It was extremely rare for someone whose conviction and sentence was set aside on appeal, to be given a higher sentence on an alternate charge, his lawyers argued in the Constitutional Court in Johannesburg yesterday.

"It is very rare," said advocate Gerrit Muller, representing Jacobus Bogaards, who was found guilty of harbouring two "Boeremag" trialists.

Bogaards, who is on R50000 bail, wants the highest court in the land to declare his conviction and sentence unlawful in that the Supreme Court of Appeal (SCA) imposed a higher sentence without identifying any factors justifying its imposition.

He also alleges that the SCA failed to notify him that his sentence may be increased.

Bogaards was charged in the Modimolle Regional Court, for contravening sections 11 and 12 under the Terrorism Act, in that he harboured and concealed the escaped trialists and failed to report their escape. He was also charged in the alternative in terms of section 115(e) of the Correctional Services Act.

He was convicted in respect of the main charge and was sentenced to five years imprisonment, two years of which were suspended.

Last year, Bogaards successfully appealed against an effective three-year sentence (suspended for five years) imposed on him by the Modimolle Regional Court for contravening the Terrorism Act.

The SCA set aside his conviction under the Terrorism Act. Instead, it convicted him on the alternative charge, under section 115(e), which criminalises the harbouring or concealment of escaped inmates and imposed a sentence of five years imprisonment.

In defence of Bogaards, Muller said it was rare for someone whose conviction and sentence was set aside on appeal, to be given a higher sentence on an alternate charge.

Bogaards was convicted of harbouring or concealing Rudi Gouws and Herman van Rooyen, and not reporting their escape.

The two were part of the "Boeremag" that bombed certain parts of Joburg.

Muller has challenged the validity of holding Gous and Van Rooyen in custody and whether they were escapees.

He submitted that they were kept in custody by the department of correctional services on a warrant that was legally improper.

Judgment was reserved.