A travesty of justice: Zealand's case

Zealand v Minster of Justice and Constitutional Development and Another [2008] ZACC 3

The facts of this case shout to high heavens. The comments below only deal with some aspects of  the case.

"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. 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. 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.

...


[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 [without the required procedure being followed -my comment]

...

[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”. "


The above extract is from the judgement of Langa CJ of the Constitutional court on 11 March 2008.

There are various arguments to justify the detention of the applicant, particularly during his detention from 28 September 1998 to 23 August 1999, when he was formally a convicted prisoner in the second case. From his first court appearance on 24 January 1997, in the first case, to his successful appeal in the second case on 23 August 1999, one could also shrug one’s shoulders as the allegations against him were serious and continued detention was probably a necessary cautionary requirement. However, he was released on warning on 11 October 2001 in the second case (after his successful appeal already in August) and the documentation after that date did not allow his further detention even in the first case. Even after the charges against him were dropped in the first case on 1 July 2004 (in which, already since October 2001, he was not legally held), he was only finally released on 9 December 2004.

Basically, when reviewing all this, one could say that he was innocently (but not necessarily without cause for some of the period) detained since 24 January 1997 to 9 December 2004 as charges against him were finally also dropped in the original case against him – 7 years and 11 months further. His first court appearance was on 24 January 1997 – which probably was not even the date of his initial arrest: so the total period may well be longer.

In the end he received a measure of redress, but it still makes one shudder to think that a notionally innocent person could have been detained for 8 years, before release. It took him another 4 years of court battles to have his right to compensation recognized. At least part of his detention (aside from the errors made) was due to the initial case against him dragging on for years – without prosecution.