THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 387/06

In the matter between:

MINISTER OF JUSTICE AND CONSTITUTIONAL

First Appellant
DEVELOPMENT

THE MINISTER OF CORRECTIONAL SERVICES

Second Appelant

and

JONATHAN ZEALAND

Respondent

Coram:
HOWIE P, FARLAM, PONNAN, COMBRINCK JJA and SNYDERS
AJA
Heard:
15 MAY 2007
Delivered:
20 JUNE 2007

Summary:
Whether continued detention of previously sentenced prisoner after
setting aside of his sentence is unlawful where he is awaiting trial in custody on
another charge

Neutral Citation: The judgment may be referred to as Minister of Justice &
Constitutional Development v Zealand [2007] SCA 92 (RSA)

SNYDERS AJA/

SNYDERS AJA:

[1] The respondent sued the appellants in the Port Elizabeth High Court in an
Aquilian action for damages arising out of his alleged unlawful detention.  By
agreement, the parties put one defined issue before the court in terms of rule
33(4) of the Uniform Rules of Court, namely whether the respondent’s detention
during the period 23 August 1999 to 30 June 2004, or any part thereof, was
unlawful.

[2] The trial court concluded that the respondent was unlawfully detained for
the entire period.  The appeal against that decision is with the leave of the court a
quo.

[3] For the most the facts were common cause and placed before the trial
court by agreement.  On 24 January 1997 the respondent was charged in the
regional court on charges of rape, murder and assault (the first case).  The case
against him was postponed on several occasions and he was remanded in
custody until 15 May 1997 when he escaped.  Before he was re-arrested on 6
August 1997 he allegedly murdered Melvin Phillips.  On 20 April 1998 he was
convicted of escaping from custody and was sentenced to six months’
imprisonment, wholly suspended.  On 28 September 1998 he was convicted of
the murder of Melvin Phillips and sentenced to 18 years’ imprisonment (the
second case).  The respondent was granted leave to appeal to the full court
against his conviction and sentence in the second case and he did so
successfully.  As a result his conviction and sentence were set aside on 23
August 1999.  Despite his successful appeal the registrar of the high court
negligently failed to issue a warrant for the plaintiff’s liberation until 8 December
2004, pursuant to which he was released on 9 December 2004.  In the interim
the first case was postponed repeatedly in the regional court until the charges
were withdrawn on 1 July 2004.  At all relevant times the respondent was
detained at the maximum security section of the St Albans Prison as a sentenced

prisoner.  The appellants conceded that for the period 1 July 2004 until 9
December 2004 the respondent was unlawfully detained.

[4] The right to freedom is entrenched in the Constitution.1  When a person is
arrested and detained public power is being exercised by the executive
administration of the state which may not exercise any power or perform any
function beyond what is conferred by law.2  This is in accordance with the
doctrine of constitutional legality, an incidence of the rule of law, which is a
foundational value of the Constitution.3  It goes without saying that the state has
the burden to prove that the exercise of its power was lawful.

[5] The respondent was lawfully detained until his conviction and sentence
were set aside in the second case on 23 August 1999.  Any possible authority to
detain him further had to derive from the first case.

[6] The appellants contended that, because of the provisions of s 39(3) of the
Criminal Procedure Act 51 of 1977 (the Act) the detention of the respondent
remained lawful until the charges in the first case were withdrawn:
‘39(3)  The effect of an arrest shall be that the person arrested shall be in lawful custody and that
he shall be detained in custody until he is lawfully discharged or released from custody.’

[7] Insofar as this argument suggests that s 39(3) is the source of the
continued lawful detention of an arrested person until his or her release, it is not
only contrary to s 12(1)(b) of the Constitution, but also to the decision in
Nhlabathi v Adjunk Prokureur-Generaal, Transvaal 1978 (3) SA 620 (W) at 630F-
631A:

1  The applicable part of s 12(1) of the Bill of Rights reads: ‘Everyone has the right to freedom and
security of the person, which includes the right –
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;’
2  Tobani v Minister of Correctional Services NO [2000] 2 All SA 318 (SE) at 321i-322b, 323b-c
and 324j-325 which dicta were approved on appeal as reported in 2003 (5) SA 126 (E) at 135B-
137E.
3  See s 1(c) of the Constitution and Pharmaceutical Manufacturers Association of SA: In re Ex
Parte President of the Republic of South Africa 2000 (2) SA 674 (CC) [17] and [20].

‘. . . . letterlik gelees mag hierdie artikel daarop neerkom dat wanneer ‘n persoon in hegtenis
geneem is, hy in wettige bewaring bly (die bewoording is gebiedend) totdat hy ‘ontslaan of
vrygelaat word’.  Daar is slegs die verdere kwalifikasie dat dit wettiglik moet wees.  Dit kan myns
insiens egter nie die uitwerking van hierdie sub-artikel (‘n nuwe sub artikel) [Section 39(3) was
not part of the then recently repealed Act 56 of 1955] wees dat dit die gevolg is nie.  Dit
sou inderdaad ‘n streep trek deur die menigte bepalings van die Strafproseswet wat bereken is,
afsonderlik en gesamentlik, om ‘n ordelike wyse van verhoor van die beskuldigdes te vermag en
‘n ordelike wyse waarop die vryheid van beskuldigdes ontneem mag word daar te stel.  Dit kom
my voor dat die enigste bedoeling van hierdie artikel bloot is om eintlik die algemene regsgevolge
van inhegtenisneming, soos wat dit nog al die tyd bekend gewees het, daar te stel, naamlik dat
die gearresteerde persoon in wettige bewaring is.
Die enigste verdere moontlike effek wat dit kan hê is soos aangetoon deur Hiemstra op 69 van sy
werk.  Hy sê dat dit vroeër nodig was om ‘n lasbrief vir verdere aanhouding te verkry van ‘n
persoon wat sonder lasbrief gearresteer is (ingevolge die ou art 28) en hierdie sub-artikel maak
daardie administratiewe daad onnodig.  Met respek, stem ek met hom saam.  Veral van belang
vir my is die taal waarin hierdie bepaling ingeklee is, en die woord ‘uitwerking’ gebruik word om
slegs aan te dui wat die algemene regsgevolge is.’

[8] An example that immediately springs to mind as an illustration why the
interpretation advanced by the appellants could not be correct is that the
detention of a person that was lawfully arrested but not brought to court within 48
hours in terms of s 50 of the Act could not possibly continue to be lawful because
of s 39(3).

[9] Nhlabathi was decided when s 50 of the Act read quite differently from
today in that it specifically provided that a person arrested is not to be detained
for longer than 48 hours unless brought before a lower court ‘and his further
detention, for the purposes of his trial, is ordered by the court’.  Section 50 was
amended on numerous occasions after its enactment in 1977.  It has read
materially as it currently does since 1997 and still provides that an arrested
person be brought to court within 48 hours.4  It no longer provides in the same
words as before that an arrested person be brought before a lower court for the

4  Certain exceptions are provided for if 48 hours expire outside of court hours or not on a court
day, but those are irrelevant for the present discussion.

purpose of an order for further detention.  It contains more elaborate provisions in
subsec (6) including that an arrested person be informed by the court of the
reason for the detention to continue5 or be charged, in which case he or she is
entitled to apply to be released on bail, failing which the person shall be entitled
to be released.  Detention contrary to those provisions would be unlawful.

[10] Section 39(3) provides for lawful detention during the period between
lawful arrest and the first court appearance.  The Nlabathi interpretation was
therefore correctly followed during 2000 in both the Tobani6 decisions  referred to
in note 2 above.

[11] The appellants introduced into evidence the charge sheet and record of
the appearances and remands in the first case.  From that it is apparent that the
first case continued to be postponed and the respondent continued to be
remanded in custody.  After the first appearance the court derives its authority
from s 1687  to postpone a pending matter and make appropriate orders.

[12] The record reveals that on 11 October 2001 an order was made that the
respondent be released on warning.  The appellants argued that this inscription
was a mistake.  It was submitted that the magistrate made an administrative error
and had no intention to release the respondent on warning.  The evidence relied
upon for this contention is found in the self-same record of the very next
appearance on 29 October 2001, when the respondent was, without further ado,

5  ‘50(6)(a)  At his or her first appearance in court a person contemplated in subsection (1)(a)
who–
(i) was arrested for allegedly committing an offence shall, subject to this subsection and section
60 –

(aa)  be informed by the court of the reason for his or her further detention; or

(bb)  be charged and be entitled to apply to be released on bail, and if the accused is not
so charged or informed of the reason for his or her further detention, he or she shall be released;’
6  [2000] 2 All SA 318 (SE) at 322f and 2003 (5) SA 126 (E) at 134B.
7  ‘168  A court before which criminal proceedings are pending, may from time to time during such
proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date
on the terms which to the court may seem proper and which are not inconsistent with any
provisions of this Act.’

remanded in custody.  I presume this argument refers to the non-compliance with
ss 72(4), 72A and 68 of the Act which determines that bail and release on
warning may only be cancelled under certain circumstances. Those
circumstances were not present in this case at the time.

[13] The inference of a mistake is not possible on the facts.  By 11 October
2001 the first case had been continuously postponed and the respondent
remanded in custody for almost four years without charges having been put to
him.  Although there was no formal objection raised against a further
postponement, some issues about the case being dragged on were stated and
the respondent’s legal representative remarked that they were ready for trial.
The magistrate then postponed the case and ordered the release on warning of
the respondent.  Not only was the respondent’s release on warning noted on the
record, the warrant for detention that is usually authorised by a presiding officer
following a remand in custody, a J7 form, which is addressed to the prison and
contains an instruction to detain, was not issued.  In addition the relevant G344
form, sent from prison to court with a detainee for the clerk of the court to record
the result of the proceedings thereon, contains the inscription that the respondent
was released on warning.  These deliberate and conscious actions derogate from
an inference that a mistake of any kind was made on that day.  That the
magistrate – a different one ─ did not follow the requirements of ss 22 72(4), 72A
and 68 on 29 October 2001 is equally consistent with the inference that he simply
did not notice that the respondent had been released on warning previously.

[14] The appellants introduced the record through the evidence of the clerk of
the court into whose custody it was entrusted, who certified it in terms of s
235(1)8 of the Act.  Section 235 provides for prima facie proof of the accuracy of

8  ‘235(1)  It shall, at criminal proceedings, be sufficient to prove the original record of judicial
proceedings if a copy of such record, certified or purporting to be certified by the registrar or clerk
of the court or other officer having the custody of the record of such judicial proceedings . . . as a
true copy of such record, is produced in evidence at such criminal proceedings, and such copy
shall be prima facie proof that any matter purporting to be recorded thereon was correctly
recorded.’

a record at criminal proceedings.  Section 72(3)(b)9 provides similar proof of a
warning.  In anticipation of the trial the parties agreed that documents would be
evidence of what it purports to be.  Section 18(1) of the Civil Proceedings
Evidence Act 25 of 1965 provides for the admission into evidence of public
documents on their mere production from proper custody by the officer to whose
custody the originals are entrusted.  The appellants did not lead any evidence of
a mistake on the record and the respondent did not challenge the evidence.  The
appellants relied on the face value of the record and its correctness in all other
respects.  In the absence of evidence to the contrary the record is evidence that
the respondent was released on warning on 11 October 2001.

[15] On 29 October 2001 the respondent was remanded in custody without
compliance with ss 72(4), 72A and 68.  Those sections, read together, provide,
amongst other things, that an accused person’s release on warning may be
cancelled by a magistrate upon receipt of information on oath.  In the absence of
compliance with the empowering provisions of those sections, the requirement of
constitutional legality was not met and the respondent’s release on warning was
not lawfully cancelled.

[16] Therefore, from 11 October 2001 to 30 June 2004 the respondent was
unlawfully detained.

[17] Following upon this conclusion it needs to be investigated whether any
ground exists for finding that in the period between 23 August 1999 and 11
October 2001 the respondent was unlawfully detained.  The record reveals that
the respondent’s continued detention was in terms of the order of the court

9  ‘72(3)(b)  A court which releases an accused under subsection (1) shall, at the time of releasing
the accused, record or cause the relevant proceedings to be recorded in full, and where such
court is a magistrate’s court, or a regional court, any document purporting to be an extract from
the record of proceedings of that court and purporting to be certified as correct by the clerk of the
court and which sets out the warning relating to the court before which, the time at which and the
date on which the accused is to appear or the conditions on which he was released, shall, on its
mere production in any court in which the relevant charge is pending, be prima facie proof of such
warning.’

remanding him in custody.  A decision by a court to remand an accused person
in custody results in lawful detention of that person.  Such a decision needs to be
set aside before lawful detention in terms thereof ceases.10

[18] The respondent attacked the decisions to remand him in custody as
having been based, solely, on the incorrect information that he was a sentenced
prisoner.  It has to be assumed that if the warrant of release in the second case
was issued the respondent would have been informed thereof, the prison would
have released him in that case and he would have applied for bail in the first
case.  Section 60(4) to (10) lists many factors that are relevant to a decision to
release an accused on bail or warning.  None of these was canvassed at the trial.
It is consequently unknown whether he faced charges included in schedule 5 or
schedule 6 of the Act, what the strength of the State’s case was at that stage,
what the circumstances were of his escape, what his personal circumstances
were, to name but a few of the unknown facts making it impossible to conclude
that the respondent would probably have been released if the true facts about his
successful appeal had been known.  It is unrealistic to assume that knowledge of
the true facts in this regard would, in and of itself, have resulted in the
respondent’s release on bail or warning.  In terms of s 60(11)(a) and (b)11 the
respondent would have had the onus to show facts that justified his release.

[19] For the entire period under consideration the respondent was detained as
a sentenced prisoner.  That fact is not insignificant.  The Correctional Services

10  The effect of such a decision is apparent from Abrahams v Minister of Justice 1963 (4) SA 542
(C).  Although the facts of that case are materially different, it illustrates that the decision of a
magistrate to detain is not affected by an unlawful arrest.  The dictum at 545G-H was approved in
Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A) at 351f-j.
11  Section 60(11)(a) of the Act:
‘Notwithstanding any provision of this Act, where an accused is charged with an offence referred
to –

(a)  in Schedule 6, the court shall order that the accused be detained in custody until he
or she is dealt with in accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her release’.

Act 8 of 195912 (the CSA) makes a clear distinction between the status of a
sentenced and an awaiting trial prisoner.  To detain someone contrary to his or
her status does not, however, affect the lawfulness of the detention, which arises
from the court order and not from the place or manner of detention.  The
respondent pleaded that the unlawfulness of his detention arises from the setting
aside of his conviction and sentence and not from his having been detained at
the wrong facility.  This does not mean that the respondent has no redress for the
infringement of his rights contrary to the empowering provisions of the CSA.  An
enquiry in that regard should be had, but falls outside the ambit of what we have
to decide.

[20] Consequently the respondent was unlawfully detained for the period 11
October 2001 until 30 June 2004.  The trial court erred in finding that the
respondent was unlawfully detained for the period 23 August 1999 until 10
October 2001.

[21] Having reached that conclusion it cannot be left unsaid that this case
represents an extreme example of violation of the rights of the respondent and is
a disgrace to the administration of justice.  The limited issue placed before the
trial court prevented a thorough probe into a much wider range of issues.  In view
of what happened the appellants should have been eager to make good to the
respondent, rather than hold out and fight to the bitter end.  Against that
background the success achieved in this court is not substantial success entitling
them to the costs of the appeal.

[22] For these reasons it is ordered that:
The appeal is upheld in part.
The order of the court a quo is replaced by the following:

12  The Correctional Services Act 111 of 1998 replaced Act 8 of 1959 in material respects, but
only on 31 July 2004, thus, for the entire period under consideration the 1959 act is applicable.

(a) The plaintiff was unlawfully detained during the period 11 October
2001 until 30 June 2004.
(b) The defendants, jointly and severally, are to pay the plaintiff’s costs,
including the costs of two counsel.
The appellants, jointly and severally, are ordered to pay the costs of
the appeal, including the costs of two counsel.

__________________________
S  SNYDERS
ACTING JUDGE OF APPEAL

CONCUR:

FARLAM JA
COMBRINCK JA

PONNAN JA

[23] I have had the benefit of reading the judgment of Snyders AJA but unlike
my learned Colleague I believe that the appeal must fail in its entirety.

[24] The retention of an individual in custody is an exercise of public power.
Any such exercise is of course constrained by the principle of legality.  It may
thus only occur in terms of lawful authority.

[25] What the respondent has attacked in this matter is his continued detention
as a sentenced prisoner after the success of his appeal.  The attempt at
justification offered by the appellants is that he was in any event being held as an
awaiting trial prisoner in connection with certain other pending charges.  The
attempt must fail.

[26] It is indeed so that his arrest and detention on the first set of charges for
which he was awaiting trial in the Regional Court had caused his liberty to be
legally curtailed.  That, however, could not afford an excuse for the further
encroachment upon it for which there was in law no basis after the success of his
appeal on 23 August 1999.  Once his appeal succeeded he was therefore
entitled to claim immunity from any additional infringement on his liberty no
longer warranted by his changed status.

[27] After the success of his appeal his changed status ought to have received
appropriate recognition. It did not, simply because, as has been admitted by the
appellants, the Registrar of the High Court had negligently failed to issue a
warrant for the respondent’s liberation from prison. Had that happened he would
have been treated as any other awaiting-trial prisoner. He was not. He was thus
subjected to more rigorous conditions than other prisoners of the class to which
he actually belonged. Such differential treatment under which he was subjected

to harsher or more severe treatment than the rest, amounted to punishment, and
must be illegal (Whittaker v Roos and Bateman, Morand v Roos and Bateman
1912 AD 92 at 128).

[28] Any greater encroachment upon his liberty than was necessary to secure
his attendance in court or as required by the prison rules for the disciplinary
management of the prison vis-à-vis him as an awaiting trial prisoner constituted
an infringement on his personal rights.  Approached thus, the treatment of the
respondent after 23 August 1999 was illegal.  His liberty was curtailed in a
manner significantly more excessive than is usual for awaiting-trial prisoners.
The effect was to subject him to punishment and not merely to detain him
pending trial.  The illegality in his continuing confinement as a sentenced prisoner
is undoubted. It follows that an action must lie against those who caused him to
be subjected to that treatment.  This is precisely the basis of his claim.  It is not a
claim for unlawful imprisonment, or deprivation of all liberty, within the context of
the actio iniuriarum.  One is not concerned with the validity of the remand orders
and one is not concerned with whether the respondent should have awaited trial
in the Regional Court case in custody, on bail or on warning.  That question
might arise were the claim to be amended.  What is alleged, and is apparent from
the agreed facts, is that negligence on the part of the Registrar of the High Court
resulted in certain injurious consequences amounting, in sum, to his continued
wrongful detention as a sentenced prisoner.  It did not require a liberation warrant
from the Registrar to terminate his detention as a convicted prisoner.  That would
merely have been an administrative measure reflecting the substantive position.
The substantive position was simply that after the setting aside of his sentence
there was no lawful basis for his continued detention as such a prisoner.  It must
follow that the answer to the question put to the trial court for decision is that the
respondent's detention as a sentenced prisoner from 23 August 1999 to 30 June
2004 was unlawful.

[29] In the result I would accordingly dismiss the appeal.

________________
V M PONNAN
JUDGE OF APPEAL

CONCUR:
HOWIE  P

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
20 June 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court
of Appeal

MINISTER OF JUSTICE & CONSTITUTIONAL DEVELOPMENT v
ZEALAND

Mr Zealand was the victim of most unfortunate events. Since 1997 he was in prison on
two different cases. In the first one, in a regional court, he faced murder, rape and assault
charges. In the second one he was convicted of murder and sentenced to 18 years’
imprisonment. On 23 August 1999 his conviction and sentence were set aside. This fact
was not conveyed to the prison until 8 December 2004. Despite the fact that all charges in
the first case were withdrawn against him on 1 July 2004 he was not released until 9
December 2004.

The court was asked to decide whether his detention after 23 August 1999 was lawful.
The majority of the Court found that after 23 August 1999 he was lawfully detained in
the first case, until 11 October 2001, when the regional court made an order for his
release on warning. Thereafter he was unlawfully detained.

The amount of damages to be paid to Zealand still has to be determined.

--ends--