IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NUMBER: CC120/2011
In the matter between:
JACOBUS BOGAARDS Applicant
and
THE STATE
Respondent
AFFIDAVIT
I, the undersigned,
JACOBUS BOGAARDS
declare under oath as follows:
1.
1.1 I am the Applicant in the abovementioned application. I have perused the opposing affidavit by the prosecutor in the abovementioned matter.
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1.2 It is necessary to reply only to certain averments made in the answering affidavit.
2.
AD PARAGRAPH 3(2) AND 3(3) THEREOF:
2.1 The contents of these paragraphs are denied. The issue was pertinently raised in the Applicant’s heads of argument in the Supreme Court of Appeal. The relevant section of the heads of argument filed with the Supreme Court of Appeal reads as follows:
“THE ALTERNATIVE COUNT TO COUNT 1
8.1 It is common cause:
8.1.1 that Gouws and Van Rooyen were in detention at the time of their disappearance;
See: Judgment, Exhibit AA, volume 14, page 1424
8.1.2 that their warrants of detention were signed by a police official “on behalf of”;
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See: Exhibit L and M, volume 12, pages 1195 – 1198
See also: Evidence of C Etsebet, volume 6, pages 545 – 565
8.1.3 that the police official had no authority granted to him by the Registrar or by a statute to issue warrants of detention;
8.1.4 that Gouws and Van Rooyen were detained in C- Max Prison, Pretoria;
8.1.5 that the two of them disappeared from the High Court on 3 May 2006.
See: Exhibit Z, volume 13, pages 1366 and 1369
8.2 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.”
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8.3 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.
See: S v Qomfu 1997 (2) SACR 89 (ECD) at 92 a – c and also 95 f – g
8.4 For a warrant of detention to be valid there must at least be an underlying causa for the warrant namely:
8.4.1 A valid order of court to the effect that the accused is to be detained in custody;
8.4.2 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.
See: S v Motsatsi 1998 (2) SACR 35 (W) at 57 b – i
8.5 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.
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8.6 It is therefore submitted that Gouws and Van Rooyen were not “inmates” for purposes of the Correctional Services Act.
8.7 The passage although obiter dictum in S v Motsatsi 1998 (2) SACR 35 W, at 58 c – e is respectfully wrong. The Court was not called upon and did not decide the case on the basis that the provisions of Section 6(1)(a) of the Correctional Services Act had been contravened. The failure to comply with a court order is contempt of Court and has nothing to do with the offence of escaping from custody in contravention of the Correctional Services Act. A member in charge of a correctional centre may not, on the hearsay statement of someone detain a person. The authorities at a correctional centre may only detain a person on production of a valid warrant of detention. Absent a valid warrant, the detention is unlawful for purposes of the Correctional Services Act. A distinction must therefore be drawn between failing to comply with a court order on the one hand and the provisions of the Correctional Services Act on the other hand.
8.8 In the premises, Appellant is also not guilty on the alternative account.”
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2.2 A copy of the relevant section of the heads of argument filed with the Supreme Court of Appeal is attached hereto as ANNEXURE “B” to which the Honourable Court’s attention is respectfully drawn.
2.3 Applicant is also not in agreement with the remarks made by Mthiyane JA in paragraph 21 – 23 of his judgment. It is incorrect that the defence on the alternative count only emerged during the cross examination of Inspector Etsebet. In fact the defence was put to the witness inspector Marius Groenewald who testified on 11 December 2007 on behalf of the State. It is therefore necessary to attach the relevant portion of the record of the proceedings where the defence was put to him before the Honourable Court. A copy of the proceedings is attached hereto as ANNEXURE “C” to which the Honourable Court’s attention is respectfully drawn.
2.4 Inspector Etsebet was first consulted by the defence and was in reality a defence witness that the defence wanted to call. He was notwithstanding consulted by and brought to court by the State on 13 December 2007. The defence allowed Etsebet to be called as a State witness. The Honourable Courts attention is respectfully drawn to the exchange between the Regional Magistrate and counsel for
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the Applicant during his cross examination as to the consequences of the warrants being invalid and whether Van Rooyen and Gouws were prisoners in terms of the Correctional Services Act. The relevant portion of the proceedings is attached hereto as ANNEXURE “D” to which the Honourable Court’s attention is respectfully drawn.
2.5 The issue was raised at the trial. The State was therefore alive to the issues. The issue was also raised in Applicants heads of argument in the Supreme Court of Appeal as stated.
2.6 The issue was not raised for the first time on appeal as found by Mthiyane JA.
2.7 It is also evident from the judgment of Mthiyane JA that he did not consider whether Van Rooyen and Gouws were prisoners if the provisions of Section 6(1)(a) of the Correctional Services Act has not been complied with.
3.
AD PARAGRAPH 4 THEREOF:
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3.1 It is correct that the Criminal Procedure Act of 1977 is silent on warrants of detention. The Correctional Services Act is not. Section 6(1)(a) requires a valid warrant of detention. The Constitution is also not silent. The Constitution clearly differentiates between the courts as part of the judicial arm of government (Chapter 8) on the one hand, and the security services such as the South African Police (Chapter 11) on the other. A warrant of detention is a process issued by the Court in the administration of justice. The Registrar of the relevant Court and officials appointed to issue the process of the Court is indissolubly part of the judiciary. A warrant of detention as such is a process referred to in section 36, issued by the officials of the Court duly appointed in terms of section 34 of the Supreme Court Act of 1959. The police are undoubtedly not part of the judiciary. A warrant of detention issued by a policeman who is not appointed in terms of Section 34 of the Supreme Court Act of 1959 is simply not authorized to issue process of the Court. The warrants of detention were null and void. In Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 1999 (1) SA 374 (CC) para 58 this Court put it thus: „It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. At least in this sense, then, the principle
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of legality is implied within the terms of the interim Constitution.
Whether the principle of the rule of law has greater content than the principle of legality is not necessary for us to decide here. We need merely hold that fundamental to the interim Constitution is a principle of legality”.
3.2 The Supreme Court of Appeal made a finding that Van Rooyen and Gouws committed acts of terrorism. Maya JA said the following in paragraph 18 of the judgment: “The horrendous consequences for humanity as a whole from acts of terror need not be spelt out. Those who aid and abet such conduct are as dangerous to mankind as the actual perpetrators of such acts.”
3.3 If the State is correct that it was only of academic importance whether Applicant is convicted under Section 11 of Act 33 of 2004 or Section 115(e) of Act 111 of 1998, then the increase the sentence is not academic but a serious misdirection in the absence of notification that the Supreme Court of Appeal is of the opinion that the sentence should be increased. The offences under the Terrorism Act are certainly more serious than the offence under the Correctional Services Act.
4.
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AD PARAGRAPH 6.1 THEREOF:
4.1 It is important to direct the Honourable Court’s attention to the wording of Section 115(e) of the Correctional Services Act published by Butterworths. In addition a hard copy was also obtained on the 8th of December 2011 of Section 115 as published by Lexis Nexis in digital format. Both these publications refer to “escaped offender” in section 115(e) instead of “escaped prisoner”. Copies of Section 115 as it appears in the relevant publications are attached hereto as ANNEXURES “E” and “F” respectively to which the Honourable Court’s attention is respectfully drawn.
4.2 I agree that the definition of “prisoner and “prison” was amended to
“inmate” and “correctional centre” respectively. Nothing turns on the amendment of the definitions.
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5.
AD PARAGRAPH 6.5 THEREOF:
5.1 Section 51(2) of the Criminal Procedure Act of 1977 is irrelevant and need no consideration at all. Section 51(2) reads: “Any person who rescues or attempts to rescue from custody any person after he or she has been lawfully arrested and before he or she has been lodged in any correction facility, police-cell of lock-up or who aids the person to escape or attempt to escape from custody or harbours or conceals or assists in harbouring or concealing any person who escapes from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police- cell or lock-up shall be guilty of an offence liable on conviction to the penalties prescribed in Section 117 of the Correctional Services Act, 1998”.
5.2 It is common cause that the “Boeremag” trial has been in progress since 2003. It is also common cause that Van Rooyen and Gouws had been lodged in C-Max prison the night before their disappearance in terms of warrants of detention.
6.
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AD PARAGRAPH 6.7 THEREOF:
6.1 I agree with the contents hereof. The concession highlights, with respect, the error made by Mthiyane JA in para 21 – 23 of his judgment. The concession also flies in the face of the contention made in para 3(3) of the answering affidavit.
6.2 The Respondent fails to take cognizance of the fact that the definition of “prisoner” and “prison” has to be considered against the requirements of Section 6(1)(a) and the evidence adduced. If a person is detained in a prison without a valid warrant of detention such a person is not a “prisoner” and does not fall within the purview of the Correctional Services Act. Thus, if such a person is not prisoner, Section 115(e) cannot be contravened because the section requires that an “escaped prisoner” be harboured or concealed (if it is accepted that that is the correct wording of the section). The offence cannot be committed if the escapees were not “prisoners” as defined. What the Respondent avoids is that a person detained in terms of an invalid warrant of detention is not a “prisoner”.
6.3 If the proposition offered by Respondent’s is to be accepted then a detainee is not a “prisoner” when he is held in custody in a court room after he has been remanded in custody by the court before a
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warrant of detention is issued. Similarly, such a person is also not a
“prisoner” if he is held in a police-lockup or cell before a warrant of detention is issued. The Correctional Services Act is therefore not applicable to him for the simple reason that the Correctional Services Act becomes operative only when he is committed to a “prison” in terms of a valid warrant. That is the jurisdictional fact that makes the Act operative. To hold otherwise will ignore the importance of Section 6(1)(a) that is the key to the applicability of the Act.
7.
AD PARAGRAPH 6.8 THEREOF:
The attention of Honourable Court has been drawn to why reference was made to “offender”.
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8.
AD PARAGRAPH 6.10 THEREOF
There cannot be any doubt that the Court order deprived Van Rooyen and Gouws of their freedom. There is also no doubt that the warrants of detention were invalid and therefore void. The Constitution demands that a person may not be held in custody in terms of a Court order only. It requires compliance with the procedural aspect as well (detention in prison in terms of a valid warrant) as enunciated in Bernstein and Others v Bester NO and Others 1996 (2) SA 751 CC para 145: “In my view, freedom has two inter- related constitutional aspects: the first is a procedural aspect which requires that no-one be deprived of physical freedom unless fair and lawful procedures have been followed. Requiring deprivation of freedom to be in accordance with procedural fairness is a substantive commitment in the Constitution”. See also S v Coetzee and Others 1997 (3) SA 527 CC para 159.
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9.
AD PARAGRAPH 6.11 THEREOF:
The relevant section is of course Section 115(e) of the Correctional Services Act. To succeed with the prosecution the State has to prove beyond a reasonable doubt that the escapees were “escaped prisoners” (or “escaped offenders”) who were held in a “prison” at the time of their escape. The State on its own version failed to prove those vital elements of the offence.
10.
AD PARAGRAPH 9.7 THEREOF:
The remark referred to was made obiter dictum and is not the ratio decidendi.
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11.
AD PARAGRAPH 10.2 THEREOF:
The argument of the Respondent is untenable. The position is; if the warrants of detention have been discharged the detainees ceased to be
“prisoners” held in custody in terms of a valid warrant of detention as prescribed by Section 6(1)(a). If they were not a “prisoners” as defined, the Correctional Services Act is simply not applicable to the detainees.
12.
AD PARAGRAPH 10(2)(b) THEREOF:
12.1 The argument now proffered by the Respondent is in direct contrast to the argument advanced in Respondents heads of argument before the Supreme Court of Appeal. The Honourable Court is respectfully referred to paragraph 7.2(8) of the heads of argument:
“(8) The escapees will already return to court on command of Exhibit L and M. The instructions contained in the warrants have been complied with and the warrants were executed.”
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12.2 It was argued in the Supreme Court of Appeal that the warrants have been discharged on their return to court and that the detainees were held in terms of the court order and not in terms of the warrants.
Respondent, has realized in the meantime, I suspect, that its argument lacked substance and has changed its original stance. It is in the interests of justice that leave to appeal be granted in view of the importance of the constitutional issues raised for the administration of justice as a whole.
WHEREFORE Applicant persists with the prayers set out in the notice of motion.
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DEPONENT
SIGNED and sworn to before me at ______________ on this _______
day of DECEMBER 2011, the deponent having acknowledged that he/she knew and understood the contents of this affidavit, does not have any objection to taking the prescribed oath and considers the contents to be binding on his/her conscience.
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_________________________
COMMISSIONER OF OATHS EX OFFICIO:
FULL NAMES:
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