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[2008] ZACC 3
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Zealand v Minister for Justice and Constitutional Development and Another (CCT54/07) [2008] ZACC 3; 2008 (6) BCLR 601 (CC) ; 2008 (2) SACR 1 (CC) ; 2008 (4) SA 458 (CC) (11 March 2008)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 54/07
[2008]
ZACC 3
JONATHAN ZEALAND                                                                                          Â
Applicant
versus
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT                                                                                         Â
First
Respondent
MINISTER OF CORRECTIONAL SERVICES                                       Second
Respondent
Heard on         :           15 November 2007
Decided on     :           11 March 2008
JUDGMENT
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 unlawful, for the purpose of a claim for delictual damages?Â
The Supreme
Court of Appeal held by a majority that only part of the detention during this
period was unlawful.
[1]
Â
The applicant now applies to this Court for leave to appeal against that order.Â
The Minister for Justice and Constitutional
Development and the Minister of
Correctional Services (the 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 was postponed several times, with the applicant
being remanded in custody.Â
On 15 May 1997, the applicant escaped from custody and was re-arrested 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 of six months, wholly
suspended.Â
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
re-arrest (the second case).  The applicant was sentenced to imprisonment of 18
years for these
offences and was imprisoned in the maximum security block at St
Albans Prison.
[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 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.
[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 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.
[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 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.Â
On most occasions, the presiding magistrates who
ordered the postponements
remanded the applicant in custody at St Albans Prison by way of warrants for
detention.
[3]
Â
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.
[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 following a remand in custody,
was not issued.  However, for reasons
that are not apparent on the record, the applicant was not released.  Instead,
he was returned
to the maximum security section of St Albans Prison 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 for delictual damages arising out of his alleged unlawful
detention.Â
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 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 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 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 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 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]
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 concurring,

rejected the reasoning of the High Court and concluded that the applicant had
been unlawfully detained for part of the disputed
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.Â
It held 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 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 lawfully cancelled by a court acting in terms of sections 68, 72(4) and

72A of the Criminal Procedure Act.
[5]
  At the applicant’s next
hearing on 29 October 2001, the magistrate who again remanded him in custody
did not comply with these
sections.  Accordingly, the applicant’s release on
warning was not lawfully cancelled and the principle of legality was breached.Â

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 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 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 se, but on his detention as a sentenced prisoner in
maximum
security, together with persons convicted of serious criminal
wrongdoing.  It was 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 awaiting his trial.  The
majority held that the lawfulness of a detention
arises from the court order authorising it, not from the place where and manner

in which it is carried out.  Thus, detaining someone contrary to his or her
status as “awaiting-trial” or “sentenced”
cannot affect the lawfulness of a
detention.  The majority held further that, although redress may be claimable
for being detained
at the wrong facility, this question was beyond the ambit of
what the court had been asked to decide.  This was because the applicant
had
pleaded only that the unlawfulness of his detention arose from his successful
appeal in the second case and failed to mention
his detention at the wrong
section of St Albans Prison.
[16]
The minority judgment, written by Ponnan JA with
Howie P concurring, accepted the second of the two contentions rejected by the
majority and consequently agreed with the High Court that the detention had
been unlawful for the full period.  According to it,
the applicant’s status
changed on 23 August 1999 from that of a sentenced prisoner to an accused
person awaiting trial who became
entitled to claim immunity from any additional
infringement on his liberty which was not an incident of his changed status.Â
That
he remained in detention as a sentenced prisoner in a maximum security facility
was an unwarranted, additional encroachment upon
his liberty; it was harsher
treatment to which other awaiting-trial prisoners were not subjected, solely because
of the negligence
of the Registrar of the Grahamstown High Court.  It was
furthermore unnecessary to secure his attendance at court.  It therefore

amounted to a form of punishment and was illegal.
[17]
To sum up, the Supreme Court of Appeal by a
majority held that the detention of the applicant for the period 11 October
2001 until
30 June 2004 was unlawful, but that the detention between 23 August
1999 and 10 October 2001 was lawful.  It is against this judgment
that the
applicant seeks to appeal.
The parties’ submissions
[18]
The applicant argues that his detention was
unlawful in its entirety and that the approach of the majority of the Supreme
Court
of Appeal was incorrect for three reasons.  First, the applicant’s
detention as a sentenced prisoner in maximum security breached
the constitutional
principle of legality, because it was neither authorised by law nor in
accordance with law.  Second, the detention
unreasonably and unjustifiably infringed
his right to freedom and security of the person, and specifically his right not
to be
deprived of freedom arbitrarily or without just cause, in terms of
section 12(1) of the Constitution.  Third, the detention was
unlawful because
it flowed from the breach of positive duties on state officials to protect the
rights of vulnerable prisoners,
which were owed to the applicant in this case.
[19]
The respondents advance, in essence, two
arguments in reply.  The first is a procedural objection that the applicant is
unfairly
attempting to make out a new case on appeal, and that if this Court
decides the case as the applicant now presents it, the respondents’
right to a
fair public hearing in terms of section 34 of the Constitution will be violated.Â
They assert that the applicant merely
argued before the High Court that his
detention in itself
was unlawful; he did not object to the place and
manner
of that detention.  He now raises three grounds of appeal that were
not raised before the lower courts.  In consequence, there
is a lack of
necessary facts in evidence before this Court for it to reach a proper decision
without unfairly prejudicing the respondents.
[20]
The second argument is that the majority of the
Supreme Court of Appeal was correct to hold that the applicant’s detention per

se
was justified by the series of magistrates’ orders remanding him in
custody.  Any assertion that the magistrates’ possible ignorance
of the
applicant’s successful appeal vitiated those remand orders, overlooks the fact that
the applicant had been lawfully remanded
in custody as an awaiting-trial
prisoner before his conviction in the second case.  Accordingly, on the basis
of these two lines
of reasoning, the application for leave to appeal should be
dismissed.
The legal issue
[21]
I stated at the outset that this case raises a
single issue:  whether the applicant’s detention between 23 August 1999 and 30

June 2004 as a sentenced prisoner in the maximum security section of St Albans
Prison was unlawful for the purpose of delictual
damages.  That issue may be
framed more generally as follows:  Is it lawful to detain a person as if he or
she were a convicted
prisoner in circumstances where (i) the ostensible
basis for his or her detention is absent inasmuch as a court of law has
upheld
his or her appeal against conviction and sentence, but (ii) he or she is
awaiting trial on other charges in relation to
a separate offence in respect of
which he or she has not been convicted or sentenced?
Leave to appeal
[22]
The question whether the applicant’s detention
was consistent with the principle of legality and his right to freedom and
security
of the person in section 12(1) of the Constitution is a constitutional
matter.  In light of the view I take of the matter and for
the reasons that
will follow in due course, the application for leave to appeal should be
granted.  It will however be convenient
to deal first with the procedural
objections raised by the respondents.
The respondents’ procedural
objections
[23]
I do not agree that the applicant attempted to
present an entirely new case on appeal.  It is true that both his particulars
of
claim and his reply to the respondents’ request for further particulars for
trial before the High Court were somewhat equivocal.
[6]
  Nevertheless, it is clear from
the judgments of both the High Court
[7]
and Supreme Court of Appeal
[8]
that the applicant advanced the argument that his detention as a sentenced
prisoner in the maximum security section of St Albans
Prison, and not merely
his detention in itself, was unlawful.  I accordingly disagree with the finding
of the majority that whether
the applicant was detained contrary to his status or
at the wrong facility were matters that fell outside the ambit of what that

court had to decide.
[9]
[24]
There is another, more important reason why this
Court should rule in the applicant’s favour.  The Constitution enshrines the

right to freedom and security of the person, including the right not to be deprived
of freedom arbitrarily or without just cause,
[10]
as well as the founding value of freedom.
[11]
Â
Accordingly, it was sufficient in this case for the applicant simply to plead
that he was unlawfully detained.  This he did.Â
The respondents then bore the
burden to justify the deprivation of liberty, whatever form it may have taken.
[25]
This is not something new in our law.  It has
long been firmly established in our common law that every interference with
physical
liberty is prima facie
unlawful.
[12]
 Thus, once the claimant
establishes that an interference has occurred, the burden falls upon the person
causing that interference
to establish a ground of justification.  In
Minister
van Wet en Orde v Matshoba
,
[13]
the Supreme Court of Appeal again
affirmed that principle,
[14]
and then went on to consider exactly what must be averred by an applicant
complaining of unlawful detention.  In the absence of
any significant South
African authority, Grosskopf JA found the law concerning the rei vindicatio a
useful analogy.
[15]
Â
The simple averment of the plaintiff’s ownership and the fact that his or her
property is held by the defendant was sufficient
in such cases.  This led that court
to conclude that, since the common law right to personal freedom was far more
fundamental
than ownership, it must be sufficient for a plaintiff who is in detention
simply to plead that he or she is being held by the defendant.Â
The onus of justifying
the detention then rests on the defendant.
[16]
Â
There can be no doubt that this reasoning applies with equal, if not greater,
force under the Constitution.
[26]
Even if the applicant can be said to have
altered his cause of action (which I do not accept to be the case), no
prejudice will
be suffered by the respondents if this Court decides the case as
it has now been presented.  That is so, because (i) the question
of the
lawfulness of the applicant’s detention as a sentenced prisoner in a maximum
security facility was canvassed before both
the High Court
[17]
and the Supreme Court of
Appeal,
[18]
and (ii) there is sufficient evidence before this Court properly to decide the
case.
Alleged evidentiary short-comings
[27]
It is necessary to expand on this last point.  The
respondents argue that there are three evidentiary short-comings that must
prevent
this Court from deciding the case.  The first concerns the question why
the applicant himself failed to raise the matter of his
successful appeal with
any of the several magistrates who postponed his case, or with counsel
appearing at these hearings.  This
question, however, has no bearing on the
lawfulness of the applicant’s detention; though it may possibly have a bearing
on an
enquiry as to whether there was contributory negligence and on the
quantum of damages.  The second alleged evidentiary short-coming
concerns the possible
question of the applicant’s membership of a gang while in prison and how he
acquired his tattoos.  This
is also irrelevant to the lawfulness of his
detention.
[28]
The third alleged short-coming concerns the
relative physical conditions in the maximum and medium security sections of St Albans

Prison.  It will be convenient to consider this question together with the merits
of the case, to which I now turn.
The right not to be deprived of
freedom arbitrarily or without just cause
[29]
The applicant argues that his detention
unreasonably and unjustifiably infringed his rights under section 12(1)(a) of
the Constitution.Â
That section provides:
“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”.
The threshold question that arises
under these provisions is whether the applicant has been “deprived of freedom”
in any way.Â
In my view, for the reasons that follow, he clearly has.
Deprivation of freedom
[30]
As mentioned above, Mrs Adendorff’s evidence
established, first, that only convicted and sentenced prisoners were kept in
the
maximum security section of St Albans Prison and, second, that had the High
Court Registrar informed the prison of the applicant’s
successful appeal in the
second case, he would immediately have been transferred to the medium security
awaiting-trial block of
the prison.  The difference between the two prison
sections is of great significance.  It reflects the fundamental difference
in
status between, on the one hand, persons who are merely awaiting the completion
of their trials, and on the other hand, persons
who have been convicted of a
crime and consequently sentenced to punishment by a court of law.  Crucially,
the former bear the
right to be presumed innocent; the latter do not.  Respect
for fundamental human dignity, which is entrenched in our Constitution,
demands
that this fundamental difference in status be always recognised, and that it be
reflected in prisons wherever possible.Â
Indeed, the Republic of South Africa has an international obligation to do so in terms of article 10(2) of the
International Covenant
on Civil and Political Rights,
[19]
(ICCPR) which provides:
“Accused persons shall, save in exceptional
circumstances, be segregated from convicted persons and shall be subject to
separate
treatment appropriate to their status as unconvicted persons.”
[31]
The distinction is also recognised in our
correctional services statutes.  Thus, while sentenced prisoners are restricted
in relation
to telephone calls they may make and visits they may receive, and
are required to wear prison dress, sections 82 and 83 of the Correctional

Services Act 8 of 1959
[20]
provide that no such restrictions or requirements exist in relation to
unsentenced prisoners.  Chapters 4 and 5 of the
Correctional Services Act 111
of 1998
,
[21]
which commenced on 31 July 2004, draw even more significant distinctions
between the two classes of prisoner.  Unsentenced prisoners
may be subjected
only to those restrictions that are necessary for the maintenance of security
and good order in the prison and
must, where practicable, be allowed all the
amenities to which they could have access outside the prison.
[22]
[32]
The applicant, by being detained as a sentenced
prisoner in maximum security, was denied his legal entitlement to these
amenities.Â
He was detained in accordance with a legal status that is
characterised by a lesser set of legal rights and liberties (which excluded
the
right to be presumed innocent) than that to which he was rightly entitled.  That
deprivation of legal rights and liberties
must amount to a deprivation of freedom.
Arbitrary or without just cause
[33]
The next stage of the enquiry is whether that
deprivation was “arbitrary or without just cause” in terms of
section
12(1)(a).Â
It is by now well established in our constitutional jurisprudence
that the right not to be deprived of freedom arbitrarily or without
just cause
affords both substantive and procedural protection against such deprivations.Â
As O’Regan J said in
S v Coetzee
:
[23]
“[There are] two different aspects of
freedom:  the first is concerned particularly with the reasons for which the
state may
deprive someone of freedom [the substantive component]; and the
second is concerned with the manner whereby a person is deprived
of freedom
[the procedural component]. . . . [O]ur Constitution recognises that both
aspects are important in a democracy:  the
state may not deprive its citizens
of liberty for reasons that are not acceptable, nor, when it deprives its
citizens of freedom
for acceptable reasons, may it do so in a manner which is
procedurally unfair.”
[24]
[34]
In my view, in detaining the applicant as a
sentenced prisoner in maximum security, the state failed to comply with the
substantive
component of the section 12(1)(a) right, for the following
reasons.  Following his successful appeal in the second case, the applicant
was
treated as a sentenced prisoner when he was not in fact sentenced, and was
remanded into maximum security when he had no conviction
of any serious
criminal wrongdoing.  The only possible legal basis on which to justify any
deprivation of the applicant’s freedom
at all was the fact that he was still
awaiting trial in the first case.  That, however, was insufficient to justify
treating him
as if he were convicted and sentenced.  This additional
encroachment on his liberty was undoubtedly greater than was necessary
to
secure the applicant’s attendance at trial.  Moreover, other prisoners of his
class – those awaiting their trials in detention
at St Albans Prison – were not
subjected to the same treatment.  This harsher, differential treatment may
therefore properly
be described, in words of Innes CJ, as a form of
“punishment”.
[25]
  It
follows that the deprivation of freedom inflicted upon the applicant was
undoubtedly “without just cause” in terms of
section 12(1)(a) of the
Constitution.  Furthermore, the fact that the deprivation was in no way
rationally connected to an objectively-determinable
purpose
[26]
must mean that it was also “arbitrary” within the meaning of that
provision.
[35]
It would seem, therefore, that the right not to
be deprived of freedom arbitrarily or without just cause has been infringed,
and
thus that the applicant’s detention was unlawful.  The respondents however
resist this conclusion on two grounds.  First, they
argue that the majority of
the Supreme Court of Appeal was correct to hold that the applicant’s detention
was justified by the series of magistrates’ orders remanding him in custody.Â
In addition, they advance a final procedural objection
in the form of a third
alleged evidentiary short-coming concerning the relative actual physical
conditions in the maximum and medium
security sections of St Albans Prison.  I
deal with both submissions below.
The relevance of the relative factual
conditions in maximum and medium security
[36]
The respondents argue that there is no absolute
duty on prison officials to segregate awaiting-trial and sentenced prisoners;
instead,
officials have a discretion to place awaiting-trial prisoners with
sentenced prisoners in exceptional circumstances having regard
to the actual
conditions in a prison.
[27]
Â
However, they continue, there is insufficient evidence before this Court
concerning the relative physical conditions in the maximum
and medium security
sections of St Albans Prison.  The only evidence in the record on this point is
Mrs Adendorff’s untested
oral statement before the High Court that–
“[awaiting-trial prisoners] are supposed to
have more access to visitors and to telephones, but other than that there is
really
no better quality of standards at awaiting trial, in fact I would even
go as far as to say it is worse, for myself, from my point
of view, for an
inmate at awaiting trial section rather than a sentenced one. . . . it is very
over-populated.  I suppose that
is the problem.”
[37]
This evidence suggests that the conditions under
which the applicant was detained may in fact have been better than those he
would
have been subjected to in the awaiting-trial section of the prison.  It
follows, in the respondents’ view, that this Court does
not have the necessary
facts before it to establish that the detention of the applicant with sentenced
prisoners deprived him of
better treatment than he would otherwise have
received, or that any such deprivation was justified in the prevailing
circumstances
of St Albans Prison.  Accordingly, so the argument concludes, the
matter should instead be remitted to the High Court for the leading
of fresh
evidence.
[38]
This argument must fail.  It ignores the crucial
point that the applicant, by being detained as a sentenced prisoner in the
maximum
security section of St Albans Prison, was denied the legal status of an
awaiting-trial prisoner with all its attendant rights and
liberties, including
the right to be presumed innocent.  The state bears the onus to justify such a
denial,
[28]
and it manifestly failed to do so.  The respondents themselves could have taken
the initiative to lead more evidence before the
High Court but chose not to.Â
Even if they had, the fact is that the denial was not the result of a conscious
decision to place
the applicant in the maximum security section of the prison;
it flowed instead from the High Court Registrar’s negligent error.
[39]
Even if there had been a conscious decision,
there could be no justification for singling out the applicant for this special
treatment
while all other awaiting-trial prisoners remained in the medium
security block.  Finally, even if the state had led further evidence,
I think
it would be gravely unjust to allow it to defend its negligently-caused
detention of the applicant as a sentenced prisoner
by pointing to its failure
to maintain reasonable awaiting-trial conditions.  It would be strange indeed
to allow the state’s
breach of one duty to be invoked as a justification for
its breach of other duties.
[40]
In this case, therefore, the actual conditions under
which the applicant was detained are irrelevant for the purposes of determining

the lawfulness of that detention.  What matters, under the lawfulness enquiry,
is whether the applicant’s detention as a convicted
prisoner affected him in
his status and impacted on his rights and the obligations of the state.  Ultimately,
no set of factual
conditions could ever justify denying a prisoner an
awaiting-trial status to which he is legally entitled.
[41]
It is important to clarify my conclusion
concerning the relative factual and physical conditions in prison blocks.  I do
not hold
that such conditions are always legally irrelevant for all purposes.Â
They will certainly be relevant to quantifying the damages
to be awarded in
respect of unlawful detention.  They are also relevant to determining whether
the state has complied with a detainee’s
right “to conditions of detention that
are consistent with human dignity” in terms of section 35(2)(e) of the
Constitution.Â
Furthermore, it may be that the duty to segregate prisoners is
not absolute under our law.  Nevertheless, it is my view that awaiting-trial

and sentenced prisoners could only ever lawfully be detained together where that
is the result of a conscious decision by prison
authorities, which impartially
affects a class of prisoners and is clearly justified by the factual conditions
present in a specific
set of circumstances, and where the difference in legal
status between the two groups of prisoners, thus jointly-housed, is
nevertheless
respected.  As pointed out above,
[29]
there was no conscious decision, only the applicant was affected, and his legal
status as a person awaiting trial was ignored.
The approach of the majority of
the Supreme Court of Appeal
[42]
The respondents’ final argument is that the
majority decision of the Supreme Court of Appeal was correct to conclude that
the
applicant’s detention
was justified by the series of magistrates’ orders
remanding him in custody.  These started before his conviction in the second

case, continued after his successful appeal in that case, and ran right up
until the charges against him in the first case were
dropped.  The majority
held that–
“[t]o detain someone contrary to his or her
status does not . . . affect the lawfulness of the detention, which arises from
the
court order and not from the place or manner of detention.”
[30]
[43]
I cannot agree.  This reasoning ignores the substantive
protection afforded by the right not to be deprived of freedom arbitrarily
or
without just cause contained in section 12(1)(a) of the Constitution.  That
right requires not only that every encroachment
on physical freedom be carried
out in a procedurally fair manner, but also that it be substantively justified
by acceptable reasons.
[31]
Â
The mere fact that a series of magistrates issued orders remanding the
applicant in detention is not sufficient to establish
that the detention was
not “arbitrary or without just cause”.  To the contrary, for the reasons I
advanced above,
[32]
it is my view that the detention was manifestly both arbitrary and without just
cause.
[44]
Moreover, it seems to me that those orders
breached the constitutional principle of legality in no less than three ways.Â
First,
their effect was to bring about an illegal state of affairs, namely, the
detention of the applicant as a sentenced prisoner in a
maximum security
facility contrary to his constitutional right to freedom and security of the
person in terms of section 12(1)(a)
of the Constitution.  Second, the orders
were irrational and therefore arbitrary, in the sense that the power to grant
them was
not exercised in a manner that was rationally related to the purpose
for which that power was given.
[33]
Â
The purpose of the power to remand an awaiting-trial prisoner in custody is to
ensure his or her attendance at trial; detaining
the applicant as a sentenced
prisoner was unnecessary for that purpose.  Third, in my view, the orders were
also issued in breach
of sections 168 and 276 of the Criminal Procedure Act.
[34]
  Section 168 provides that a
court before which criminal proceedings are pending may adjourn those
proceedings on “terms which
to the court may seem proper and which are not
inconsistent with any provisions of this Act.”  Section 276 empowers a court to

pass punitive sentences only “upon a person convicted of an offence”.  Since I
agree with the minority judgment that the applicant’s
detention in effect
amounted to a form of punishment,
[35]
it follows that the magistrates’ orders had the illegal effect of imposing
punishment on a person who was not convicted of an
offence.
[45]
For these reasons, I find that the majority in
the Supreme Court of Appeal wrongly held that the magistrates’ remand orders
justified
the applicant’s deprivation of freedom.  The respondents have
manifestly failed to satisfy their burden of justifying the encroachment
on the
applicant’s liberty.
Section 12(1)(a) unjustifiably and
unreasonably breached
[46]
The inevitable conclusion is that the applicant
was unjustifiably detained in a manner that violated his right not to be
deprived
of freedom arbitrarily and without just cause.  Further, that
violation cannot be justified under section 36 of the Constitution
because it
was not “in terms of law of general application”.  It follows that the
applicant’s detention from 23 August 1999
until 30 June 2004 was indeed
unlawful.
Â
[47]
That, in my view, is a sufficient basis on which
to uphold the appeal.  There is no need, therefore, to consider the applicant’s

third argument based on the state’s alleged breach of positive duties owed to
him.
[36]
Â
There is also no need to consider whether the magistrates issued their remand
orders in ignorance of the applicant’s successful
appeal in the second case,
whether the prison authorities should have taken positive steps to investigate
the situation (there
being factual disputes concerning the applicant’s
requesting them to do so), or the likelihood that the applicant would have been

released on bail or warning had the High Court Registrar informed St Albans
Prison of his successful appeal.  While all these
matters were raised before
this Court, my view is that their resolution is unnecessary for the purposes of
deciding the appeal.
Unlawfulness for the purposes of a
delictual damages claim for wrongful detention
[48]
In this case, the applicant claims delictual
damages on the basis of an action for unlawful or wrongful detention.  The only
issue
before us is whether the applicant’s detention between 23 August 1999 and 30 June 2004 was unlawful
for the purpose of this claim based on
private law.
[49]
I have already held that his detention for the
entire period was unlawful in the sense that section 12(1)(a) of the
Constitution
was unjustifiably and unreasonably violated.  The question thus
arises whether that is sufficient, in this case, to justify a finding
that the
applicant’s detention during that period was also unlawful or wrongful in the
sense required by the private law delictual
action of unlawful or wrongful detention.
[50]
In
Rail Commuters Action Group and Others v
Transnet Ltd t/a Metrorail and Others
,
[37]
this Court considered the relationship between violations of constitutional
rights in public law and delictual claims against the
state in private law.  This
Court unanimously held, on the one hand, that “private law damages claims are
not always the most
appropriate method to enforce constitutional rights.”
[38]
  It held also that “[i]t
should be emphasised that a public law obligation . . . does not automatically
give rise to a legal
duty for the purposes of the law of delict.”
[39]
  On the other hand, the Court
also held that–
“[we] should not . . . be understood to
suggest that delictual relief should not lie for the infringement of
constitutional rights
in appropriate circumstances.  There will be
circumstances where delictual relief is appropriate.”
[40]
[51]
Accordingly, the Court held that, when determining
whether an action lies in the private law of delict where a public law duty has

been breached, the constitutional norm of accountability should be considered.
[41]
  Furthermore,–
“careful analysis of the relevant constitutional
provisions, any relevant statutory duties and the relevant context will be
required.Â
It will be necessary too to take account of other constitutional
norms, important and relevant ones being the principle of effectiveness
and the
need to be responsive to people’s needs.”
[42]
Â
(Footnotes omitted.)
[52]
This is not an appropriate case to traverse
fully the complex relationship between public law duties and private law
remedies.Â
Suffice it to say the following.  I can think of no reason why an
unjustifiable breach of section 12(1)(a) of the Constitution
should not be
sufficient to establish unlawfulness for the purposes of the applicant’s
delictual action of unlawful or wrongful
detention.  Moreover, South Africa also bears an international obligation in this regard in terms of article 9(5)
of the ICCPR,
which provides that–
“[a]nyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compensation.”
Conclusion
[53]
I accordingly hold that the breach of section
12(1)(a) is sufficient, in the circumstances of this case, to render the
applicant’s
detention unlawful for the purposes of a delictual claim for
damages.  That will be the most effective way to vindicate the applicant’s

constitutional right.  I expect that to be the case in most instances of
unlawful detention.
[54]
It is appropriate to conclude this judgment by emphasising that the
circumstances that gave rise to the claim for damages by the
applicant are
cause for grave concern.  The type of error that resulted in his unlawful
detention for about five years has the
potential to bring the administration of
justice into disrepute.  Those responsible must make sure that every reasonable
measure
is taken to prevent a recurrence of this kind of error.
Order
[55]
It is ordered that:
(a)       The
application for leave to appeal is granted.
(b)       The appeal is upheld and the order made by the Supreme
Court of Appeal is set aside.
(c)       It is declared that the applicant was unlawfully detained
and imprisoned during the period 23 August 1999 to 30 June
2004.
(d)       The respondents are ordered to pay the applicant’s costs
in the High Court, in the Supreme Court of Appeal and
in this Court, jointly
and severally, the one paying, the other to be absolved, including the costs
attendant upon the employment
of two counsel.
Moseneke DCJ, Madala J, Mpati AJ,
Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
concur in the judgment
of Langa CJ.
For the Applicant:                                         Advocate
G Marcus SC, Advocate
T Price
and Advocate M du Plessis instructed by Roelofse Meyer Inc.
For the
Respondents:                                    Advocate RF van Rooyen SC and Advocate
HS Havenga instructed by the State Attorney, Port Elizabeth.
[1]
Minister of Justice and Constitutional Development and
Another v Zealand
2007 (2) SACR 401 (SCA); [2007] 3 All SA 588 (SCA).
[2]
Form G344.
[3]
Form J7.  These warrants of detention are addressed to the
prison and contain an instruction to detain.
[4]
Jonathan Zealand v The Minister of Justice and
Constitutional Development and Another
Case No 3968/05 of the Port
Elizabeth High Court, 22 June 2006, unreported, at 98-9.
[5]
Act 51 of 1977.  Section 68 provides–
“(1) Any court before
which a charge is pending in respect of which bail has been granted may,
whether the accused has been released
or not, upon information on oath that–
(a)           the accused is
about to evade justice or is about to abscond in order to evade justice;
(b)           the accused has
interfered or threatened or attempted to interfere with witnesses;
                (c)           the
accused has defeated or attempted to defeat the ends of justice;
(d)           the accused poses
a threat to the safety of the public or of a particular person;
(e)           the accused has
not disclosed or has not correctly disclosed all his or her previous
convictions in the
bail proceedings or where his or her true list of previous
convictions has come to light after his or her release on bail;
(f)            further evidence
has since become available or factors have arisen, including the fact that the
accused
has furnished false information in the bail proceedings, which might
have affected the decision to grant bail; or
                (g)           it
is in the interests of justice to do so,
issue a warrant for the
arrest of the accused and make such order as it may deem proper, including an
order that the bail be cancelled
and that the accused be committed to prison
until the conclusion of the relevant criminal proceedings.
(2) Any magistrate may, in
circumstances in which it is not practicable to obtain a warrant of arrest
under subsection (1), upon
the application of any peace officer and upon a
written statement on oath by such officer that–
                (a)           he
or she has reason to believe that–
(i)            an accused who
has been released on bail is about to evade justice or is about to abscond in
order to
evade justice;
(ii)           the accused has
interfered or threatened or attempted to interfere with witnesses;
(iii)          the accused has
defeated or attempted to defeat the ends of justice; or
(iv)          the accused poses
a threat to the safety of the public or of a particular person;
(b)           the accused has
not disclosed or has not correctly disclosed all his or her previous
convictions in the
bail proceedings or where his or her true list of previous
convictions has come to light after his or her release on bail;
(c)           further evidence
has since become available or factors have arisen, including the fact that the
accused
has furnished false information in the bail proceedings, which might
have affected the decision to release the accused on bail;
or
                (d)           it
is in the interests of justice to do so,
issue a warrant for the
arrest of the accused, and may, if satisfied that the ends of justice may be
defeated if the accused is
not placed in custody, cancel the bail and commit
the accused to prison, which committal shall remain of force until the
conclusion
of the relevant criminal proceedings unless the court before which
the proceedings are pending sooner reinstates the bail.”
Section 72(4) provides–
“The
court may, if satisfied that an accused referred to in subsection (2)(a) or a
person referred to in subsection (2)(b), was
duly warned in terms of paragraph
(a) or, as the case may be, paragraph (b) of subsection (1), and that such
accused or such person
has failed to comply with such warning or to comply with
a condition imposed, issue a warrant for his arrest, and may, when he is

brought before the court, in a summary manner enquire into his failure and,
unless such accused or such person satisfies the court
that his failure was not
due to fault on his part, sentence him to a fine not exceeding R300 or to
imprisonment for a period not
exceeding three months.”
Section 72A provides–
“Notwithstanding
the provisions of section 72(4), the provisions of section 68(1) and (2) in
respect of an accused who has been
granted bail, are, with the necessary
changes, applicable in respect of an accused who has been released on warning.”
[6]
In his particulars of claim, the applicant states at para 17
that “[a]s a result of the breach of the legal duty and negligence
referred to
above, plaintiff
was unlawfully detained at the St Albans Prison
”; in
his reply to the respondents’ request for further particulars, the applicant
states at para 1.3 that “[i]t is plaintiff’s
case that despite the alleged
warrants he
was
unlawfully detained in St Albans Prison
”.
(Emphases added.)  Both statements are equivocal between the two subtly
different causes of action:  whether the detention
was unlawful per se, or
whether its manner and place were unlawful.
[7]
In the High Court judgment, above n 4 at 94, Van der Byl AJ
states that counsel for the applicant argued that the remand warrants
did not
render his detention lawful in part due to the fact that–
“the plaintiff was during
the period 23 August 1999 until his release on 9 December indeed
detained
and treated as a sentenced prisoner
on the warrant issued in respect of the
18 years imprisonment imposed upon him . . . .”
[8]
The minority judgment of Ponnan JA makes this clear.  See above n 1,
at paras 25 and 28.
[9]
Id at para 19.
[10]
Section 12(1) of the Constitution.
[11]
Sections 1(a) and 7(1) of the Constitution.
[12]
See, for example,
Ingram v Minister of Justice
1962
(3) SA 225
(WLD) at 227;
[1962] 3 All SA 76
(W) at 79;
Boland
Bank
Bpk v Bellville Munisipaliteit en Andere
1981 (2) SA 437
(C) at 444;
[1981]
2 All SA 9
(C) at 14;
Shoba v Minister van Justisie
1982 (2) SA 554
(C)
at 559;
[1982] (4) All SA 153
(C) at 155;
Minister of Law and Order and
Others v Hurley and Another
1986 (3) SA 568
(A) at 589
[1986] ZASCA 53
; ;
[1986] 2 All SA 428
(A) at 443;
During NO v Boesak and Another
[1990] ZASCA 51
;
1990 (3) SA 661
(A) at 673-4;
[1990] 2 All SA 347
(A) at 355;
Masawi v Chabata and Another
1991 (4) SA
764
(ZH) at 771-2;
[1991] 4 All SA 544
(ZH) at 550;
Minister of Justice v
Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 153;
[1993] 2 All SA 232
(A) at 244;
Moses
v Minister of Law and Order
1995 (2) SA 518
(C) at 520;
[1995] 3 All SA 98
(C) at 98;
Robbertse v Minister van Veiligheid en Sekuriteit
1997 (4) SA
168
(T) at 172; and
Bentley and Another v McPherson
1999 (3) SA 854
(E)
at 857;
[1999] 2 All SA 89
(EC) at 91.
[13]
1990 (1) SA 280
(A);
[1990] 1 All SA 425
(A) (
Matshoba
).
[14]
Id at 284 and 427.
[15]
Id at 285-6 and 428.
[16]
Id at 286B-C and 428.
[17]
See the argument advanced by the applicant’s counsel
,
summarized above n 7.  Counsel for the respondents submitted in reply before
the High Court, above n 4 at 95, that–
“the plaintiff’s detention
as a sentenced prisoner and his detention as an awaiting trial prisoner should
be treated as separate
issues and that his detention as a sentenced prisoner
and the treatment he received as such are to be regarded as irrelevant.”
Van der Byl AJ considered these competing arguments
and held, at 98, that the applicant “was at all relevant times detained and

imprisoned in terms of his perceived sentence,
and, I add, treated as a
sentenced prisoner.
” (Emphasis added.)  He then went on to hold, at 98-9,
that–
“[t]he
plaintiff was, had it not been for the registrar’s failure to inform the prison
authorities of the outcome of the plaintiff’s
appeal by way of a warrant of
liberation or otherwise, at all times entitled to the same treatment as his
co-accused, but was clearly
treated 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 . . . .” (Emphasis added.)
All of this clearly establishes that the question of
the applicant’s detention
in a particular manner and place
was canvassed
before the High Court and formed a core part of the judge’s reasoning.
[18]
This again is clearly established by the reasoning of Ponnan
JA’s minority judgment, above n 1 at paras 25 and 28.
[19]
South Africa ratified the International Covenant on Civil
and Political Rights on 10 March 1999.
[20]
The Correctional Services Act 8 of 1959 remained in force until 31 July 2004, when it was repealed and replaced in material respects
by the
Correctional
Services Act 111 of 1998
.  The former Act, therefore, is applicable for the
entire period under consideration.
[21]
Id.
[22]
Id section 46.
[23]
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC);
1997 (1) SACR
379
(CC) (
Coetzee
).
[24]
Id at para 159, quoted in
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998
(3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 18 (
De Lange
).
[25]
Whittaker v Roos and Bateman, Morant v Roos and Bateman
1912 AD 92
at 121 (
Whittaker
).
[26]
See
De Lange
above n 24,
at para 23.
[27]
They rely, for this proposition, on section 27 of the Correctional
Services Act 8 of 1959; regulation 142 of the Correctional Service
Regulations,
published in GN R2080 of 31 December 1965; article 10(2) of the ICCPR; and
United Nations Standard Minimum Rules for
the Treatment of Prisoners.
[28]
See
Matshoba
a
bove n 13.
[29]
At paras 38-9 of this judgment.
[30]
Above n 1 at para 19.
[31]
See
Coetzee
, above n 23 at para 159, and
De Lange
,
above n 24 at para 18.
[32]
At paras 34-5 of this judgment.
[33]
A
s was held by this Court in
Pharmaceutical Manufacturers
Association of SA and Another: In Re: Ex Parte President of the Republic of
South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at
para 85, i
t is a requirement of
the constitutional
principle of legality that “[d]ecisions must be rationally related to the
purpose for which the power was given,
otherwise they are in effect arbitrary”.
[34]
Above n 5.
[35]
See a
bove n 1 at paras 27-8, where Ponnan JA cites with
approval
Whittaker
, above n 25.  I agree with this finding at para 34 of
this judgment.
[36]
I briefly summarise that argument above at para 18.
[37]
2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC).
[38]
Id at para 80.
[39]
Id at para 81.
[40]
Id.
[41]
Id at paras 73-8.
[42]
Id at para 78.