The courts have found that the state is responsible for the spread of tuberculosis in its prisons, but has carved out no room to compensate those infected there. This week the Constitutional Court will have a chance to remedy that situation.
On 28 August, the Constitutional Court will hear a case that touches the depth of what it means to be human and humane in the throes of a tuberculosis pandemic that is taking more South African lives than any other cause.
Just outside Cape Town is Pollsmoor prison, one of South Africa’s largest correctional facilities. Dudley Lee entered Pollsmoor in November 1999, charged with, among other things, fraud, counterfeiting and money laundering. The prison was at more than 200% occupancy, with 40 to 60 men crammed into communal cells for 23 hours a day. Lee’s cell was so filthy that he sat on his clothes throughout the night to avoid touching the surfaces. Ventilation and sunlight were scarce. Smoke streamed from the hondjies, which lit the cigarettes from which still more smoke poured. A man coughed. Another sneezed. A third spat on the ground. The men breathed then re-breathed the air and awaited their trials.
Dudley Lee was healthy when he went into Pollsmoor. Less than four years later, in June 2003, he was diagnosed with TB. In September 2004 he was acquitted of the charges against him and released. He then sued the Minister of Correctional Services in the Western Cape High Court in Cape Town for negligently causing him to become infected with TB.
Professor Robin Wood is one of the world’s leading experts on TB. After hearing about Lee’s case, he conducted a study of the conditions of detention at Pollsmoor. The findings were shocking. The Pollsmoor study revealed that conditions in the prison are ideal for the spread of TB and result in TB transmission risks of 90% per year.
South Africa has one of the highest incidence rates of TB in the world. It is the Number One cause of death of South Africans—by a long shot—and has been for many years. HIV co-infection and the increasing prevalence of drug-resistant TB compound the problem.
What’s more, TB is an airborne communicable disease. The TB that spreads in prison does not stay in prison. Guards, visitors and released detainees carry the bacteria back to their communities and families. And so it is not possible to address TB in the general population without addressing it in the incarcerated population.
Tackling the TB crisis in prisons should be one of the state’s top priorities. On paper, it seems as if some steps are being taken. But in reality, very little is being done. In fact, the Department of Correctional Services combines all the necessary ingredients to fuel the fire.
Prisoners and detainees awaiting trial are endowed with the rights enshrined in South Africa’s Constitution. These rights include the right to health, the right to be detained in conditions consistent with dignity and the right to a day in court. In a nation in which many of the greatest visionaries, artists and leaders were incarcerated for their beliefs not long ago, these rights hold special significance.
Moreover, it bears pointing out that the people at highest risk of TB infection are the detainees awaiting trial, people who have not yet had their day in court. The law has a status in which it places them: “innocent”. This, then, is the question we must ask: what standard of care do we owe to people when we take their freedom but have not yet determined their guilt?
Dudley Lee won his case in the High Court, which was plain in its condemnation of the Department of Correctional Services. It wrote that the Minister provided no evidence that he took “any steps whatsoever to guard against the spread of TB”. The Minister then appealed to the Supreme Court of Appeal (SCA).
The SCA, too, agreed the Minister failed in his duties. The SCA even reproached the state for litigating the way it had, saying it contested “the allegations of an inadequate health-care regime when it must have known that it was defending the indefensible”.
Still, the SCA found against Dudley Lee. It ruled he could not prove the Minister’s negligence caused his TB because he could not identify the “source” of his infection or show that there would have been no risk of becoming infected if the prison authorities had not been negligent.
The problem with this holding is that it asked the impossible. It is not scientifically possible to prove the “source” of a TB infection in the way the SCA required. Moreover, the SCA itself found that “ … whatever management strategies might be put into place, there will always be a risk of contagion”.
Thus, the SCA effectively negated the possibility of a remedy for Lee and others like him, despite the violation of their rights. The judgment also means the Minister is permitted to violate these rights and disregard his obligations with impunity. Moreover, the absence of an incentive to tackle TB in prisons will also have consequences for public health. The old question is: what is a right without a remedy?
Dudley Lee has now appealed to the Constitutional Court. The Constitution requires that the common law be developed in order to “promote the spirit, purport and objects of the Bill of Rights”. The Treatment Action Campaign, Centre for Applied Legal Studies, and Wits Justice Project, represented by Section27, were admitted as amici curiae (friends of the court) to make the argument that justice requires the law to be developed in this case. Otherwise, they argued, the rights in the Constitution are negated.
In arguing this point to the Court, these organisations are also asking a question of South Africa more broadly. As the birthplace of one of humankind’s greatest accomplishments, the South African Constitution, what kind of country and culture should South Africa’s prisons reflect? What does it mean that this country was born of struggle and enriched by a long legacy of resistance in terms of how it should treat those whom it deems fit to deny their liberty?
Nelson Mandela was detained in Pollsmoor for more than six years and suffered from TB while there. “(N)o one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones,” he has said.
Dudley Lee now lives on the bread line in an institute for the elderly in Cape Town. He has not received any compensation from the state. Pollsmoor remains much the same as it was when Nelson Mandela walked out in 1988 and as it was when Dudley Lee walked out in 2004. On 28 August, the Constitutional Court will hear argument on an issue that will have serious consequences for Lee, human rights, public health and prisoners across the country. The question we should be asking is this: what do we want the judgment to say about South Africa? DM
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