South Africa could face ”a grave constitutional crisis” that could leave judges considering whether they should ”continue on the bench”, the Durban High Court said on Monday.
Dismissing an appeal by the Department of Correctional Services against an execution order expediting anti-retroviral (ARV) treatment at Durban’s Westville prison, Judge Chris Nicholson said: ”If the government of the Republic of South Africa has given such an instruction [not to comply with the execution order] then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers.
”Should that continue the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench.”
In May, 15 inmates of Westville Prison and the Treatment Action Campaign (TAC) represented by the Aids Law Project made an urgent application to compel the department to speed up ARV treatment.
On June 22 judge Thumba Pillay ordered the department to speed up ARV treatment to 15 inmates as well as all inmates at the prison who required the treatment.
On July 25 the department was granted leave to appeal against the order, but Pillay ordered that his original order to speed up the provision of ARVs to all needy prisoners at Westville be implemented pending the outcome of the appeal.
Nicholson said: ”If the refusal to comply [with the execution order] does not result from instructions from the first respondent, the government of the republic of South Africa, then the remaining respondents must be disciplined, either administratively or in an employment context, for their delinquency.”
The respondents are the government, the head of Westville correctional centre, the minister and area commissioner of correctional services, and the minister and KwaZulu-Natal MEC for health.
Nicholson gave the department until September 8 to show that it was complying with the execution order.
Meanwhile, the health department said on Friday that the appeal was a ”matter of principle”.
”It is not about [government] refusing to give people treatment,” said director-general of the health department Thamsanqa Mseleku.
He said the issue was whether a court should be able to determine an aspect of government policy.
”Then what is the point of policy? If we find a facility does not meet the criteria for implementation [of an ARV treatment site] should we implement simply because a court says so?”
Mseleku said Westville prisoners had access to treatment at sites such as King Edward Hospital. Addressing reporters, Mseleku explained aspects of the government’s response to HIV/Aids, denying claims that South Africa did not have a plan.
He said the comprehensive plan aimed to provide for care, treatment and prevention of HIV/Aids, while strengthening the national health system. – Sapa