The Constitutional Court reserved judgment this week in a case that brings into question the Department of Correctional Services' ability to prevent and manage the spread of Tuberculosis in the country's prison facilities.
In 2004 a former Pollsmoor Prison awaiting-trial inmate, Dudley Lee, who was subsequently acquitted of his alleged crimes, successfully litigated against the Department of Correctional Services in the Western Cape High Court after contracting tuberculosis during his four year detention. The court found that prison authorities were unable to guard against the spread of TB at Pollsmoor. It also decided that Lee was entitled to a damages claim against Correctional Services. But the department appealed the decision. Subsequently, the Supreme Court of Appeal in Bloemfontein strangely found that the Correctional Services Department was negligent in its TB prevention programme, but also ruled that there was no conclusive evidence to say that Lee contracted tuberculosis from someone within the prison system. That is a technical legal issue that Lee appealed to the Constitutional Court, in Johannesburg, to decide on this week.
"On a narrow legal technical question of what's known as "causation" it said it couldn't be proved beyond doubt that Lee had got TB from somebody within prison. They couldn't say that it was you who gave him TB or it was me who gave him TB, and on that basis his claim fell apart. So, this was appealed to the Constitutional Court because it really seems unjust that you accept that a wrong has been done, you accept that there's been unlawfulness, but you don't give a person any sort of a remedy", explains Mark Heywood, head of Section 27, which represents Lee in the case.
Heywood further explains why he believes that the Supreme Court of Appeal erred in its decision: "The real problem with the SCA was, they said: 'OK, even if we accept that he got it in prison, can we say that if the Department of Correctional Services had a good TB prevention programme, he definitely would not have got it in prison'? And the answer to that is you can't say that the person would definitely not get TB. So, he might have been one of the small minority of people who slip through the net. And because of that net, if you like, they then said: 'Well, we can't hold the Department of Correctional Services liable and we can't hold them responsible for damages", he says.
A friend of the court in the matter, Wits University's Justice Project, put it that the Department of Correctional Services is defending its abuse of human rights in prisons.
"If we have 160 000 inmates in our country at the moment make sure that the conditions that they are living in are fair, right and in line with our Constitution. Thirty percent of the inmates in South Africa are actually awaiting trial. Dudley Lee was kept in remand for four years awaiting the end of his trial, at which time he was acquitted. So, an innocent man was behind bars for four years - and there are consequences for that.
And we need to start looking at our system of remand detention and making sure that we don't keep too many people for too long in inhumane conditions", says project co-ordinator, Nooshien Erfani.
Erfani said the manner in which prisoners are being held in the country's prisons are unlawful as they even disregard the Department of Correctional Services' own guidelines. For example, they stipulate the need for proper ventilation to prevent TB infection.
The Treatment Action Campaign says simple infection control measures like the provision of Isoniazid (INH) prophylaxis to prison inmates are not being followed. Portia Serote is the deputy chairperson of the Treatment Action Campaign in the Ekurhuleni district of Gauteng.
"There are INH guidelines that say 'vulnerable people like prisoners where there is over-crowding, where there is not enough infection control those people need to get INH'. But the question is: Are they getting it in order for them not to contract TB easily? That is not happening!", according to the TAC's deputy chairperson in the Ekurhuleni district of Gauteng.
The Constitutional Court has reserved judgement in the matter. But whatever it will decide will have a significant impact for justice for prisoners in general.
Section 27's Mark Heywood drew similarities between this case and how the Department of Correctional Services was forced to provide AIDS treatment to prison inmates through the courts.
"One similarity is that it took a court case to get the Department of Correctional Services to start treating prisoners with antiretrovirals. It's taken a court case to get the Department of Correctional Services to look at TB very seriously. There's a high risk of HIV in TB Through unprotected sex, there is a high risk of tuberculosis. And I think the other similarity is that, clearly, when you detain somebody, the State takes away their own power to look after their own health. And, so, the State has to take that responsibility upon its own shoulders to look after the health of the prisoner", Heywood said.