g.
114
[1995]
ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).
115
Id
at para 16.
116
[2000]
ZACC 16
;
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC).
117
Id
at para 9.
118
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
119
Id
at para 44.
120
Majority
judgment at [52].
121
Criminal
Law Amendment Act 105 of 1997
.
122
2003
(1) SACR 13
(SCA) (
Legoa
).
123
Id
at para 21. See also
Mthembu v The State
2012 (1) SACR 517
(SCA) at paras 16-7 and
S v Ndlovu
2003 (1) SACR 331
(SCA) at
para 12.