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A man convicted of harbouring two escaped Boeremag trialists questioned whether they were legally prisoners, the Constitutional Court heard on Thursday.
“If there is no warrant, you can't be regarded as an inmate,” said Jaco Bogaards' advocate Gerrit Miller.
Bogaards, who seeks to have his conviction set aside, is challenging the validity of Herman van Rooyen and Rudolph Gouws' detention warrant.
It was issued in terms of S6(1) of the Correctional Services Act, for their committal to a correctional facility.
Miller submitted that the warrant was signed by a court orderly - in this case a policeman - so the two were not prisoners, as envisaged in the Act, when they escaped.
Though there was no statutory requirement on who could sign a warrant, case law had shown that a detention warrant should be issued by an authorised official such as a presiding judge, court registrar or a senior official in the registrar's office.
A circular issued in October 2006 put a stop to the practice of court orderlies signing warrants.
In papers submitted to the court, Miller said when a person is presented at a correctional services facility, a correctional services officer must insist on a warrant and the warrant must be valid.
If there is only a court order, as in case of Van Rooyen and Gouws, the person can't be considered an inmate, according to Miller.
Prosecutor Dries van Rensburg conceded there were “technical” difficulties with the warrant, but said the State considered that the two had still been in lawful custody.
“It is so that there were some technical deficiencies in the warrants.”
Van Rensburg said it was not procedure for the police to prepare pro forma warrants where the signatures were photo-copied.
“But a warrant just conveys a message of the court, or the contents of a valid court order,” he said.
The “deficiencies” could have been corrected at any time, but there was never a complaint about it, he said.
The warrant itself had correct details on their names, where they should be kept, and the court they should appear in.
An order which was issued when the two were brought to court by police after their arrest determined their custody, not the warrant.
But regarding Bogaards' sentence, Van Rensburg, after being asked about it numerous times, conceded that it had been unfair that Bogaards' sentence had been increased and that he had not been informed by the court that this might happen.
The State had not asked for this, he said.
Bogaards had originally been sentenced in effect to three years in prison in terms of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act.
His wife Bess was given two years suspended but her conviction and sentence were set aside on appeal.
The Supreme Court of Appeal (SCA) set aside Bogaards' sentence and, still finding him guilty of harbouring and concealing escaped prisoners, sentenced him instead to five years in prison under Section 115 (e) of the Correctional Services Act, which had been an alternate charge.
The court heard that although the SCA was allowed to do this, it was extremely rare.
Bogaards believes it was against his fair trial rights not to tell him this might happen.
The drama dates back to 2002. Van Rooyen and Gouws, who were part of a farm commando in Bela-Bela, were arrested. They formed part of an eventual group of 22 who appeared in the High Court in Pretoria on charges of murder, sabotage and terrorism in what is known as the “Boeremag” trial”.
On May 3, 2006, Gouws and Van Rooyen disappeared during the lunch adjournment, and even Interpol were asked to help find them.
Police knew that Bogaards knew them through the commando and searched his farm on January 13, finding a hidden motorbike, a tent with clothes, food and sleeping bags in a dry river bed. One policeman actually spoke to Van Rooyen, before he again disappeared.
The Bogaards couple were arrested and on January 20, 2007, Van Rooyen and Gouws were arrested at a residential complex in Lyttleton, Centurion.
Bogaards is out on bail of R50 000. - Sapa