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TB ruling furthers prisoners' rights

Niren Tolsi

But overcrowded prisons such as Pollsmoor may not be able to address their healthcare deficits. Niren Tolsi reports.

The Constitutional Court found that state negligence led to Dudley Lee getting ill.  (Sydelle Willow Smith)

The Constitutional Court this week handed down a judgment hailed by the Treatment Action ­Campaign as "a major step forward" for the protection of prisoners' rights of access to healthcare and dignity.

In the matter of Dudley Lee vs the Minister of Correctional Services, the Constitutional Court found that negligence on the part of the department of correctional services at Pollsmoor Prison in Cape Town had led to Lee contracting tuberculosis (TB).

The judgment highlighted that the state's "legal duty … to protect Lee and others similarly placed will fail to give effect to their rights to human dignity, bodily integrity and the right to be detained in conditions that are consistent with human dignity under the Constitution, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition and medical treatment".

It also set the bar for a more flexible definition of "causation" – something it felt the Supreme Court of Appeal had too rigidly applied in an earlier finding against Lee – when determining matters of this nature. The case was remitted to the Western Cape High Court, where Lee's application was originally lodged, to decide the damages payable.

Lee was originally detained in Pollsmoor on charges, including fraud, from 1999 to 2004 before being acquitted and released.

Yet it appears the overburdened prison system is ill equipped – and the department of correctional services potentially subject to further litigation – to address the shortfalls in its healthcare system. This applies in particular to the pervasive HIV/Aids infection rate in prisons and attendant diseases such as TB.

Unknown causes
According to the Judicial Inspectorate of Correctional Services, 78 inmates died from TB last year. The inspectorate's report for the first quarter of this year found that, of 173 "natural deaths" in South Africa's prisons, 15 were attributed to TB, 13 to respiratory problems and 95 to "unknown causes".

According to Professor Robin Wood, director of the Desmond Tutu HIV Centre at the University of Cape Town's Institute of Infectious Disease and Molecular Medicine, overcrowding in South African prisons makes them a hotbed for the transmission of disease, especially airborne ones like TB.

The inspectorate's 2010-2011 report found that, by March last year, 18 of the country's prisons were "critically overcrowded by 200% or more". Pollsmoor, according to papers filed in the Constitutional Court, has overcrowding of 230%.

According to Wood, whose research at Pollsmoor is titled Tuberculosis in a South African Prison: A Transmission Modelling Analysis, conditions in prisons make them "extremely conducive to the ongoing transmission" of the disease. Wood found that this led to "exceptionally high annual tuberculosis transmission risks of 90% per annum".

Wood found that in addition to overcrowding, "long lock-up times [up to 23 hours a day] and inadequate ventilation results in prisoners rebreathing contaminated air for prolonged periods of time" and that three- to four-month delays in accessing medical care also exacerbated the spread of the disease.

According to his report, if the correctional services department was to implement "national cell occupancy recommendations alone", transmission would be reduced 30%. He further found that if they were combined with the "implementation of active case finding", transmission would be reduced by 50% and the "implementation of active case ­finding, along with international ­recommendations, would reduce transmission by 94%".

Correctional services spokesperson Logan Maistry said the ­judgment "highlighted the issue of overcrowding and remand detainees in our prison. This is a priority for the department."

At the time of going to press, the Mail & Guardian was unable to ­contact James Smallberger, the department's chief commissioner for incarceration and corrections, who is in charge of its turnaround strategy in this regard.


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