An appeal against a Durban High Court order to expedite antiretroviral (ARV) treatment at Westville prison does not amount to a ”constitutional crisis” but is an attempt to alert the court to an ”administrative burden”, the government said on Thursday.
A statement from the Government Communications and Information Service (GCIS) read: ”There is no constitutional crisis in this country as the executive will never give such an order [to disobey a court ruling] and will ensure that all state institutions abide by the spirit and the letter of the Constitution.
”The appeal was done in good faith and it was an attempt to alert the court to the administrative burden that would arise as a result of the decision of the court.”
The statement follows a judgement by Judge Chris Nicholson on Monday in which he said: ”If the government of the Republic of South Africa has given such an instruction [not to comply with the 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.”
Nicholson was dismissing an appeal by the Department of Correctional Services against an order to immediately provide ARV treatment at the prison.
Nicholson said the respondents — who include the government as a whole — were in contempt of a June 22 court ruling, which obliged them to file an affidavit explaining how they were going to implement the ARV treatment programme.
In May, the 15 inmates and Treatment Action Campaign, represented by the Aids Law Project, made an urgent application to compel the department to speed up ARV treatment in the prison.
On June 22 Judge Thumba Pillay granted the order, saying it applied not only to the 15 but to all inmates at the prison who required the treatment.
On July 25 Pillay granted the department leave to appeal, but ruled that it had to provide ARVs ”with immediate effect” to all needy prisoners at Westville pending the outcome of the appeal.
The GCIS said the government wants to assure South Africans that it feels bound by decisions of the courts and that it ”regrets that the department concerned had not met Judge Pillay’s order to submit an affidavit”.
It pointed out that since the department had lodged its appeal against Pillay’s first judgment, the department had expanded ARV treatment to 116 inmates, appointed two full-time counsellors, appointed three doctors to visit the prison and lodged an application for the prison to become an accredited ARV treatment site.
”These actions demonstrate that there was never an intention to undermine the Pillay judgment,” the statement read.
Appeals against court decisions by the department will ”not be used as stumbling blocks” to prevent inmates from receiving ARV treatment.
On Wednesday the department said: ”The department does not agree that the decision to appeal against the orders of the Durban High Court was intended to create a constitutional crisis.”
However, on Monday, after the judgement was handed down, Mark Heywood, spokesperson for the Aids Law Project, said: ”This judgement has to be one of the most damning judgements of government conduct since the advent of our new constitutional order in 1994.” — Sapa