Conditions of Detention of Remand Prisoners

Zealand v Minister for Justice and Constitutional Development and Another [2008] ZACC 3 (11 March 2008) This decision of the South African Constitutional Court concerns whether the imprisonment of a remand prisoner in maximum security custody deprived him of liberty arbitrarily or without just cause.


On 24 January 1997, Jonathan Zealand was charged in a regional South African court with murder, rape and assault (‘the original charges’).  The case was postponed several times, with Zealand remanded in custody.  On 15 May 1997, Zealand escaped.

Zealand was subsequently captured and charged with offences relating to his escape, including murder and firearms offences allegedly committed while Zealand was on the run.  Zealand was convicted in relation to these offences on 28 September 1998, and sentenced to 18 years’ imprisonment.

Pursuant to this conviction, Zealand was moved into maximum security custody.  On 23 August 1999, his conviction and sentence were set aside on appeal.  The court Registrar, however, negligently failed to communicate this to the prison, and Zealand remained in maximum security, where only convicted prisoners were meant to be housed.

Meanwhile, the original charges were repeatedly postponed.  Various court orders were made, mostly remanding Zealand in custody, with one in 2001 ordering his release on warning.  The original charges were finally withdrawn on 1 July 2004.  Zealand was not released from the maximum security prison until 9 December 2004.

Zealand sued the Minister for damages resulting from his allegedly unlawful detention in maximum security custody.  The Minister conceded that Zealand’s detention was unlawful from when the original charges were dropped until his eventual release.



In determining whether Zealand’s imprisonment was lawful, the Constitutional Court needed to determine whether his rights under s 12(1)(a) of the South African Constitution had been infringed.  That is, whether Zealand had been ‘deprived of freedom arbitrarily or without just cause’.


Deprivation of Freedom

The Court found that Zealand had been ‘deprived of freedom’.  Only convicted prisoners were kept in maximum security, and Zealand would have been moved elsewhere had the prison known his sentence was overturned.  Maximum security prisoners had more limited freedom than those on remand – for instance, remand prisoners did not wear prison dress, and were not restricted in the phone calls they made or visitors they received.

More fundamentally though, the Court explained, Zealand was denied the right to have his status as an unsentenced prisoner reflected in his conditions, including, crucially, the right to be presumed innocent.  The Court held this right to be an aspect of respect for fundamental human dignity, and is specifically required by art 10(2) of the International Covenant on Civil and Political Rights.

Arbitrary or without just cause?

The Court reiterated that s 12(1)(a) of the Constitution encompassed both procedural and substantive protections: that is, a person may only be deprived of freedom in a fair manner and for acceptable reasons.

In this case, the state failed to provide the substantive protection.  By doing more than was necessary to secure his attendance at trial, the state deprived Zealand of freedom ‘without just cause’, and by treating him differently to other remand prisoners, it effectively inflicted upon him an additional punishment.  The detention was also arbitrary, as it was ‘in no way connected to an objectively-determinable purpose’.

The Minister argued, and the lower court accepted, that Zealand’s imprisonment was not arbitrary or without just cause because of a series of orders, made after his sentence was set aside, remanding him in custody.  The Court rejected this argument.  The court held that the existence of the orders did not justify what was otherwise arbitrary.  Further, the orders themselves were arbitrary because they brought about an unlawful state of affairs in a way not rationally related to the purpose for which the court was so empowered.

Relevance to the Victorian Charter

This case has relevance for the interpretation of s 21 of the Victorian Charter, which concerns the right to liberty and security of persons.  It suggests that s 21 may be invoked when a prisoner is afforded lesser rights than those to which he or she is entitled, and may provide a useful guide to interpretation of s 21 in such a context.

It is interesting to contrast this with the Supreme Court of Victoria’s decision in R v Benbrika [2008] VSC 80.  The accused there had been held in highly-restricted custody, which Bongiorno J considered jeopardised their right to a fair trial at common law.  Although s 49(2) of the Charter operated to exclude the proceedings in that particular case, Zealand suggests that the Charter may have an important role to play in similar cases in future.

This decision is available at

Sharyn Broomhead, Human Rights Law Group, Mallesons Stephen Jaques