The constitutional court yesterday reserved judgment in the case of a man seeking to have his five-year-long stay at St Albans maximum security prison declared unlawful.
Jonathan Zealand is claiming R10,4million in damages from the ministers of justice and of correctional services.
He alleges he suffered "psychological damage" and had to join a prison gang and acquire tattoos to protect himself from sexual abuse.
The heart of the matter is Zealand's stint at St Albans Prison between August 23 1999 and October 11 2001.
On August 23 1999 the Grahamstown high court overturned Zealand's 18-year sentence for murder.
The registrar of the court, however, failed to issue a warrant for his release and he stayed in the same prison as a convicted prisoner.
Overlapping with this period was a 26-month-long stay in the same jail, during which his court appearance on a separate rape, murder and assault case was postponed 35 times.
No charges were ever put to him and he was kept at St Albans as a sentenced prisoner.
Advocate Gilbert Marcus said: "(You) can't remand a person into custody as a sentenced prisoner ... that is a power that can only be exercised upon a conviction by a competent court of law." - Sapa