Judgement reserved over unlawful imprisonment

The Constitutional Court on Thursday reserved judgement in the case of a man seeking to have his five-year stay in St Alban’s maximum-security jail near Port Elizabeth declared unlawful.

Jonathan Zealand is claiming R10,4-million in damages from the ministers of justice and correctional services. He alleges that he suffered ”psychological damage”, had to join a prison gang and had himself tattooed to protect himself from sexual abuse. He was allegedly forced to get tattoos on his neck, chest, shoulders, forearms and legs.

The heart of the matter is Zealand’s stint in St Alban’s between August 23 1999 and October 11 2001. On August 23 1999, the Grahamstown High Court overturned Zealand’s 18-year sentence for murder following his appeal.

The registrar of the court, however, ”negligently failed” to issue a warrant for his release and he stayed in the same prison as a convicted prisoner until his eventual release in December 2004.

Overlapping with this period was a 26-month stay in the same jail, during which his court appearance on a separate rape, murder and assault case was postponed 35 times. No charges were ever put to him and he was remanded in St Alban’s maximum-security section instead of the awaiting-trial section.

Lawful detention

Earlier this year, the Supreme Court of Appeal (SCA) declared that Zealand’s detention between August 1999 and October 2001 was lawful because it was made in terms of a court order remanding Zealand into custody in the rape, murder and assault case.

Advocate Gilbert Marcus, who appeared for Zealand, disagreed with this view, saying he had been detained like a sentenced prisoner, despite having been neither sentenced nor convicted.

”[You] can’t remand a person into custody as a sentenced prisoner … that is a power that can only be exercised upon a conviction by a competent court of law.”

He further argued that it violated the rule of law and was not authorised by any law of general application.

Advocate Rudi van Rooyen, for the ministers, argued that the case Zealand was advancing was not covered in the pleadings and the evidence in the lower courts.

”Insufficient tested facts have been placed before this court, the SCA and the court of first instance for a finding in favour of the applicant [Zealand] against the first respondent [the minister of justice and constitutional development]. Against the second respondent [the minister of correctional services] no tested facts whatsoever have been placed on record.”

Zealand did not argue in the SCA that his detention as a convicted prisoner, instead of as an accused awaiting trial, constituted unlawful detention.

‘Nightmarish’

Deputy Chief Justice Dikgang Moseneke questioned whether a J77 — a remand warrant that specifies where an awaiting-trial prisoner be detained — had been the ”appropriate authority” to keep putting Zealand behind bars. He called the string of postponements ”nightmarish” and an ”eyesore” in the justice system.

In previous high court proceedings the ministers were only willing to concede that Zealand’s stay in jail between July and December 2004 was unlawful. On July 1 the charges in the rape, murder and assault case were withdrawn, yet Zealand remained in jail until December 9.

The SCA’s majority judgement stated that ”in view of what happened, the [ministers] should have been eager to make good to [Zealand], rather than hold out and fight to the bitter end”.

The matter ”represents an extreme violation of the rights of the respondent and is a disgrace to the administration of justice”, said the SCA. — Sapa

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