Whittaker v Roos and Another ; Morant v Roos and Another [1911] ZATPD 164 (7 December 1911)

Practice - Pleadings - Amendment of Plea after Close of Case and Argument

Prison - Confinement of Prisoners Awaiting Trial - lllegal Treatment - Segregation - Contumely - Damages - Personal Liability of Oflicials for Delicts committed in their Office - Ord.6 of 1906 - Gaol Regulations of 28th December, 1906

A plaintiff alleged that, whilst awaiting trial in gaol, he had suffered illegal treatment at the instance and command of the Director of Prisons and the Governor of the Gaol, and that such treatment had continued in spite of complaints. He sued them for damages in consequence thereof. The defendants denied that there had been any complaints, pleaded justification for the treatmnent, and made a joint tender with denial of liability. The defendants did not deny that the said treatment had been at their instance and request. At the trial the Director of Prisons denied having authorised part of the said treatment, but he was not cross-examined thereon. The Governor of the Gaol admitted the said treatment, and said that he had acted on instructions which had been telephoned to him by an unknown clerk from the office of the Director of Prisons, and was cross-examined thereon. At the close of the defendant's case a question as to the liability of the Director of Prisons was raised by the Court and, on its leave, a clerk in Director's office, was called by the plaintiff and examined, but gave no evidence connecting the Director with the said telephonic message. Thereupon the plaintiff's counsel said he relied upon the pleadings as admitting authority by the Director. After the plaintiff's counsel had addressed the Court on the whole case, and during the address of the defendants' counsel, the latter applied for leave to amend his plea by denying that the said treatnient had been at the defendants' instance and request, and stated that the denial had' been omitted through inadvertence.

Held, that the Court in the exercise of its discretion should allow the amendment unconditionally.

Under Ord.6 of 1906 and the Gaol Regulations made thereunder, the Director of Prisons and the Governor of the Gaol each impliedly had power to cause an awaiting trial prisoner, entitled to, but incapable of finding bail, to be strictly segregated for the purpose of insuring that information which might cause injury to the public safety should not be communicated to persons at liberty.

The rights of awaiting trial prisoners to see their legal advisers and friends, and the method of restraining them in gaol, discussed.
(Whittaker vs Johannesburg Gaol, Governor of, 1911, W.L.D. 139; 1911, T.P.D. 798, distinguished).