Johannesburg — THE advocate for the ministers of justice and correctional services had a difficult time yesterday explaining to the Constitutional Court how it was lawful to detain for nearly five years a prisoner who had won his appeal against a conviction and sentence for murder.

The ministers' a dvocate, Rudi van Rooyen, was defending an action launched by Jonathan Zealand who was kept in prison as a convicted prisoner at the St Albans maximum prison from 1999 until 2004.

Zealand wants the state to compensate him for unlawful detention.

He was charged in January 1997 with murder, rape and assault, and was remanded in custody. He escaped and allegedly committed another murder in July that year.

He was arrested on the second murder charge in August 1997 and brought before the h igh c ourt where he was sentenced to 18 years imprisonment. Zealand successfully appealed against his conviction and sentence in 1999.

However, the registrar of the high court negligently failed to issue a warrant of liberation, and he was kept in the maximum security section of St Albans as a sentenced prisoner until his release on December 9 2004.

Zealand sued the ministers in the Port Elizabeth High Court for damages and the court declared that Zealand's detention during the period from August 23 1999 to June 30 2004 was unlawful.

The majority of the Supreme Court of Appeal, however, ruled that Zealand was unlawfully detained from October 11 2001 until June 30 2004.

It ruled that his 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.

"As of August 23 1999, when the full bench reached a decision, the applicant was no longer a convicted prisoner. He could no longer be held as a convicted prisoner. There was no authority which authorised that he be held as a convicted prisoner. Holding him as a convicted prisoner was unlawful," Judge Sandile Ngcobo told Van Rooyen.

Ngcobo said if a person was an awaiting trial prisoner, there was an assumption that the person was innocent.

Van Rooyen said Zealand was in a better position as a convicted prisoner than as an awaiting trial prisoner.

"It has nothing to do with how comfortable it was. The question is: is there really a ground in law for the commissioner to take away his liberty?" Deputy Chief Justice Dikgang Moseneke said.

Zealand's advocate, Gilbert Marcus SC, said that Zealand was detained like a sentenced prisoner, despite having been neither sentenced nor convicted. Marcus said Zealand's detention violated the rule of law.

Judgment was reserved.