Johannesburg — THE error that resulted in the unlawful detention of a person for five years had the potential to bring the administration of justice into disrepute, said Chief Justice Pius Langa.

He said that officials must take every measure to prevent a recurrence of such an error.

The Constitutional Court last week ruled that the detention of Jonathan Zealand as a sentenced prisoner in maximum security, when in fact he had not been convicted, had deprived him of his right to freedom.

Zealand wants to claim damages of R10m for his unlawful detention. The case will now be sent back to the Grahamstown High Court so that the other elements of liability, including quantum of damages, can be considered.

Zealand and two other subjects were charged in 1997 with three crimes , including murder. The case was postponed several times and Zealand was remanded in custody.

He escaped from prison in May 1997 but was rearrested and put back into custody in August the same year. During his escape, he allegedly committed another murder.

He was then convicted of escaping from custody and sentenced to six months, wholly suspended. In August 1998 Zealand was sentenced to 18 years for the second murder and was imprisoned in the maximum security wing at St Albans Prison in Port Elizabeth. He successfully appealed and his conviction and sentence on the murder charge were set aside in August 1999.

However, the registrar of Grahamstown High Court failed to issue a warrant for Zealand's release until December 2004.

The acting head of St Albans Prison said that Zealand would have been transferred to the awaiting-trial wing of the prison had the registrar issued the release warrant after the appeal.

The first case was repeatedly postponed from August 1999 until the charges were finally withdrawn in July 2004.

"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, as well as the founding value of freedom," Langa wrote in the unanimous judgment.

By detaining Zealand as a sentenced prisoner, the state denied him of the right to not be deprived of freedom without just cause, Langa said.

"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," Langa said.

The difference between the maximum security and awaiting-trial sections of the prison was of great significance, Langa said.

"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."