Whittaker, Appellant v Roos and Bateman, Respondents.

Morant, Appellant v Roos

and Bateman, Respondents
1912 AD 92

Appellate Division, BLOEMFONTEIN, CAPE TOWN.

1912. February. 29. March. 9

[Coram Lord DE VILLIERS, C.J., INNES, J., SOLOMON, J., C. G. MAASDORP,

J.P., and J. DE VILLIERS, J.P.]

Flynote

Prisons. --- Gaoler. --- Director of Prisons. --- Unconvicted prisoner. --- Illegal
treatment by gaoler. --- Responsibility of Director of Prisons. --- Ratification. ---
Damages.

Headnote

In an action for damages against the first defendant who was Director of Prisons, and
the second defendant who was Governor of a gaol in the Transvaal, by reason of the
illegal treatment of the plaintiffs while in such gaol, the defendants joined their
defence, and justified the confinement of the plaintiffs in the punishment cells on the
ground that there were no other cells available in which the plaintiffs could

1912 AD at Page 93

be separated. At the trial it was proved that although the first defendant had authorised
the second defendant to segregate the plaintiffs, he had given no authority for the
sending of a telephone message, which was sent by some one from his office to the
second defendant, empowering him to confine the plaintiffs in punishment cells. Held,
that, as the first defendant had ratified the illegal acts of his subordinate, both were
responsible.

The decision of the Transvaal Provincial Division in the case o f Whittaker v Roos
and Bateman and Morant v Roos and Bateman (1911, T.P.D.) overruled.

Case Information

Appeal from the decision of the Transvaal Provincial Division (WESSELS, J.,
CURLEWIS, J., and WARD, J.) in an action for damages.

The plaintiff, Whittaker, set out in his declaration that he was arrested on the 18th
May, 1911, at Johannesburg, and charged with wilfully attempting to endanger the
lives and property of others; that he was admitted to bail upon recognisances in the
amount of £1,000, but as the security was not forthcoming, he was lodged in gaol in
Johannesburg.

On the same day he was segregated and confined in the gaol in a punishment cell,
provided by law exclusively for the confinement of convicts and prisoners convicted
and sentenced for certain offences. He was kept in that cell in solitary confinement
until 30th May, 1911, and on the 30th May he was segregated and confined in another
cell and kept there in solitary confinement until 26th June, 1911.

During the whole of this period he suffered the following treatment: -

(a) He was prevented from exercising himself outside his cell save and except by
walking in solitariness in a restricted space within the precincts of the said gaol for
periods not exceeding two hours each day.

(b) From the 18th to the 30th of May, 1911, the plaintiff was prevented from smoking,
and thereafter

1912 AD at Page 94

he was similarly prevented save and except when exercising himself outside his cell.

(c) He was prevented from receiving or reading any newspapers from the 18th to the
30th May, and from receiving or reading any books other than books from the Prison
Library.

(d) He was prevented from seeing or conferring in the said gaol with his legal adviser
William James MacIntyre or any other legal adviser from the 18th May till the 14th
June, 1911.

(e) He was prevented from seeing or talking to visitors.

(f) He was prevented from wearing boots save and except when exercising himself
outside his cell.

(g) Articles other than prohibited articles in his possession at the time of his arrest
were taken from him and retained in custody by the gaol authorities.

(h) He was placed in handcuffs on the 18th May, the 20th May and the 30th May,
1911, and on those dates he was escorted through the precincts of the said gaol in
handcuffs followed by an armed warder.

(i) He was tormented by the sound occasioned by the administration of corporal

punishment to prisoners at various times whilst he was confined in the said
punishment cell.

(j) From the 18th May till the 7th June, he was prevented from shaving.

The plaintiff was so treated at the instance and command of the defendant Roos, who
was Director of Prisons in the Transvaal, and the defendant Bateman, who was
Governor of the Johannesburg gaol and in spite of complaints made to them by
himself and his attorneys. It was only in consequence of obtaining an order of Court
on the 26th June, that the treatment was discontinued.
The treatment detailed was unnecessary for the detention of the plaintiff, and was
different to that ordinarily accorded to prisoners awaiting trial. The treatment was not
justified by any act or omission of the plaintiff, and was illegal. The treatment was
further calculated and

1912 AD at Page 95

intended to impair the person, dignity and reputation of the plaintiff, and the
defendants caused such treatment in contempt of the plaintiff and as a contumelious
injury to him.

The plaintiff was tried on 28th August, 1911, and was acquitted.

In consequence of the wrongful and unlawful treatment, the plaintiff suffered assault
and confinement in an illegal manner, and had been held up to ridicule and contempt;
he had suffered great pain of mind and body, ill-health, and injury to his credit and
reputation, and he claimed £1,500 damages from the defendants jointly and severally,
with costs.

The defendants in their plea denied that the plaintiff was kept in solitary confinement,
and said that the plaintiff was confined in a punishment cell up to the 30th May
because no other cell was available, and that there was no substantial difference in
comfort, accommodation or otherwise, between a punishment cell and any other cell.

They pleaded further that the plaintiff was allowed two hours' exercise in the prison
yards every day, which was all he was entitled to. They admitted that he was
prevented from smoking in his cell, but said that this was done in terms of the gaol
regulations. They denied that he was prevented from receiving or reading newspapers
or books, or from seeing visitors or from seeing his legal advisers. They admitted that
he was prevented from wearing boots in his cell, in terms of the gaol regulations.
They denied that articles in his possession were taken from him, and said that he was
only handcuffed when outside the precincts of the gaol, in accordance with gaol
regulations.

They denied sub-sections (i) and (j) of the declaration. They denied also that
complaints were made to them as to his treatment, or that he had suffered damage but
admitted that he was acquitted. They admitted that he was segregated from the other
prisoners awaiting trial, and said that this was done for the following reasons: -

(a) Information had been received by the Deputy Commissioner of Police at

Johannesburg from one Moss and from one Sherman immediately

1912 AD at Page 96

prior to the arrest of plaintiff that plaintiff and one Morant intended to place
explosives on the tram lines during a certain strike of tram employees then existing in
Johannesburg, plaintiff and Morant being amongst such employees who were on
strike. Dynamite and other explosives were from time to time immediately prior to
plaintiff's arrest found on the lines, placing the lives of public and property in
imminent danger.
(b) The said Moss and Sherman further informed the police authorities that the
plaintiff and the said Morant were in possession of a large quantity of explasives.

(c) Plaintiff and the said Morant were then arrested, and plaintiff was found to be in
possession of two sticks of gelatine and eleven detonators, whilst in Morant's house a
coil of fuse was found concealed.

(d) The said police authorities believed on Moss and Sherman's information that
plaintiff and the said Morant were in possession of a quantity of explosives which
could not be found, and that the said strikers had no other sources for obtaining
explasives.

(e) It was feared by the said authorities that if plaintiff and Morant were allowed to
communicate with each other and with other awaiting trial prisoners it would be
possible for them to, and that it was probable that they would, endanger the safety of
the public by conveying information to other fellow strikers outside the gaol of the
whereabouts of the said explosives for the purpose of causing same to be placed on
the said tram lines, and on the request of the Commissioner of Police made on this
ground, defendants acting bona fide and in accordance with the general custom in
force in the Transvaal and other parts of the Union of South Africa from time
immemorial, and further in the belief that it was in the interests of the public safety
and with the view to preventing a potentially impending

1912 AD at Page 97

destruction of human life and property, authorised the segregation of the plaintiff
from the said Morant and the other awaiting trial prisoners.

(f) Defendants further say that between the 11th and 17th May, 1911, plaintiff placed
certain explosives on the train lines in Johannesburg, with the intention of causing
damage to life and property, and that after his arrest and during segregation in the gaol
as aforesaid no futher explosives were found on the said lines.

Without admitting liability, the defendants had tendered £20 to the plaintiff, which he
had taken on account.

The plaintiff in his replication denied that there was any such custom as there was
said to be in sub-section (e) of the plea, and said that if there was, the custom was
unreasonable; and otherwise joined issue.

The case of Morant against Roos and Bateman was heard with that of Whittaker, the
plaintiff (Morant) setting out in his declaration practically similar allegations to those
of Whittaker with the exception that he was liberated on the 8th June, and that he was
discharged by the Magistrate on that date.

The plea to Morant's declaration was in similar terms to the plea in Whittaker's case,
with the exception that sub-section (f) read as follows: ---

After the arrest of plaintiff and the said Whittaker, and during their segregation in
gaol, no further explosives were found on the tram lines."
The evidence, which substantially bore out the statements in the declarations, will be
found sufficiently indicated in the judgments below. At the trial the Court allowed the
pleas to be altered so as to include a statement that the plaintiffs were not treated as
alleged at the instance and command of the first defendant. This statement was not
upon the record on appeal.

The case was heard before WESSELS, J. CURLEWIS, J., and WARD, J.

The facts as found by the Court were as follows: ---

In January, 1911, there were some differences between the tramway employees and
the Municipality of Johannesburg which

1912 AD at Page 98

culminated in a strike. The men, however, went back to work, and the trams were run
as usual until the 12th of May, 1911, when a general strike took place and the running
of the trams was suspended. This strike was proclaimed on the 11th of May and at
midnight of that day the men ceased work.

The plaintiff Whittaker had been employed as a conductor on the tramway from 1907
to the date on which the employees went on strike. Soon after the strike there was a
considerable amount of violence used, both at the power station and along the line.

On May 13th, an article appeared in a newspaper called "The Worker," headed "Rifles
v Right." It contained the following words: "As we are allowed only another ten
minutes to put in final copy, we shall conclude with a positively hilarious yarn which
had its foundation in the Chicago Street car strike. 'There's a deal o' humour in it,' as
the Aberdonian said. The blacklegs drawing the street cars were frightened off by an
infinitesimal 'dose' of nitro being placed in the points. Ha! Ha!"

On the following day, Sunday, the 14th, at about 6.30 a.m. a stick of dynamite with
detonator was found on the tram line at Turffontein. On the same day another stick
with detonator was found between President Street and Park Road. On the 15th
dynamite was found with detonators at the Kimberley Road, Booysens. On the 17th,
two different sticks of dynamite were found at the corner of Mooi and Main Streets.
That is to say between Sunday morning and Tuesday midday there had been five
attempts to blow up the trams.

On the afternoon of Wednesday, the 17th May, one of the tramway employees named
Sherman called upon Mr. Moss, the Chairman of the Municipal Tramways
Committee, and informed him that he could give information as to the persons who
placed the dynamite on the lines. Mr. Moss immediately communicated with Major
Mavrogordato, the Chief of the Criminal Investigation Department, and these two
interviewed Sherman. The case was then handed over to Detective Hill to take such
steps as he thought proper.

On the night of Wednesday, the 17th, plaintiff Whittaker was arrested whilst in
company with Sherman, and upon his person in an overcoat were found two sticks of
dynamite, a full box of detonators and two loose detonators. On the following day he
was brought before the Magistrate and bail was fixed at £1,000. Not being able to find
this bail Whittaker was transferred to the Johannesburg Gaol known as the "Fort." He
was there placed in that part of the gaol which is set apart for punishment cells and
incarcerated in a punishment cell nine feet by four, twelve feet high, with no window
but a small louvre high up through which very dim light was admitted. On the 29th
May he was brought down for the preliminary examination before the Magistrate and
in the Court-yard of the Magistrate's Court he spoke to his attorney, Mr. McIntyre,
whom he informed that he was being confined like a prisoner undergoing solitary
confinement. Mr. McIntyre thereupon sent a telegram to the Minister

1912 AD at Page 99

of Justice in the following terms: --- Whittaker and Morant are suffering solitary
confinement whilst awaiting trial. We urgently appeal for usual treatment only." On
the same day Mr. McIntyre addressed a letter to the Minister of Justice pointing out to
him that both Whittaker and Morant had been lodged in solitary confinement
punishment cells ever since the 18th May as though they were convicted prisoners
subject to such harsh punishment. He also pointed out that they were only allowed
two hours' exercise during the twenty-four.

On the 30th May the first defendant, Mr. Roos, in his capacity as Secretary for Justice
wrote a letter to the effect that he had been requested by the Minister for Justice to
inform Mr. McIntyre that it was considered desirable in the interests of justice to
segregate these men, but that instructions had been given to remove them from the
cells in which they had hitherto been confined. McIntyre was also informed that if he
wished to see his clients he was to take steps to get the necessary authority from the
police. Whittaker and Morant were thereupon transferred from the punishment cells to
other cells in the awaiting trial prisoners' quarters and kept there segregated from one
another and from the public.

On the 10th of June, McIntyre wrote to the Secretary for Justice informing him that he
had called upon the Deputy Commissioner of Police to get permission to see the
accused, and that that gentleman had informed him that permission would have to be
granted by the Chief of the Criminal Investigation Department. He further informed
Mr. Roos that he had endeavoured to get that permission, that he had called at the
office of the C.I.D. and that he had telephoned to Major Mavrogordato, who however
replied that he could do no official business over the telephone. He went to see Major
Mavrogordato personally, but the latter said he was too busy to see him. To that letter
the Secretary for Justice sent Mr. McIntyre no reply.

On the same day Mr. McIntyre wrote to the Deputy Commissioner of the C.I.D and
again complained that he could get no permission. To that he received a reply from
Major Mavrogordato on the 13th June that he should apply through the Public
Prosecutor in charge of the case. On the 8th of June Morant was discharged.

When McIntyre fould that he could obtain no redress, either from the Minister for
Justice or from the first defendant, the Secretary for Justice, who is also the Director
of Prisons --- and that he was put off by Major Mavrogordato, and could not obtain a
permit from that official, he approached the High Court of the Witwatersrand by
petition for a rule nisi, calling upon the Governor of the Johannesburg Gaol to show
cause why accused should not be relieved from solitary confinement, and why they
should not receive the usual treatment of prisoners awaiting trial. A rule was
thereupon granted calling upon the Governor to show cause on the 23rd June why
William John Whittaker should not

1912 AD at Page 100

be relieved from solitary confinement, and why he should not receive the usual
treatment of prisoners awaiting trial.

On the 23rd a postponement was granted to enable Mr. Roos to file an affidavit. The
matter came before Mr. Justice MASON on the 26th of June, when the Court declared
that the Governor of the gaol was not entitled to treat the applicant differently from
any other prisoner who has been committed for trial by virtue of any instructions from
the Director of Prisons or by reason of circumstances not coming within the gaol
regulations or affecting the discipline and proper management of the gaol (1911, W.
L. D. 139).

To this an appeal was noted on the 13th July against the order of Mr. Justice MASON.
In due course the appeal was heard and dismissed, the rule nisi being confirmed (1911
TPD 798).

The prisoner Whittaker was brought to trial at the Criminal Sessions, tried by a Judge
and jury, and acquitted.

Judgment was delivered by WESSELS, J. He held, with regard to the allegation that
the plaintiffs had been prevented from seeing their legal adviser, that Roos' letter of
30th May should not be read as a refusal to allow McIntyre to see his client, and that
there was no evidence that Bateman refused McIntyre access to his client. He held,
further, that Bateman did not know personally of visitors being refused access or
letters or books being withheld from the plaintiffs. With regard to the handcuffing of
Whittaker, it was held that the Court ought not to interfere with the discretion of the
gaoler in placing or not placing handcuffs on a prisoner, and that in any event there
was no proof that Bateman gave special instructions to the warder in this respect. He
attached no importance to the complaints as to boots, or as to shaving, but thought
that there was reason to complain of the plaintiffs being prevented from smoking and
being compelled to listen to the infliction of lashes. Dealing with the responsibility of
the first defendant for the treatment of the plaintiffs, the Court said: ---

The next fact that I have to enquire into is whether the treatment to which the
plaintiffs were subjected in the gaol at Johannesburg was at the instance and
instruction of the first defendant. Now Mr. Batemam in his evidence tells us that he
received instructions from Pretoria that he was to segregate the prisoners so that they
should not see each other or any of the outside public. He received these instructions
by telephone. He tells us that the speaker was not Mr. Roos, but he recognized the
voice as that of a clerk in the head office, though he does not

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know to whom the voice belongs. He says that when he received the communication
to segregate the prisoners he replied that he could not carry out the instructions unless
he put them in the punishment section. After a pause in the conversation the clerk
informed him that it was all right --- he was to put them in the punishment section.

Now Mr. Roos swears that the only order that he gave was that the prisoners should
be segregated, and he swears that he did not tell Mr. Bateman to put them in the
punishment section, nor did he give instructions to that effect. Mr. Baumann, the chief
clerk, was called by Mr. Smith, but he also was unable to throw any light upon the
subject. As it stands, therefore, an important communication was conveyed to Mr.
Bateman from the head office of the Director of Prisons, and we cannot trace by
whom that message was sent. I have no reason to doubt Mr. Bateman's statement,
though I must point out that in the note made by Mr. Bateman at the Johannesburg
end there appears nothing about any instruction to place the prisoners in punishment
cells. No record has been produced confirming the telephone message, and therefore I
am led to conclude that an important and unusual communication took place between
the office of the Director of Prisons and the Governor of the gaol at Johannesburg
without having been recorded on paper so that we may know exactly who is to blame
for what took place.

Now Mr. Roos in this case is not sued in his capacity as Director of Prisons, but in his
personal capacity, and therefore it is essential to show that Mr. Roos gave the
instructions to place the prisoners in the punishment cells. Mr. Roos is not personally
responsible for the unauthorised act of a subordinate, and as Mr. Roos swears that he
gave no such instructions, and there is no proof to the contrary, I am obliged to accept
his statement. I cannot however refrain from pointing out what serious consequences
may flow from giving important instructions by telephone without placing upon paper
a record of the instructions given. I must presume that Mr. Roos has not been able to
find out who the clerk was that dared, off his own bat, to transmit these instructions,
for otherwise, as a high official in the department concerned in the administration of
justice, he would no doubt have furnished us with that information.

The Court held, further, that the mere segregation of awaiting trial prisoners was not
illegal, but that their segregation in the punishment cells from 18th to 30th May was
illegal. With regard to their treatment after the 30th May and to the amount of
damages, the Court said: ---

On the 30th of May they were removed from the punishment section, handcuffed, and
taken to the awaiting trial section. The cells were larger (about three times the cubic
space they had

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before) and there was a window admitting light; there was also a chair in addition to a
stretcher. So far there was an improvement in their condition, but instead of receiving
an amount of exercise equal to that enjoyed by other prisoners they were given less
than they had received in the punishment cells. Instead of two hours a day they now
received only one hour out of the twenty-four. Smoking was, however, conceded.
This lack of exercise caused a disturbance in Whittaker's health and therefore the
doctor ordered an extra hour a day exercise, making two hours out of the twenty-four.
Now there is no doubt that this treatment was very different from that accorded to
other prisoners, and it is difficult to see why the prisoners could not have been given
more exercise, each under the control of a warder. This would have prevented them
from communicating with the outside public if necessary. Nor can I see why, when
the strike was over and the tramways were running as usual the segregation was not
discontinued. However adequate the reason for segregation may have been up to the
end of May it certainly was not a valid reason after that date and therefore more
harshness was employed towards the prisoners than was necessary for their detention
and therefore, in accordance with the principle laid down in the appeal case, this was
wrong.

Therefore, although I do not think that the mere fact that the prisoners were
segregated from one another was a ground for complaint, I do think that they were
treated more harshly than the circumstances demanded and that they were in fact,
though not in name, being punished. Mr. Esselen has argued that this is an incorrect
view, inasmuch as the defendants did not intend to punish but merely to detain. This
argument is not sound. Though I am not satisfied that there was any intention to
punish it nevertheless appears to me immaterial. The question is not whether the
authorities intended to punish, but whether the effect of the treatment to which the
prisoners were subjected was in effect equivalent to punishment. If it was, the
intention of the officials is quite immaterial as to whether a delict was or was not
committed, though it may be material as to the amount of damage. In accordance
therefore with the principles laid down in the appeal case I think the plaintiffs have a
ground of complaint as regards this period also. I want it clearly understood that this
does not arise merely from the fact that they were segregated, but from the cumulative
treatment accorded to them.

This leaves me with the last question, viz., whether the plaintiffs are entitled to
damages, and if so, how much.

In the appeal case Mr. Justice BRISTOWE pointed out that there are several cases
which show that a prisoner who is illegally treated in gaol has a right of action. In
Corbett v Grey (4 Exch at p. 736) Baron PARKE stated that "The removal of a person
from one part of a prison to another in which by law he ought not to be confined is
prima facie a trespass."

There can be no doubt therefore that placing an awaiting trial prisoner in a part of a
gaol exclusively set aside by law for

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convicts is a delict. It is also a delict to treat an awaiting trial prisoner so harshly that
his treatment amounts not to detention but to punishment. Our law would indeed be
very defective if it were not so, for then unfortunate persons, perhaps wholly innocent,
who are detained on suspicion of having committed a crime might be compelled to
undergo considerable punishment during the time that they should merely be detained.
As is rightly remarked by Mr. Justice BRISTOWE in the appeal case, "The only way
to effectually exclude the possibility of partiality or caprice, or even malice, is to
confine the discretionary power of prison officials to treat an individual with
exceptional rigour within as narrow limits as possible."
Both the plaintiffs are therefore entitled to damages on account of the illegal treatment
to which they were subjected, Morant from the 18th May to the 8th June, and
Whitaker from the 18th May to the 26th June.

In order, however, to hold an official personally liable and to obtain damages from
him de bonis propriis it is necessary to prove that he is personally responsible for the
delict. Now in this case there is no proof that Mr. Roos gave instructions to put the
plaintiffs in the punishment cells or that he did more than to order them to be
segregated. As according to my view the mere segregation is not in itself an illegal
act, it seems that no action can be maintained against Mr. Roos. Mr. Bateman is,
however, responsible, because as Governor of the Johannesburg Gaol he gave the
instructions which led first to the incarceration of the plaintiffs in the punishment cells
and then to their treatment whilst in the awaiting trial section. He cannot shield
himself behind Mr. Roos because he also is unable to prove that he received the
instructions from Mr. Roos.

We now come to the difficult question of determining what amount of damages

should be awarded to the plaintiffs.

In determining what amount of damages we ought to award to the plaintiffs we should

bear in mind two principles: ---

(1) That where an official is not actuated by malice but acts bona fide the Court
should not award vindictive damages against him.

(2) That a person who has been illegally treated in prison should be compensated for
the extra amount of discomfort he has suffered.

Mr. Smith in his able argument has urged upon us that we should give exemplary
damages in this case so as to vindicate the rights of awaiting trial prisoners and so that
the public may know that the Court speaks with no uncertain voice when it steps in to
protect the oppressed against official oppressors.

Now I quite agree that where there is wilful oppression or conduct on the part of an
official which amounts to recklessness or carelessness about the liberty of citizens
then the Court must vindicate personal liberty and award such substantial damages
that the award of the Court may act in part as a deterrent. But

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the Judge is bound to maintain a due sense of proportion, where the acts of an official
are guided rather by consideration for the great bulk of the citizens and with no
intention to punish a prisoner and certainly without malice, then the Court would not
act justly if it not only compensated the complainant but also punished an official for
what at its highest may be termed an error in judgment.

In this particular case we are not dealing with wrongful imprisonment or malicious
prosecution or an action for defamation but with the case of a plaintiff who was
legally imprisoned but who was placed in somewhat greater seclusion and under
somewhat more rigorous conditions than other prisoners of his class. The awaiting
trial prisoner is after all a prisoner and he is bound to endure a certain amount of
personal restraint and to be subjected to a certain amount of prison discipline. The
treatment the plaintiffs complained of is a matter of degree. The gravamen of their
complaint is that the restraint and the discipline they were subjected to were greater
than that to which others were subjected.

Now there can be no doubt that the circumstances of their arrest were serious. There
was a strike of tramway officials, the use of dynamite was, if not suggested at least
hinted at in an artisan paper, dynamite and detonators had been deliberately put on the
rails and both of the prisoners were found in possession of materials used for
explosions. The plaintiff Whittaker was found with dynamite and detonators on his
person, whilst some 50 feet of fuse was found in the house of Morant. Both of these
men sympathised with the strikers and both were tramway officials. This alone would
justify the police in taking precautionary measures to prevent these persons from
communicating with their friends whilst the strike was still active. But this was not
the only information that the police had. A member of the strike committee, Sherman,
also a tramway employee, had actually informed the police that Whittaker had put
dynamite on the line and that Morant was also concerned in the dynamite plot and not
only had he given the information but he had actually offered to show the police that
he was correct, and it was through his instrumentality that Whittaker was arrested
with the dynamite upon him.

In such dangerous moments panic very easily seizes the bravest officials, and anxious
for the safety of the public, the police thought it their duty to segregate persons whom
they believed to be dynamitards, both from each other and from other persons. They
did so as they tell us, because they thought that these men were the most active in the
use of explosives, and because they feared that the prisoners might communicate to
their friends where their stores of dynamite were, and so enable the latter to carry on a
policy of terrorising motormen and guards who had seceded from the strike. We know
now that these excessive precautions were not necessary, but this is to be wise after
the

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event. The precautions taken in Whittaker's case were unnecessary after Morant left
the gaol and also after the trams were running smoothly, but this was, as I have said
before, an error of judgment.

Mr. Esselen has urged upon us that men like Whittaker and Morant are not men to
whom heavy damages should be awarded. Even if we accept as truth every word that
these men have told us, then they are not individuals with whom we ought to
sympathise. Whittaker certainly showed sympathy with those who used dynamite, for
when Sherman told him where the dynamite was, he was, according to his own story,
most anxious to remove it from the neighbourhood of the committee room of the
strike. He did not propose to give it up to the police and so show his disgust with
those who would kill innocent people to further their own ends, but he sought to hide
it. When Sherman plainly showed him that he was, if not a dynamitard, at least a
strong sympathiser with those who used dynamite, Whittaker was actually prepared to
carry the dynamite and detonators for this man and to put himself out a great deal to
help him. Whittaker's conduct on his own showing was that of a man who
sympathised with dynamitards and who was willing to help them. Morant's story is
most improbable, and he too, instead of delivering up to the police the fuse which he
said he had found amongst his wife's parcels, hid it in his coal room. These are not
men who deserve exemplary damages.

Now in the case of Morant we doubt if £20 is not too much, but as that has been
tendered there is no need to say anything further on the subject.

Whittaker no doubt suffered a longer period of confinement than Morant, and he was
put to some expense in vindicating his rights over and above his taxed costs. We have
examined these items in the taxed bill and we do not think that they can be said to
have been necessary. That he suffered considerable discomfort there can be no doubt
of, and that he was confined in a wrong part of the gaol is also true, yet the discomfort
additional to what he would have legitimately suffered was not so great that we ought
to award him more than the £20 tendered.

The plaintiffs are therefore each entitled to the £20 tendered and as they should have
accepted this tender they will have to pay the costs of the action.

The result of the above is: ---

(1) That there should be judgment for the defendant Roos, with costs.

(2) That there should be judgment against the defendant, Bateman in both cases for
£20.

(3) That, as Bateman has tendered after demand the amount of £20, he is entitled to
the costs of the action.

From this decision appeals were now brought by the plaintiffs.

1912 AD at Page 106

P. F. Smith, for the appellants (plaintiffs): The first question is whether Roos was
responsible for the instructions issued to Bateman; such responsiblity was not denied
in the plea and an amendment was applied for after the evidence had been taken; this
amendment surprised and prejudiced the plaintiffs, and should have been asked for
before.

[SOLOMON, J.: Does an appeal he as to amendment of pleadings? It is an

interlocutory order.]

[INNES, J.: It disposed of one section of the case, and it could not be put right
otherwise.]

If the notice of appeal does not include the amendment, I would apply to amend the
notice so as to appeal from the amendment as well.

(E. Esselen, K.C., raises no objection.)

We should have the costs up to the date of amendment. See Lowther v Heaver (41
Ch.D. 248, at p. 261), Edevain v Cohen (41 Ch. D. 563), Ferreira Deep, Ltd.v Olver
(1903 TS at p 153).

Roos has admitted that he gave instructions that the men should be strictly segregated
from each other and from other prisoners, see Ordinance 6 of 1906 (T.), sect. 4, 37.

Segregation is illegal if not authorised by regulation duly promulgated by the

Government. An awaiting trial prisoner can only be treated so as to insure his
presence at the trial by the gaol regulations promulgated under Government Notice
1349 of 1906. The Governor has complete control and is responsible for carrying out
the regulations. Ordinance 6 of 1906, section 22, regulates the use of irons, section 26
regulates punishment cells, and section 37, sub-section (14) regulates solitary
confinement which is a punishment only to be given after trial to a convicted prisoner.
Regulations 496 and 515 prohibit segregation in the day-time, except in case of
convicts. Smoking is regulated by regulation 641, and regulation 631 provides for
visits by friends and legal advisers by permission of the proper officer, who by
regulation 73 is the Governor of the gaol. Regulation 569 shows that the Director of
Prisons also has power to

1912 AD at Page 107

issue permits. Exercise is regulated by regulation 537 and regulation 550. It is evident
that Roos was aware that the plaintiffs were in punishment cells, and there is no
statement that their presence there was unauthorised.

It is illegal to refuse the admission of a legal adviser without the leave of the police, as
they are allowed as of right to see prisoners. Roos must have issued instructions for
the treatment which was given.

[INNES, J.: Do you admit that Roos is sued in his private capacity?]

Yes. Roos attempted to justify the treatment, and stated in his plea that Whittaker was
guilty of putting down dynamite, when he had been acquitted of doing so. See Raleigh
v Goschen (1898, 1 Ch.D at p. 77), Corbett v Grey (19 L.J., Exch. 137; 4 Exch at p.
136). There was no reason in the conduct of the prisoners to justify their segregation.
Roos handed over the administration of the gaol as regards these prisoners to the
Criminal Investigation Department. As to handcuffs, see Forde v Skinner (4 C. and P.
239), Whittaker v Governor of Johannesburg Gaol (1911 WLD 139 and 798).

The action is grounded on trespass to the person, and on contumelious treatment, see
Spiegel v Miller (1 Juta at p. 274). The attempt to justify the treatment is a
justification for heavy damages, see Huckle v Money (95 Eng. Rep. 768; 2 Wilson at
p. 206), de Villiers v Van Zyl (F. 77), Edwards v Hyde (1903 TS 381), le Roux v
Zeeman (13 CTR 338), Benjamin v Keet (2 S.A.R at p. 187), Foxhall v Barnet (118
Eng. Rep. 1014, 23 L.J., Q.B. 7), Wilson v Halley and Others (1903 TH at p 199). As
to access of friends, see Li Kui Yu v Supt. of Labourers (1906 TS at p 187).

E. Esselen, E.C. (with him T. J. Roos), for the respondents (defendants): If the Court
is with the appellants as to the amendment it makes no difference. An amendment
may be made at any stage --- see Transvaal Rule of Court 36. The necessity for an
amendment was due to an oversight; there was no prejudice to the plaintiff. Roos in
the correspondence and evidence admits he gave instructions to segregate in his
official capacity.

1912 AD at Page 108

[SOLOMON, J.: The amendment enables you to make a difference between the
position of the two defendants, whereas they took up the same position in the plea by
pleading a joint tender.]

I admit it was illegal to put the plaintiffs in punishment cells, but the object of the
defence was to show that there was no animus. The idea from first to last was that
they were segregated to prevent their concocting a defence, see Whittaker v Governor,
Johannesburg Gaol (1911 WLD at p 143). The defendants took the steps they did in
the best interests of the public. The question of punishment cells is merely a technical
point. The only instructions Roos gave were to segregate and to refer applications for
visitors to the police.

The Court below did not believe Whittaker in his explanation as to being in
possession of dynamite.

The Johannesburg gaol is a convict prison; there is no separate prison for prisoners
awaiting trial, they must be confined in convict prison, and if they are segregated it
must be in punishment cells --- see Ordinance 6 of 1906, section 4, and section 48 of
the regulations. An awaiting-trial prisoner may be treated exactly like a convict except
for the privileges granted by regulations 631 to 641. Gaols exist for the prevention of
crime, as well as for the detention of prisoners. If people are found with dynamite, it
is for the public benefit that they are segregated. One of the objects of detaining
awaiting-trial prisoners is to prevent further crime. We say that we acted bona fide,
not that the plaintiffs were guilty.

[SOLOMON, J.: You charge him in your plea with charges on which he was already
acquitted.] Yes, but we failed to prove it.

[INNES, J.: Should not that be taken into consideration in assessing damages?]

The criminal case has nothing to do with the civil case. What was the use of hiding
the dynamite unless for further use? The reason for referring visitors to the police was
in order to obtain the names of the visitors.

There are no particulars given of damages. The damages could not include more in
the way of costs than the taxed costs in the application before MASON, J.

1912 AD at Page 109

Smith, in reply: In this case the defendants have failed to justify their treatment. See R
v Cobus Stoltz (2 EDC 242). On damages, see Natal Land Co. v Schussler & Co. (5
N.L.R at p. 21.).
Cur. adv. vult.

Postea, at Cape Town, on March 9th.

Judgment

Lord DE VILLIERS, C. J.: This is an appeal by the plaintiff against the judgment of
the Transvaal Provincial Division in an action for damages brought against the
defendant Roos, who is Director of Prisons, and the defendant Bateman, who is
Governor of the Johannesburg gaol. The damages were claimed on the ground of
illegal treatment to which the plaintiff was subjected during his confinement in gaol
as a prisoner awaiting trial. Judgment was given for Roos, with costs, and for the
plaintiff for £20 as against Bateman, but as this amount had been tendered by him he
was declared to be entitled to his costs against the plaintiff.

The acts constituting the alleged illegal treatment were set out in full in the
declaration. The plaintiff had been arrested and charged with wilfully attempting to
endanger the life and property of others during the recent tramway strike at
Johannesburg. He was admitted to bail upon recognisances amounting to £1,000, but
as he was unable to find bail he was lodged in gaol. For twelve days he was
segregated and confined in a punishment cell provided and appropriated by law
exclusively for the confinement of convicted persons. Thereafter, on complaints made
to Roos, the plaintiff was removed from the punishment cell, but he was still kept
segregated and treated in many respects differently from other prisoners awaiting trial
until the Transvaal Provincial Division issued an order that he should be allowed the
same degree of liberty as is allowed, to other prisoners committed to trial. No
complaint is made by the plaintiff as to his treatment after the date of that order, but as
to his treatment before that date he states that he was practically kept in solitary
confinement, that he was prevented from

1912 AD at Page 110

conferring in gaol with his legal adviser or from seeing visitors, that he was prevented
from reading books except when taking exercise outside his cell, and that on three
days he was placed in handcuffs and escorted through the precincts of the gaol by an
armed warder. There are other complaints, and in regard to those already enumerated
I shall confine my remarks to only three, namely, to the plaintiff being confined in a
punishment cell, being prevented from seeing a legal adviser and being handcuffed.

The defendants joined in their defence, and no attempt was made in their plea to
separate the case of the one defendant in any particular from that of the other. They
admitted that the plaintiff had been confined in a punishment cell, but they said that
this was done because no other cell was available at the gaol. They added that there is
no substantial difference in accommodation or otherwise between a punishment cell
and any other cell. They denied the allegation that the plaintiff had been prevented
from seeing his legal adviser. As to the handcuffing, they stated that the plaintiff was
only handcuffed when outside the precincts of the gaol, and that this was done in
accordance with the goal regulations. As their reasons for segregating the plaintiff
from the other prisoners the defendants stated (1) that they had received information
that the plaintiff intended to place explosives on the tram lines during the strike, (2)
that the plaintiff was found in the possession of some gelatine and detonators, (3) that
it was feared by the authorities that if the plaintiff were allowed to communicate with
Morant, another prisoner, and with other awaiting trial prisoners it was probable that
they would endanger the safety of the public by conveying information to their
fellow-strikers as to the whereabouts of explosives, and (4) that the plaintiff did in
fact, before being in prison, place explosives on the tramline with the intention of
causing damage to life and property.

In regard to this last allegation, I must express my surprise that it should have been
made seeing that before it was made the plaintiff had been acquitted of the charge of
placing explosives on the line. At the criminal trial.

1912 AD at Page 111

he gave a full explanation of the circumstances under which the explosives were
found in his possession. The chief witness against him was an informer, named
Sherman, who stated that the plaintiff had admitted to him that he had laid dynamite
on the lines. He also stated that, acting under the instructions of Mavrogordato, the
chief of the Criminal Investigation Department, he had arranged to meet the plaintiff,
who wished him, Sherman, to assist in carrying the dynamite as there was a lot of it.
On a signal given by Sherman, the plaintiff was arrested and a small quantity of
explosive was found in his possession, while, strangely enough, Sherman who was to
assist him had no explosives at all with him. The explanation given by the plaintiff
was that he had been trapped by Sherman into coming to his, Sherman's, assistance to
carry the explosives, that his reason for assisting Sherman was that he feared, if the
dynamite was not taken away from the place of concealment indicated by Sherman,
which was near to the strike headquarters, the strikers would all get into trouble. At
this time a reward of £200 had been offered for information leading to the conviction
of the supposed dynamiters. The antecedents of the informer were, to say the least of
them, very doubtful and the jury must have disbelieved him because they acquitted
the plaintiff. For the defendants, therefore, now to rely upon the plaintiff's guilt as one
of the grounds justifying their treatment of him as a prisoner awaiting trial appears to
me to be a serious aggravation of their delict, if delict there was on their part.

Until after the evidence in this case had been closed in the Court below, no attempt
was made to attach greater liability to the one defendant than to the other. They had
jointly tendered to the plaintiff the sum of £20, and neither of them withdrew his
tender. The defendant Bateman said in his evidence that he had received instructions
that the plaintiff and Morant had to be segregated strictly from each other and other
prisoners, and that visitors were to be referred to the Criminal Investigation
Department. He further stated that, as the cells in the awaiting trial section were
undergoing spring cleaning, he had to send the plaintiff to a punishment cell, and that

1912 AD at Page 112

before doing so he had telephoned to the defendant, Roos, that he could not carry out
his instructions unless he put the plaintiff in the punishment cell. The reply came back
by telephone that he was to do so, but the voice, although coming from Roos' office,
was not that of Roos himself. Roos, in his evidence, said nothing from which it could
possibly be inferred that he repudiated the act of his subordinate, Bateman, in placing
the plaintiff into a punishment cell. His evidence on this point is as follows: "I did not
know then the names of the two prisoners. I got instructions telephoned, not in
writing, they were that these two men were to be segregated from one another and
from all others, and that visitors applying to see them were to be referred to the police.
May be to the C.I.D. Gave no instructions as to details." Subsequently an application
was made to the Court for leave to amend the plea by inserting a denial of the
plaintiff's statement in the declaration that " the plaintiff was treated as aforesaid at
the instance and command of the defendant." The Court ordered that the amendment
be allowed, and the plaintiff's Counsel has applied to this Court for leave to appeal
against this order also. The defendants' Counsel did not object, but the amendment
does not in any way affect the decision of the case. As the amended plea stands there
remains a distinct adoption by Roos of the acts of his subordinate, Bateman. The
confinement in a punishment cell is justified on the ground that no other cell was
available at the gaol, and there is stated to be no substantial difference in comfort,
accommodation or otherwise between a punishment cell and any other cell. As to the
other acts of illegal treatment, they are either denied or explained, and the clear
inference to be drawn from the joint plea is that both defendants hold themselves
equally responsible for the treatment to which the plaintiff was subjected. If any
doubts were left on the matter it would be removed by the fact that both defendants
joined in making a tender to the plaintiff of £20. Whether or not the second telephone
message, which approved of the confinement in the punishment cell, was sent by
Roos' order, there was a ratification by him of the acts of Bateman. This is essentially

1912 AD at Page 113

a case in which a ratification by a superior officer of the act of his subordinate should
be regarded as equivalent to a prior command. That this rule was adopted as far back
as the time of Ulpian even in the case of delicts is clear from the Digest (43, 16, 1, 14)
where the better opinion is stated to be that in wrong doing a ratification is placed on
the same footing as a prior command.

Rectius enim dicitur in maleficio ratihabitionem mandato comparari. If Bateman was

guilty of an actionable wrong towards the plaintiff the defendant Roos must be
deemed equally guilty, and the next question is whether the acts complained of, or any
of them, constitute such an actionable wrong.

The Counsel for the defendants has not attempted to argue that, if the acts complained
of were illegal, the plaintiff is not entitled to damages for the injury done to him. The
broad principle is that a delict is committed where a person is illegally harmed
contrary to his rights, not arising out of contract or quasi contract, by the dolus or
culpa of another, and that where once the illegality is established the person
committing it, if doli capax, is liable even though no actual evil intention is proved
(see Voet, 47, 1, 1). As was justly observed by Pollock (On Torts, 2nd edition, p. 17),
" the Roman conception of delicts altogether supports (and by a perfectly independent
analogy) the conception that appears to underlie the English law of torts. Liability for
delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or
wanton disregard of what is due to them (dolus), or of a failure to observe due care
and caution which has similar though not intended or expected consequences
(culpa)." In the present case the illegality of the confinement in a punishment cell is
undoubted. The 26th section of Ordinance 6 of 1906 expressly enacts that punishment
cells shall be provided and appropriated exclusively for the confinement of convicted
prisoners, but the excuse is made that no other cell was available at the gaol for the
segregation of the plaintiff. That would be a reason for not segregating the plaintiff,
but it affords no reasonable excuse for not only segregating but practically punishing
him before he had been tried. As to

1912 AD at Page 114

the alleged danger of the plaintiff informing others outside the gaol as to the
whereabouts of concealed dynamite, that danger would have been still greater if the
plaintiff had been let out on bail, and yet the authorities were quite willing that he
should be let out on bail if he could find recognisances for £1,000. It surely cannot be
the policy of the law that wealth or position should give this enormous advantage to
an accused person. It often acts harshly enough that a man without money or friends is
kept imprisoned until he can be tried, while the man of position is free until tried, with
every opportunity of preparing his defence. The harshness would become absolutely
intolerable if directors of prisons or governors of gaols had it within their power to
add to the misfortune of imprisonment the disgrace and torture of confinement in a
small punishment cell of four feet by nine without sufficient light, with no bed to
sleep upon, with insufficient means of exercise, without books to read, without the
companionship of a single soul, and without even the consolation afforded by a
smoke. The object of the imprisonment before trial is to obtain the appearance of the
accused at the trial, and not to punish him except for offences committed against the
regulations of the gaol. The plaintiff was a perfectly well-behaved prisoner, he gave
no trouble of any kind. He did not even make complaints about his treatment, and yet
he was punished as if he had been a hardened offender. There appears to me to have
been no excuse for the handcuffing to which he was subjected. The defendants may
not have been aware of it, but it is reasonably clear that if he had not been confined in
the punishment cell he would have escaped this addition to his sufferings. As to his
being deprived for a considerable time of the opportunity of consulting his legal
adviser, the defendant Roos cannot, in my opinion, throw off the responsibility. On
May 29th the plaintiff's attorneys wrote as follows to the Minister of Justice: "We
venture to point out in our most humble opinion there is no cause for the men to be
put in solitary confinement whilst awaiting trial, and think same is contrary to all
usage and law. Further, our Mr. McIntyre has been refused admittance to them to
consult

1912 AD at Page 115

with them on their defence. The men are also refused smoking, which is not denied
usually to those awaiting trial. We ask you to be good enough to grant an immediate
order that they be released from the solitary confinement, and that they receive
treatment in the usual way of prisoners awaiting trial." Then followed this postscript "
Mr. McIntyre was informed at the prison that he would have to get special leave from
the police." The answer to this letter was written by the defendant Roos, as Secretary
for Justice, and was as follows: "I am desired by the Minister of Justice to inform you
that it was considered desirable in the interests of justice to segregate these men.
Instructions have, however, been given for their removal from the cells in which they
have hitherto been confined. It is presumed that if a member of your firm desires to
visit these men you will take steps to get the necessary authority from the police, as
indicated in the postscript to your letter under reply." On the 10th of June the
attorneys again wrote to Roos, as Secretary for Justice, as follows: "We have the
honour to inform you that on the 2nd instant our Mr. McIntyre called on the Deputy
Commissioner of Police to get permission to see the accused, and was informed that
the permission would have to be granted by the Chief of the C.I.D. Thereupon he
called at the C.I.D offices, and, as Major Mavrogordato was not there, he saw
Inspector Simpson, who kindly undertook to 'phone to the Deputy Commissioner of
the C.I.D., and inform us of his decision. Nothing was heard by us on the 3rd instant
from them, and on the 5th we again 'phoned to Major Mavrogordato asking for
permission to see the accused, and his reply was that he could not do any official
business through the telephone, and further said we should see the Public Prosecutor.
Thereupon. Mr. McIntyre went to see Major Mavrogordato, but on arrival there was
told the Chief could not see him. We should thank you to enquire into the reasons for
the refusal to see the accused." Whether or not Roos made the enquiries, he never
vouchsafed an answer to this letter. Knowing that the attorney for the plaintiff was
being driven from pillar to post in his attempts to see his client, he left the attorney
under the

1912 AD at Page 116

impression that the special leave of the police would be necessary to enable him to
visit his client. Upon this point Mr. Justice WESSELS said: "There is no doubt
whatever that Mr. Roos acted wrongly in instructing a solicitor who desired to see his
client that he should make application to the police. The police have no authority
whatever to grant a permit to a solicitor to see his client, an awaiting-trial prisoner, in
the gaol. Mr. Roos should have instructed Mr. McIntyre to proceed to the gaol, and to
demand to see his client as of right. Mr. Roos' explanation is that this was done
inadvertently because he noticed in the postscript to Mr. McIntyre's letter of the 29th,
that he was informed at the prison that he would have to get special leave from the
police. It seems difficult to understand how that postscript could have misled Mr.
Roos. One would have thought that the unusualness of the information conveyed by
that post-script would have put Mr. Roos on his guard, and shown him that incorrect
instructions were given to Whittaker's attorney, and one would have thought that as
Director of Prisons Mr. Roos would then and there have corrected the mistake." So far
I entirely agree with the learned Judge, but then he adds: "However, I am unable to
say that Mr. Roos' letter should be read as a refusal to allow Mr. McIntyre to see his
client." It certainly was not an absolute refusal, but it supported the gaol officials, who
had informed McIntyre that he would require special leave from the police, and Roos
is responsible for the delay which occurred before the client could be communicated
with.

The last question then to be determined is whether the Court below has awarded to the
plaintiff adequate damages for the illegal treatment to which he has been subjected. If
the amount of £20 is sufficient, it would make no difference in this case that the
judgment has been given for the defendant Roos, inasmuch as the money has been
received by the plaintiff, who would properly have been held liable for the costs of
Roos after the date of tender. If, however, the amount is insufficient, it is obvious that
the plaintiffs should have his costs against both defendants. In my opinion the amount
of damages awarded is
1912 AD at Page 117

wholly inadequate to compensate the plaintiff for the harsh and illegal treatment to
which he has been subjected. I quite agree with the Court below that " where the acts
of an official are guided rather by consideration for the great bulk of the citizens, and
with no intention to punish a prisoner, and certainly without malice, then the Court
would not act justly if it not only compensated the complainant but also punished an
official for what at its highest may be termed an error of judgment." The Court thus
admitted that the plaintiff should be compensated. If the plaintiff ought to be
considered guilty of the charges on which he was imprisoned and tried, I am not
prepared to say that the nominal damages awarded would not be sufficient
compensation. But the prisoner was acquitted, and this is a fact which should not have
been lost sight of by the defendants in framing their plea or by the Court below in
awarding damages. The defendants, in my opinion, greatly aggravated the injury
which they had done to the plaintiff by relying upon his guilt, notwithstanding his
acquittal, as an excuse for the illegal treatment meted out to him. I do not understand
from the reasons of Mr. Justice WESSELS that he believed the evidence of Sherman,
and disbelieved that of the plaintiff. He says that "even if we accept as truth every
word that the plaintiff has told us, then they are not persons with whom we ought to
sympathise. Whittaker certainly showed sympathy with those who used dynamite, for
when Sherman told him where the dynamite was, he was, according to his own story,
most anxious to remove it from the neighbourhood of the committee-room of the
strike." The reason, however, for his anxiety to remove the dynamite was because its
being found by the police in the neighbourhood of the committee-room would bring
all the strikers into trouble whether they were dynamiters or not. His sympathy was
with the strikers, of whom he was one, and not with the dynamiters of whom he
strenuously denied himself being one. He said in his evidence: "Never heard of
dynamite being suggested at any meeting I was at. Never heard an article called
'Rifles v Right' discussed. Never heard that a little nitro-glycerine would frighten
away

1912 AD at Page 118

blacklegs . . . He (Sherman) asked me if I had heard about dynamite being found on

rails. I told him I had. He said it was unlucky it had been found before it went off. I
told him I thought it was a dangerous thing to place there at all . . . On Wednesday
night had strikers' interests at heart. Should not like to see any of them arrested. I
objected to the use of dynamite." If therefore every word spoken by the plaintiff is
true, I fail to understand how it could be held that he showed sympathy with
dynamiters as such, and yet this is one of the grounds on which the Court below held
the tender to be sufficient. In my opinion, abuse of authority, such as has been brought
home to the defendants, ought not to be treated as a venial act to be condoned by the
payment of a few pounds. By all means let the authorities use all their efforts to put
criminals and suspected criminals under lock and key, but when once they have done
this let them remember that punishment should only begin when the guilt of the
prisoners has been established by judgment of a court of law. By allowing persons
accused of offences to be admitted to bail the law recognises that, the only object of
imprisoning those who are unable to rind bail is to secure their attendance at the trial.
The helpless prisoner who is not fortunate enough to possess money or friends with
money is entirely at the mercy of the gaol authorities, and, where a case is clearly
made out of harsh and illegal treatment of such a person in gaol followed by his
acquittal of the offence laid to his charge, it becomes the bounden duty of the Court,
which is called upon to assess the damages sustained by him, to award damages
commensurate with she degree of indignity, hardship and disgrace to which he has
been subjected. Bearing in mind that in the present case the defendants continued,
after the plaintiff's acquittal of the offence laid to his charge, to hold him out as guilty
of that offence, I am of opinion that the lowest sum which should have been awarded
is £200. The appeal will accordingly be allowed, and judgment entered for the
plaintiff against both defendants, the one paying the other to be absolved, for the sum
of £200, less the sum of £20 already paid, with costs in this Court and in the Court
below.

1912 AD at Page 119

Lord DE VILLIERS, C.J.: The case of Morant differs from that of Whittaker in this
respect, that the defendants did not in their plea charge Morant with placing
explosives on the tramlines, that his illegal treatment was of shorter duration, that he
was not tried at all for the offence of endangering life and property, for the charge was
withdrawn, and that explosives were not found on his person but in his coal-room, but
the principles laid down as governing the one case equally govern the other. The
learned Judge said of Morant that he also sympathised with the dynamiters because,
instead of delivering to the police the fuse which he said he had found amongst his
wife's parcels, he hid it in his coalroom. Morant's evidence, however, on the point is
as follows: "All I know of fuse my wife showed it to me. I said throw it away. This
was before my arrest. She said look what came on the tram to-day. It was on the
Monday. She said she had been up to town shopping, and when she got up from seat
of tram she found the parcel of fuse. I said get rid of it. They found it in the outhouse
under the coal sack in the yard in my presence. It was in a coil." It would no doubt
have been more prudent of Morant to report the finding of the fuse in the tramcar to
the police, but he also was a striker, and would not wish to bring his fellow-strikers
into trouble. By not reporting the matter to the police he showed his sympathy with
the strikers, but not necessarily with those of them who had resorted to the use of
dynamite. He was brought before the magistrate, but the charge against him was
withdrawn, and it does not appear to me to be just that substantial damages should be
withheld from him because of his supposed sympathy with dynamiters. While it lasted
his illegal treatment was as great and harsh as that of Whittaker, and he is, in my
opinion, entitled to damages of at least £100, less the sum of £20 already received by
him, with costs in this Court and in the Court below.

INNES, J.: It will be convenient, in dealing with these appeals, to obtain a general
view of the extent of the illegality involved in the treatment to which the plaintiffs

1912 AD at Page 120

were subjected, and of the nature of the remedy open to them, for a clear appreciation
of these matters will tend to facilitate the decision of the two main questions in
controversy; namely, the liability of the defendant Roos and the inadequacy of the
damages awarded by the trial court. Morant and Whittaker were charged with
attempting to endanger life and property by being concerned in placing dynamite
upon the tram rails during the continuance of a tramway strike. Had they been able to
provide the bail demanded they would have retained their liberty. Because they could
not do so they were committed to gaol. It thereupon became the duty of the Governor
to detain them in safe custody. But the sole object of the detention was to secure their
appearance at the trial. In the eyes of the law they were innocent men imprisoned
merely to ensure their attendance when duly called upon to answer the charge. The
treatment at that time accorded to awaiting trial prisoners in the gaols of the Transvaal
recognised this position. The regulations allowed such inmates special privileges, and
so long as they did not contravene the law, and submitted themselves to the necessary
discipline of the gaol they were not liable to anything in the nature of solitary
confinement. Had the treatment of the plaintiffs proceeded on those lines nothing
would have been heard of this case. But, unfortunately, the Criminal Investigation
Department intervened. The head of that department intimated through the Chief
Commissioner of Police, to the Director of Prisons, that the public interest required
that these men should be strictly segregated, and that no visitors should be allowed to
see them save those approved by the police. And orders to that effect were issued to
the Governor of the gaol. The question at once arises whether those orders were legal.
Were they such as the Director was entitled to give and the Governor was justified in
carrying out? So far as the direction to segregate was concerned, the trial Court
answered this question in the affirmative. There being nothing in the law or the
regulations prohibiting segregation, it was, in the opinion of the Court, prima facie,
not illegal, and might, under certain circumstances, be beneficial; and, that being so,

1912 AD at Page 121

the order was one which could properly be given and carried out. With this view I am
unable to agree. It is not necessary to decide whether an awaiting-trial prisoner, guilty
of no gaol offence, could be segregated under any, and, if so, under what conceivable
circumstances. Because it is clear to me that the order of segregation made in this
particular case was illegal. And for the simple reason that it differentiated between
these two men and all the other awaiting-trial prisoners in the gaol. The distinction
thus drawn was not warranted by the regulations, nor required by the necessities of
gaol discipline or administration; and the exceptional rigour which it involved
amounted in effect to a substantial punishment. Now, neither the Common Law (see
Voet, 48, 3, 3) nor the Statute then in force (see Ord. No. 6, 1908, sec. 22) . allowed
the official in charge of a gaol to punish the inmates save for breaches of regulations,
or to place them under special restraint, save under distinctly defined circumstances,
which were not present in this case. That this differential treatment was illegal was the
ground upon which MASON, J., on the 26th June, directed its discontinuance; and the
same view was taken by the Provincial Division when it dismissed the appeal from his
order. Indeed, I find it impossible to reconcile the judgments given in that appeal with
the reasons of the trial Court upon this part of the case. But if the general order given
by the Director was wrong, the way in which it was at first carried out was specially
illegal. All the available cells in the awaiting-trial section of the gaol happened at the
time to be undergoing a "spring cleaning," and under these circumstances, the
Governor placed the plaintiffs in two punishment cells, situated in a portion of the
building set apart for convicted prisoners. Before doing so, he communicated his
intention to the head office at Pretoria by telephone, and was authorised to carry it
out. This message was not sent by the Director, and he states that he knew nothing
about it. But the action thus taken was clearly illegal. The Ordinance (sec. 26)
directed that punishment cells should be used exclusively for confining convicts and
prisoners sentenced for gaol offences; no other prisoner therefore could legally

1912 AD at Page 122

be forced to occupy them. And the reason is obvious. Of the narrowest proportions
(nine feet by four), dark and gloomy, and under constant observation, incarceration in
them would constitute a punishment in itself. And, therefore, the Legislature specially
provided that none but offenders against the discipline of the gaol should be there
confined. Yet it was in these cells that the plaintiffs were housed for nearly a
fortnight: from the 18th to the 30th May. And, although they enjoyed certain of the
privileges of awaiting-trial prisoners in regard to food and clothing, they were
subjected to disabilities and discomfort not imposed upon others of their class. They
were prohibited from smoking, their exercise was taken under the most restricted
conditions, they were deprived of their boots while in the cells, and they were
handcuffed when conducted from one part of the gaol to another. This treatment was
due to the fact that they were occupants of punishment cells. The trial Court found
that their confinement in these cells was illegal; and there cannot be the slightest
doubt that it was. But, in my view, for reasons already given, their further isolation, in
the case of Morant, till the 8th June, and in the case of Whittaker till the 26th June,
was also illegal. For this illegality the law prescribes a remedy. I agree with
WESSELS, J., in holding that the illegal treatment to which the plaintiffs were
subjected amounted to a delict on the part of those responsible for it. And I think the
delict was of the class dependent upon intent (dolus); in other words, that it
constituted an injuria. The action of the Governor was a wrongful and intentional
interference with those absolute natural rights relating to personality, to which every
man is entitled. True, the plaintiffs' freedom had been greatly impaired by the legal
process of imprisonment; but they were entitled to demand respect for what remained.
The fact that their liberty had been legally curtailed could afford no excuse for a
further illegal encroachment upon it. Mr. Esselen contended that the plaintiffs, once in
prison, could claim only such rights as the Ordinance and the regulations conferred.
But the directly opposite view is surely the correct one. They were entitled to all their

1912 AD at Page 123

personal rights and personal dignity not temporarily taken away by law, or necessarily
inconsistent with the circumstances in which they had been placed. They could claim
immunity from punishment in the shape of illegal treatment, or in the guise of
infringement of their liberty not warranted by the regulations or necessitated for
purposes of gaol discipline and administration. Any such punishment would amount
to an injuria. From which it follows that their claim for damages would not be
restricted to actual pecuniary loss; for in respect of injuria compensation may be
given for the insult, indignity and suffering caused by the wrongful act. It often
happens that actual pecuniary loss is caused by an injuria; and under such
circumstances the modern and convenient practice is not to bring two separate
actions, but to claim damage under both heads. In the present case I entertain no doubt
that the element of injuria is present, and that being so, the plaintiffs' claim cannot be
restricted to mere patrimonial loss.
I come now to deal with the position of the defendant Roos. The trial Court held that
be was not liable for the treatment which the plaintiffs received up to the 30th May,
because he did not authorise their confinement in a punishment cell; and that he was
not liable in respect of their isolation thereafter, because his general order for their
segregation was not illegal. For reasons already given I feel compelled to differ on the
latter point; and as to the former I would remark that the Director of Prisons never
repudiated liability on the ground that the Governor had exceeded his authority in
making use of punishment cells for purposes of segregation. On the contrary, he
throughout assumed responsibility for the manner in which his subordinate officer had
carried out his general instructions. His own evidence was to the effect that having
issued the segregation order he gave no direction as to details, but left the Governor to
carry it out subject to regulations. He knew that punishment cells had been used on
other occasions for isolation purposes, but explained that it was impossible to observe
the terms of the statute on that point owing to lack of accommodation; the only thing
in such cases was to make the

1912 AD at Page 124

best provision possible in the gaol. The fact that the telephone message specially
sanctioning the use of the cells in question was despatched without Mr. Roos'
knowledge or authority was only elicited from the defendant Bateman in cross-
examination, and seems to have been relied upon as a defence at the suggestion of the
Court. Under these circumstances I think the true view is that the Director, when he
gave the order to segregate, intended that it should be carried out in the manner the
Governor found most advisable under the circumstances, even if its execution
involved the use of punishment cells. He intended that officer to exercise his
discretion in the matter, and is liable for the way in which he did so. But if the extent
of the original authority given by Roos to Bateman was not as wide as it appears to
me to have been, I agree with the Chief Justice in thinking that there was a complete
ratification by the former of the action of the latter in making use of the punishment
cells. The terms of his letter of the 30th May, and the contents of his plea are ample
evidence of such ratification. It is true that an amendment (the details of which do not
appear upon the record) was allowed at a late stage to the 11th paragraph of the plea;
but the second paragraph stands unaltered, and so does the latter portion of paragraph
13 (e); and they clearly show that the Director intended to adopt and ratify what the
Governor had done. Now, when an injury is inflicted by one man acting for that
purpose under the authority of another, the law holds principal and agent both
answerable. So that here Roos would be liable because he authorised this treatment of
the plaintiffs, and Bateman because he carried it out. Nor is the illegal order of the
superior any defence to the subordinate who acted under it. I have already pointed out
that the infringement of the rights of these persons amounted to an injuria; a
necessary feature of which is the existence of dolus, or intent. But when an unlawful
aggression of this nature has been proved, the law presumes that the aggressor had in
view the necessary consequence of his conduct; that is, that he had the intention to
injure, the animus injuriandi (De Villiers, Injuries, p. 145). That does not mean that he
was actuated by malice or ill-will,

1912 AD at Page 125

but that he deliberately intended that the operation of this unlawful act should have
effect upon the plaintiff. In the case of a real injury like the present, as distinguished
from a verbal or literal one, the possibility of rebutting this presumption is narrow
indeed. And it has certainly not been rebutted by the respondents. The terms of the
special plea were supported by very slender evidence, and the vague suspicions which
the police entertained as to the power for mischief of the two accused did not justify
their illegal treatment by the gaol authorities. The idea of these authorities was to
subject the two men in their charge to the disabilities complained of. They had the
intent to injure them, therefore, though their motive was a desire to assist the police.
But where intention to injure a person is present, the motive which actuated the
wrongdoer is immaterial save as an element in the assessment of compensation.

In my opinion, therefore, the plaintiffs must succeed against both defendants; and the
only point remaining is the amount to be awarded. This is not a case where it is
necessary to make an accurate computation of patrimonial damage. The Court is at
liberty to assess an amount of compensation which under the circumstances it
considers fair and adequate.

A deliberate aggression upon personal dignity and personal liberty is not a trivial
matter; and awaiting trial prisoners, as being in a position of peculiar difficulty and
helplessness are entitled to the special protection of the Court. The interference with
the plaintiffs' rights in the present instance was productive of much hardship and
indignity; and the cumulative effect of the experience which they were wrongly
compelled to undergo must have been keenly felt. The trial Court considered that the
case was not one for heavy damages because on their own showing the plaintiffs
sympathised with dynamitards. Upon that I would remark that however reprehensible
a man's views may be he is entitled to have his personal liberty adequately protected.
Moreover, according to the evidence of the plaintiffs, their sympathy was not with the
dynamitards but with the strikers. And they are both entitled

1912 AD at Page 126

to be regarded as innocent men. The evidence against Morant did not warrant his
prosecution; and Whittaker was acquitted by a jury who refused to accept the very
remarkable and contradictory evidence given by the informer Sherman, the chief
witness for the Crown. On the other hand, neither defendant bore any ill-will towards
the plaintiffs, and they were both actuated by a genuine and laudable desire to assist
the police, a desire which led them, however, to overlook the fundamental rights of
the accused. Mr. Roos was simply carrying out a practice which he found in existence
when he took office, that of segregating awaiting trial prisoners at the request of the
police. As the law stood at the time when these events took place, the police had no
right to interfere in the internal matters of gaol administration. And in my judgment it
is not advisable that they should have that power. Their sphere of o^erations should be
entirely separate from that of the officials entrusted with the custody of criminals or
suspected criminals. The eagerness for conviction, the desire to strengthen the case for
the prosecution and to break down the case for the defence, which may be natural in
the officials of a detective department, are inconsistent with the strict justice and
impartiality required from those in charge of unconvicted prisoners. And it seems to
me that assistance in the detection of crime is dearly bought if it is obtained at the
expense of an unnecessary interference with the liberty of men who are only in the
power of the authorities because they cannot afford to supply the bail which the law
requires. I am aware that these views are in conflict with some of the provisions of a
statute which had been enacted when the events in question took place, but which did
not become law until several months later. Section 25 (3) of Act No. 13, 1911,
empowers a superintendent or gaoler to isolate and if necessary to subject to
mechanical restraint any awaiting trial prisoner if the isolation or restraint is requested
by the police authorities in the interests of justice, for a period not longer than is
necessary for the purpose required. And by section 24 such prisoner may be placed in
an " isolation " or punishment cell if no ordinary single cell is available for the
purpose.

1912 AD at Page 127

The action of the gaoler is subject to the approval of the magistrate, and if the period
of isolation is longer than one month, to that of the Director. But the present case
shows that a desire to fall in with the views of the police may sometimes prevail over
a due regard for the rights of the accused. And I doubt whether it was realised that by
the provisions I have quoted the Legislature was sanctioning the solitary confinement
for considerable periods, in gloomy cells nine feet by four, of men who might be
entirely innocent, but whose misfortune it was to be too poor to procure adequate bail.
I have drawn attention to the terms of the statute because of their far-reaching effect,
and in the hope that the policy sanctioned in so important a matter may on a suitable
occasion be reconsidered by the Legislature.

It is manifest that the damages awarded to Whittaker should be considerably more

than those given to Morant. Not only was he isolated for a longer period, but in his
case the defendants placed on record a plea to the effect that he was guilty of the
charge against him. This was done after his acquittal by a jury, and the defendants
having entirely failed to substantiate their accusation, the Court is bound to regard that
plea as an aggravation of their conduct towards Whittaker. I agree that judgment for
£100 in the one case and for £200 in the other, with costs in both Courts, will meet the
justice of the matter.

SOLOMON, J.: I agree that the appeal should be allowed and in view of the
importance of the case and the fact that we are reversing the decision of the Court
below, I propose to give my reasons as shortly as possible. And the first question to
which I shall direct my attention is this was the treatment of the plaintiffs after their
arrest and during their incarceration in the Johannesburg gaol as awaiting trial
prisoners an illegal infringement of their personal rights?

Now, the whole term of their detention may be conveniently divided into two periods,
the first extending from May 18, the day of their arrest, to May 30, and the second
from May 30 to June 8 in the case of Morant, and to June 26 in the case of Whittaker.
During the first

1912 AD at Page 128

period the plaintiffs were isolated in punishment cells, that is to say, in cells which,
under Ordinance 6 of 1906, and the regulations framed thereunder, are exclusively
appropriated for the confinement of convicts and prisoners sentenced for prison
offences or for the carrying out of sentences of solitary confinement issued by a
competent Court. Such detention, therefore, was contrary not only to the spirit but to
the very letter of the law. And the serious feature of this part of the case is that, as Mr.
Justice WESSELS puts it in his judgment, "when once, they got into the punishment
cells they were to all intents treated as convicts detained in that section," so that they
were subjected not only to imprisonment but to punishment of a severe nature. That in
such circumstances their treatment was grossly illegal can admit of no question. As
regards the second period of their imprisonment, it appears that on May 30, after a
complaint had been sent to the Minister of Justice by their attorney, they were moved
from the punishment cells into others in the awaiting trial section of the gaol. Here
they were again isolated, spending 23 hours out of the 24 in their cells, with one hour
only set apart for exercise. That such confinement differed materially from that
usually accorded to awaiting trial prisoners is clear, seeing that in the ordinary course
of prison management, though there are no express regulations on the subject, such
prisoners are allowed access to the yard in that section during the greater part of the
day, and are permitted to converse freely with one another. Now, in my opinion, any
differential treatment of an awaiting trial prisoner, under which he is subjected to
harsher or more severe treatment than the rest, savours of punishment, and is prima
facie illegal. Where such exceptional treatment is specially provided for by any gaol
regulation, or is required for the purpose of preserving good order and discipline in
the gaol, it is, of course, justifiable; but in the present case it is not suggested that it
can be explained on either of those grounds. Now, I am not prepared to lay down a
hard-and-fast rule that there are no other circumstances in which it may not be
permitted to isolate an awaiting trial prisoner. A perusal of the gaol regulations,
however,

1912 AD at Page 129

satisfies me that such isolation is contrary to the spirit of those regulations, and where
it is resorted to, the onus, in my opinion, lies upon the gaol authorities to justify their
action. In the present case, the main ground relied upon by the defendants for their
differential treatment of the plaintiffs is, as expressed in their plea, that the isolation of
the plaintiffs was ordered by them "at the request of the Commissioner of Police, in
the belief that it was in the interests of public safety, and with a view to preventing a
potentially impending destruction of human life and property, and that they acted
bona fide and in accordance with the general custom in force in the Transvaal and
other parts of the Union of South Africa from time immemorial." That the defendants
acted bona fide I do not for one moment doubt, but there is no evidence to satisfy me
that their action was in accordance with any general custom in force in South Africa.
As regards the statement that they acted at the request of the Commissioner of Police,
it is unnecessary to say that this is no excuse. The Commissioner has no authority
over the gaol officials, and I am afraid that the whole trouble in this case has arisen
from the fact that the Director of Prisons was unduly influenced by the pressure put
upon him by the Chief of the Detective Department. It is more important to consider
that part of the plea which alleges that they believed that it was in the interests of
public safety, and with a view to preventing destruction of life and property, that the
prisoners should be segregated. Mr. Justice WESSELS, in his judgment, remarks:
"We know now that these excessive precautions were unnecessary, but this is to be
wise after the event." Now the motive which actuated the defendants was no doubt a
laudable one, but that, in my opinion, does not justify their action. It would be a most
dangerous doctrine to lay down that the police authorities are entitled to infringe upon
the personal rights of liberty of any individual merely because in their opinion it is
desirable to do so in the interests of public safety. That object must be secured in
other ways, as by increased vigilance or stricter supervision, but to confer such power
upon the police would be grossly subversive of the liberty of the subject.

1912 AD at Page 130

In the present instance, had the plaintiffs been men of means or position, they would
have been released on bail, and so would have been free to move about and at liberty
to communicate with their friends and associates. It could never be suggested that in
such a case the police would have been entitled to restrict their liberty merely because
they might have thought that it was desirable to do so in the interests of public safety.
The plaintiffs in this action being poor men and unable to find bail, were committed to
prison pending their trial; but the same principle must be applied to their case. To a
certain extent their liberty was legally curtailed, but the whole object of the detention
of awaiting trial prisoners is to ensure their attendance at the trial, and that object is
properly borne in mind by the authorities in their general treatment of such prisoners
while in gaol. Any further encroachment upon their liberty than is necessary to secure
this object or is required by the prison rules for the discipline or management of the
gaol, is an infringement of their personal rights, and cannot be justified on the ground
that the authorities considered it desirable in the interests of public safety. If this is the
correct principle to be applied in this case, then there can be no question that the
treatment of the plaintiffs even after the 30th May was illegal. There was, in my
opinion, no justification for keeping them in solitary confinement, or for depriving
them of the rights secured to them by the gaol regulation that they should be allowed
reasonable opportunities of communicating with their friends or legal advisers. In
these respects their liberty was curtailed in a manner far more excessive than what is
usual in the case of awaiting trial prisoners, and however good the motive may have
been, the effect was to subject them to punishment, and not merely to detention
pending their trial. If then the treatment of the plaintiffs while in prison was illegal,
can there be any question that an action lies against those who subjected them to this
treatment? It seems to me that we have present here all the requisites which are
necessary to found an action of injuria. Those requisites are well laid down by De
Villiers in his work on the law of injuries as follows: First: "An intention on the part
of

1912 AD at Page 131

the offender to produce the effect of his act"; in other words, the animus injuriandi. It
is not necessary in order to find that there was an animus injuriandi to prove any ill-
will or spite on the part of the defendants towards the plaintiffs; and it is quite
immaterial what the motive was or that the object which the defendants had in view
was a laudable one. It is sufficient that the injuries suffered by the plaintiffs were
inflicted by the defendants, not accidentally or negligently, but with deliberate
intention. "The second requisite is an overt act which the person doing it is not legally
competent to do," and the third is "an aggression upon the right of another, by which
the other is aggrieved or which constitutes an impairment of the person, dignity or
reputation of another." I have already dealt fully with these two points and have
attempted to show that these requisites are also present in this case. That being so, the
next question that arises is whether an action lies against both of the defendants, or
only against the defendant Bateman, as was found by the Court below. As to
Bateman's liability there can be no question. It was by his orders that the plaintiffs
were placed in the punishment cells in the first instance, and the treatment to which
they were subjected while in those cells was the direct and immediate result of those
orders. And on this point I am unable to agree with the view taken by the Court below
that Bateman is not liable in respect of the handcuffing of the prisoners. Two reasons
are given for this conclusion: the one is that there is no proof that Bateman gave
special instructions to the warder on this point; and the other is thus expressed by Mr.
Justice WESSELS: "I am not prepared to say that the Court ought to interfere with the
discretion of a gaoler in placing or not placing handcuffs on a prisoner."

As regards the first reason, it is true that Bateman gave no special instructions on the
subject, but the handcuffing was the necessary and immediate result of placing them
in the punishment cells, and Bateman, therefore, is responsible in the absence of proof
of any order to the warder that they were not to be handcuffed. As regards the second
reason, it is sufficient to say that no discretion

1912 AD at Page 132

was exercised by the gaoler. Had he exercised his discretion, I have very little doubt
that he would have directed the warder not to handcuff the plaintiffs having given his
order to place the prisoners in the punishment cells he left the matter there, and the
handcuffing followed in due course upon that order in the ordinary routine of prison
management. Bateman, therefore, is responsible for the handcuffing, which was
clearly illegal in the circumstances.

Nor can I agree with the Court below in the view that Bateman is not responsible for
the fact that the plaintiff's legal adviser and friends were not permitted for three weeks
to see them. Here again Mr. Justice WESSELS says: "I can find no evidence that
Bateman refused McIntyre, that is the attorney, access to his clients"; and again, "We
have no proof that the requests of the visitors to see the plaintiffs ever came to the
ears of Mr. Bateman." But it is clear that the difficulties that McIntyre and the friends
of the plaintiffs found in obtaining access to them were the direct result of the order
given by Roos to Bateman that visitors applying to see the prisoners were to be
referred to the police. Bateman acted upon that order, and gave instructions to his
subordinates to see that it was carried out. The order itself was illegal and in
contravention of gaol regulation 642, and both Roos, who gave the order, and
Bateman, who enforced it, are responsible to the plaintiffs.

But where I mainly differ from the Court below is in holding that Roos is not liable in
this action. Mr. Justice WESSELS says: "In this case there is no proof that Mr. Roos
gave instructions to put the plaintiffs in the punishment cells, or that he did more than
to order them to be segregated. As, according to my view, the mere segregation is not
in itself an illegal act, it seems that no action can be maintained against Roos." Now,
the order given by Roos to Bateman is thus recorded in the journal of the governor of
the gaol: "Received instructions to strictly isolate and prevent communication by
awaiting trial prisoners Whittaker and Morant, dynamiters." It is clear from the
evidence of Roos himself that punishment cells are sometimes used for the isolation
1912 AD at Page 133

of awaiting-trial prisoners. Further, Roos says, in his evidence: "The carrying out of
an order to segregate is left entirely to the governor of the gaol subject to regulations."
To the same effect is Bateman's evidence; thus he says: "Punishment cells are used
primarily for punishment, but also for overflow in any section." Again; "On account
of limited accommodation, we have often had to use these cells for purposes other
than punishment."

When, therefore, the order strictly to isolate the prisoners was given by Roos to
Bateman, it was left to the discretion of the latter to arrange how the order was to be
carried into effect, and Roos knew quite well that in the exercise of such discretion
Bateman might place them in the punishment cells. In these circumstances I am of
opinion that he is just as liable in law for their being placed there as if he had given a
direct order to that effect. In my opinion, therefore, it is impossible to draw any
distinction as regards their liability between the two defendants. And in justice to the
defendant Roos, I should point on that throughout the whole of the conduct of the case
he never attempted to repudiate his responsibility for what had been done, or to set up
a defence different from that relied upon by Bateman. The plea is a joint one, and on
the face of it contains a tacit, though clear, admission that the isolation of the
plaintiffs in gaol was at the instance and command of both defendants. It was not until
the conclusion of the evidence in the case that, on a suggestion from the Court, the
defendants' Counsel applied for an amendment of the plea, so as to enable him to set
up the defence on behalf of Roos that he himself was not personally responsible for
the isolation of the plaintiffs in the punishment cells. In my view of the case, however,
notwithstanding the amendment of the plea, there is ample evidence to justify us in
holding that both the defendants are equally responsible, and that each of them is
liable to the plaintiffs in damages.

That brings me to the lost, and not the least important, part of the case, namely, what
damages should have been given for the illegal treatment to which the plaintiffs were
subjected? The Court below held that £20 was a

1912 AD at Page 134

sufficient sum to award each of the plaintiffs, but I am unable to concur in that view.
The plaintiffs during their confinement in gaol were subjected not only to great
discomfort of body, but also to considerable humiliation and pain of mind, and they
are entitled to claim substantial reparation in respect of their sufferings. For twelve
days they were confined in cells specially marked and set apart for purposes of
punishment. They were kept in solitary confinement in these cells for 22 hours out of
the 24, the other two hours being set apart for solitary exercise in a narrow passage.
The cells themselves are only 9 feet by 4 in size, with no window, and with so little
light that Mr. Bateman himself says that " the light during day is dim, and that, though
it was possible to read in them, it was not comfortable." To be kept in solitary
confinement in such cells for twelve days, and for 22 hours out of the 24 in each day,
is, to my mind, a very severe punishment. During that time they were subjected to the
humiliation on three occasions of being handcuffed and marched from one part of the
gaol to another; they were deprived of the privilege which is accorded to awaiting trial
prisoners of smoking; they were prevented from wearing boots in the cells; and they
were tormented by the sound of lashes inflicted upon prisoners in the immediate
neighbourhood of their cells. After the 30th May they were, it is true, removed to
larger cells in the awaiting trial section, but the rigour of the solitary confinement
continued. The discomfort of body and pain of mind which they endured must have
been considerable. In the case of Whittaker, be clearly is entitled to higher damages
than Morant, for three reasons. In the first place, in spite of the fact that be had been
acquitted on trial before a jury of the offence on which he was arrested, the
defendants, in their plea, deliberately repeat the charge upon which be was tried and
acquitted, and have failed to substantiate this charge. In the second place, he was
isolated for eighteen days longer than the plaintiff Morant. And, in the third place, he
was put to considerable expense in vindicating his rights by application to the Court.
Mr. Justice WESSELS in his judgment states that men of the character of the
plaintiffs, men who, he finds, if not themselves dynamitards,

1912 AD at Page 135

certainly showed sympathy with those who used dynamite, are not entitled to
exemplary damages. Now, even if we accept this view of the character of the
plaintiffs, I do not think it would justify us in refusing to give substantial damages.
This is an action in part only for injury done to the reputation; it is in the main an
action for injury done to a man's personal rights, for an infringement of his liberty, for
bodily discomfort and pain of mind. It is difficult to injure the reputation of one who
has no reputation to sustain; but a man of bad character may suffer pain of body or
mind as much as a man of good character, and it is difficult to see why he should not
be compensated in proportion to the injury which he has suffered. Without saying,
therefore, that character should be entirely disregarded in assessing damages in an
action of this nature, I do not think that we are entitled to attach too much importance
to that fact.

In my opinion the damages awarded in the Court below are wholly inadequate, and I
agree that judgment should be given against both the defendants for the plaintiff
Morant for one hundred pounds with costs, and for the plaintiff Whittaker for two
hundred pounds with costs.

MAASDORP, J.P., and DE VILLIERS, J.P., concurred.

Appeals accordingly allowed with costs, and judgment entered for the plaintiff
Whittaker against both defendants, the one paying the other to be absolved, for £200
(less £20 already paid), with costs in the Court below, and judgment entered for the
plaintiff Morant against both defendants, the one paying the other to be absolved, for
£100 (less £20 already paid), with costs in the Court below.

[Appellants' Attorneys, H. W. ADAMS, Pretoria. MCINTYRE & MOTRAM,

Johannesburg. Respondents' Attorneys, LUNNON & NIXON, Pretoria. BELL &
NIXON, Johannesburg.]