Zealand v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ
• Judgment Date: 11 March 2008
• Citation: 2008 (4) SA 458 (CC)
• Hearing Date: 15 November 2007
• Docket Number: CCT 54/07
• Counsel: G Marcus SC (with T Price and M du Plessis) for the applicant. RF van Rooyen SC (with HS Havenga) for the respondents.
• Court: Constitutional Court

Langa CJ:

[1] This case raises a single issue: was the detention of Mr Jonathan Zealand (the applicant) between 23 August 1999 and 30 June 2004 as a sentenced prisoner in the maximum security section of St Albans Prison E unlawful, for the purpose of a claim for delictual damages? The Supreme Court of Appeal held by a majority that only part of the detention during this period was unlawful. [1] The applicant now applies to this court for leave to appeal against that order. The Minister of Justice and Constitutional Development and the Minister of Correctional Services (the F respondents) oppose the application.

Factual background

[2] On 24 January 1997 the applicant was charged in the regional court, together with at least two other co-accused, with murder, rape and assault with intent to do grievous bodily harm (the first case). That case G was postponed several times, with the applicant being remanded in custody. On 15 May 1997 the applicant escaped from custody and was rearrested and put back into custody on 6 August 1997.

[3] On 20 April 1998 the applicant was convicted of escaping from custody and sentenced to imprisonment for six months, wholly suspended. H On 28 September 1998, while still awaiting trial on the first case, he was convicted in the Port Elizabeth High Court of the murder of one Melvin Phillips and of the unlawful possession of a firearm and ammunition, crimes allegedly committed after the applicant's escape from custody but before his rearrest (the second case). The applicant was I sentenced to imprisonment for 18 years for these offences and was imprisoned in the maximum security block at St Albans Prison.

Langa CJ

A [4] The applicant was granted leave to appeal against his conviction and sentence in the second case to the full court of the Grahamstown High Court. His appeal was successful, with the result that his conviction and sentence in the second case were set aside on 23 August 1999. The registrar of that High Court, however, negligently failed to issue a B warrant for the applicant's release, or otherwise to inform St Albans Prison of the successful appeal, until 8 December 2004. The applicant was eventually released only on 9 December 2004, more than five years after his successful appeal against his conviction and sentence in the second case.

C [5] The registrar's negligence was admitted by the respondents. Mrs Adendorff, the acting head of the maximum security section of St Albans Prison, testified before the High Court that, had the registrar properly issued the release warrant after the applicant's successful appeal on 23 August 1999, he would immediately have been transferred to the D medium security, awaiting-trial section of the prison. That did not occur. Instead, notwithstanding his successful appeal, the applicant remained in detention in the maximum security block - an area which, as Mrs Adendorff explained, housed only convicted and sentenced prisoners - until his release on 9 December 2004.

E [6] Between 23 August 1999 and the applicant's release, the first case was repeatedly postponed in the regional court, until the charges were finally withdrawn on 1 July 2004. The record of appearances and remands in the first case shows that, in respect of the overall majority of the postponements after he was sentenced in the second case on F 28 September 1998 (including those after his successful appeal), the clerk of the regional court was directed by the St Albans Prison authorities, by way of the appropriate forms, [2] that the applicant was not to be released because he was a sentenced prisoner. On most occasions, the presiding magistrates who ordered the postponements remanded the applicant in custody at St Albans Prison by way of warrants for G detention. [3] Notably, and again despite the applicant's successful appeal in the second case during August 1999, it was subsequently recorded on at least five occasions that he was to be held in custody because of the 18-year sentence of imprisonment imposed upon him on 28 September 1998.

H [7] The record in the first case also reveals that on 11 October 2001 an order was made by magistrate Allers that the case be postponed and that the applicant be released on warning. In addition, the relevant form contains the inscription that the applicant was to be released on warning. A warrant of detention, which is normally issued by a presiding officer I following a remand in custody, was not issued. However, for reasons that are not apparent on the record, the applicant was not released. Instead,

Langa CJ

he was returned to the maximum security section of St Albans Prison A and, at his very next appearance on 29 October 2001, a different magistrate again remanded him in custody.

The High Court

[8] The applicant sued the respondents in the Port Elizabeth High Court B for delictual damages arising out of his alleged unlawful detention. The respondents conceded that the applicant was unlawfully detained between 1 July 2004, when the charges against him in the first case were dropped, and 9 December 2004, the date of his final release. By agreement therefore, the only dispute before the court was whether the applicant's detention for the period 23 August 1999 until 30 June 2004 C was unlawful. The other elements of delictual liability, including fault, contributory negligence and quantum of damages, were to be considered only after the lawfulness of the detention had been decided upon.

[9] On the basis of his successful appeal in the second case, the applicant argued that his detention had been unlawful. The respondents countered D that, save for the period from 1 July 2004 until 8 December 2004, the applicant was detained as a prisoner awaiting trial in the first case, in terms of appropriate warrants of detention issued by magistrates on the occasion of the various postponements of that case between 24 January 1997 and 30 June 2004.

[10] Van der Byl AJ held that the applicant had been unlawfully detained E for the entire period. The detention was not justified by the detention warrants which, in the circumstances, served no purpose other than to require the applicant to be returned to court on the dates to which the matter was repeatedly postponed. The substantive reasoning for this F conclusion is captured in the following paragraph of the judgment:

The [applicant] was, had it not been for the registrar's failure to inform the prison authorities of the outcome of the [applicant's] appeal by way of a warrant of liberation or otherwise, at all times entitled to the same treatment as his co-accused [in the first case], but was clearly treated G otherwise in that he was detained in maximum security, that he was subjected to the provisions of the two laws relating to correctional services insofar as they relate or related to sentenced prisoners and that he was, notwithstanding a number of orders that he be released on warning, not so released as opposed to some of his co-accused who had indeed been so released. [4] H

The respondents appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal

[11] The Supreme Court of Appeal was divided. The majority judgment, written by Snyders AJA, with Farlam and Combrinck JJA I concurring, rejected the reasoning of the High Court and concluded that the applicant had been unlawfully detained for part of the disputed

Langa CJ

A period only, that is, from 11 October 2001 until 30 June 2004. They held that his detention from 23 August 1999 until 10 October 2001 was lawful.

[12] The majority reasoned that every exercise of the executive power of arrest and detention had to comply with the principle of legality. It held B that after the successful appeal in the second case on 23 August 1999, any possible legal authority to detain the applicant further had to derive from the first case, in respect of which he was still awaiting trial. The applicant's continued detention prior to 11 October 2001 was in terms of a magistrate's order remanding him in custody. Such an order is C lawful. Continued detention only becomes unlawful from the time when the order is set aside, as it was on 11 October 2001 when a magistrate ordered that the applicant be released on warning.

[13] That order releasing the applicant on warning could only be D lawfully cancelled by a court acting in terms of ss 68, 72(4) and 72A of the Criminal Procedure Act. [5] At the applicant's next hearing on

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29 October 2001, the magistrate who again remanded him in custody A did not comply with these sections. Accordingly, the applicant's release on warning was not lawfully cancelled and the principle of legality was breached. According to the majority judgment, it follows that the applicant was unlawfully detained from 11 October 2001 until 30 June 2004.

[14] In reaching these conclusions, the majority rejected two contentions B advanced in favour of the applicant. The first, in essence, was that the detention after 23 August 1999 was unlawful because the magistrates' orders remanding him in custody after that date were made in ignorance of his successful appeal in the second case and, accordingly, on the basis C of a mistaken belief that he was still serving a sentence. The majority's view was that this line of reasoning incorrectly assumed that had the magistrates known the true facts they would have released the applicant on bail or warning. That assumption could not be made in the circumstances.

[15] The second contention focused not on the applicant's detention per D se, but on his detention as a sentenced prisoner in maximum security, together with persons convicted of serious criminal wrongdoing. It was

Langa CJ

A unlawful, so the argument went, to detain the applicant in maximum security and to treat him no differently to sentenced prisoners when he was merely...