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[2007] ZASCA 92
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Minister of Justice and Constitutional Development and Another v Zealand (387/06) [2007] ZASCA 92; 2007 (2) SACR 401 (SCA) (20 June 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
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)
J U D G M E N T
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:
‘
.
. . . 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 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
continue
5
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
Tobani
6
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 168
7
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, 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 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 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 Act 8 of
1959
12
(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:
The plaintiff was unlawfully
detained during the period 11 October 2001 until 30 June 2004.
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
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 –
not to be deprived of freedom
arbitrarily or without just cause;
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] ZACC 1
;
2000
(2) SA 674
(CC) [17] and [20].
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.
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.’
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.’
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.’
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
[1995] ZASCA 152
;
[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’.
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.