Jonathan Zealand v Minister for Justice and Constitutional Development and Minister of Correctional Services

Mr Zealand was charged with murder, rape and assault in a regional court (the first case). While awaiting trial, he escaped custody in 1997 but was re-arrested. In 1998, he was convicted in the High Court of murdering Melvin Phillips and illegal firearm possession (the second case) and sentenced to 18 years imprisonment in the maximum security section of St Albans Prison. On 23 August 1999, his appeal against the second case conviction was successful and his conviction and sentence were set aside. However, the High Court Registrar negligently failed to issue a release warrant or inform the prison until 8 December 2004. Throughout this period, Zealand remained detained as a sentenced prisoner in maximum security, despite being legally an awaiting-trial prisoner in the first case only. The first case was repeatedly postponed until charges were withdrawn on 1 July 2004. Prison authorities repeatedly informed the court that Zealand should not be released because he was a sentenced prisoner. On 11 October 2001, a magistrate ordered his release on warning, but he was not released and was again remanded in custody at his next appearance. Zealand was finally released on 9 December 2004, more than five years after his successful appeal.

• Was the detention of the applicant between 23 August 1999 and 30 June 2004 as a sentenced prisoner in maximum security unlawful for purposes of a delictual damages claim?
• What is the relationship between violations of constitutional rights in public law and delictual claims in private law?
• Does detaining a person contrary to their legal status (as sentenced prisoner when they should be awaiting-trial) constitute a deprivation of freedom under section 12(1)(a) of the Constitution?
• Were magistrates' remand orders sufficient to justify the applicant's detention as a sentenced prisoner?
• What is the legal significance of the difference in status between awaiting-trial and sentenced prisoners?
• Are relative physical conditions in different prison sections relevant to determining lawfulness of detention?

The application for leave to appeal was granted. The appeal was upheld and the Supreme Court of Appeal order was set aside. It was declared that the applicant was unlawfully detained and imprisoned during the period 23 August 1999 to 30 June 2004. The respondents were ordered to pay the applicant's costs in the High Court, Supreme Court of Appeal and Constitutional Court, jointly and severally, including costs of two counsel.

Detaining a person as a sentenced prisoner in maximum security when they are legally entitled to awaiting-trial status constitutes a deprivation of freedom that is both arbitrary and without just cause under section 12(1)(a) of the Constitution. The deprivation of legal status, rights and liberties associated with being an awaiting-trial prisoner (including the right to be presumed innocent) amounts to a deprivation of freedom, even if actual physical conditions might be comparable. Such detention violates the substantive component of section 12(1)(a) where it: (1) is greater than necessary to secure attendance at trial; (2) singles out an individual for harsher treatment than others in the same class; (3) amounts to punishment without conviction; and (4) is not rationally connected to an objective purpose. Magistrates' remand orders cannot justify such detention because they breach the principle of legality by bringing about an illegal state of affairs, being irrational, and having the effect of imposing punishment on a person not convicted. Once a deprivation of liberty is established, the state bears the onus to justify it. An unjustifiable breach of section 12(1)(a) of the Constitution is sufficient to establish unlawfulness for purposes of a delictual claim for damages arising from unlawful detention.

The Court observed that awaiting-trial and sentenced prisoners could only lawfully be detained together where that results from a conscious decision by prison authorities, impartially affects a class of prisoners, is clearly justified by factual conditions in specific circumstances, and where the difference in legal status between the two groups is nevertheless respected. The Court noted that relative physical conditions in prison sections may be relevant to quantifying damages and to determining compliance with section 35(2)(e) (conditions of detention consistent with human dignity), but are irrelevant to determining lawfulness of detention based on legal status. The Court expressed grave concern about the circumstances giving rise to the claim and emphasized that those responsible must take reasonable measures to prevent recurrence of such errors, which have the potential to bring the administration of justice into disrepute. The Court indicated it was unnecessary to consider whether the magistrates issued remand orders in ignorance of the successful appeal, whether prison authorities should have investigated the situation, or the likelihood of bail/warning being granted. The Court did not fully traverse the complex relationship between public law duties and private law remedies, but indicated that delictual relief may be appropriate in certain circumstances where constitutional rights are infringed, requiring careful analysis of constitutional provisions, statutory duties, context, and norms including accountability, effectiveness and responsiveness to people's needs.

This case establishes important principles regarding the constitutional right to freedom and security of person. It affirms that there is a fundamental legal and constitutional difference between awaiting-trial and sentenced prisoners that must be respected, reflecting the right to be presumed innocent. The judgment clarifies that deprivation of freedom includes denial of legal status and rights, not merely physical detention. It establishes that magistrates' orders cannot justify detention that violates constitutional rights or amounts to punishment without conviction. The case reinforces that once a deprivation of liberty is established, the state bears the onus to justify it. It also addresses the relationship between public law constitutional violations and private law delictual remedies, holding that an unjustifiable breach of section 12(1)(a) is sufficient to establish unlawfulness for a delictual damages claim. The judgment emphasizes the constitutional principle of legality and holds that decisions must be rationally related to the purpose for which power was given. It recognizes South Africa's international obligations under the ICCPR regarding compensation for unlawful detention.