Johannesburg Gaol, Governor of v Whittaker [1911] ZATPD 126 (4 September 1911)

Prison - Confinement of Prisoners Pending Trial - Differential Restriction of Liberty - Power of Governor of Gaol - Ordinance 6 of 1906 - Gaol Regulations of 28th December, 1906

The liberty of an awaiting trial prisoner who is unable to find bail can be restricted legally only by such reasonable measures as are necessary to insure his appearing for examination and trial, and to insure the proper management and discipline of the gaol.

Where such a prisoner is treated diflerentially from other awaiting trial prisoners, the onus is on the Governor of the Gaol to show that he is being so treated in pursuance of a duly authorised scheme of classifiction of awaiting trial prisoners, on account of his breach of prison regulations, or in the interest of prison discipline, or himself.

When a particular prisoner, awaiting trial, was segregated in a small cell for 22 hours each day and was not allowed free access to the gaol yard where other awaiting prisoners were allowed freely to associate, and it appeared that he was so being treated in order to keep him from communicating with another prisoner similarly charged, and not for the purpose of maintaining prison discipline or the proper management of the gaol, the Court ordered the Governor of the gaol to allow the said prisoner the same personal liberty as that allowed to other prisoners awaiting trial.