The government has moved to limit the fallout from a warning by Kwazulu-Natal Judge Chris Nicholson that a ”grave constitutional crisis” could occur if it defied court orders.
”Government wishes to reassure all South Africans in general, and the judiciary in particular, that court judgements are binding on the state and that all state institutions will abide by court decisions. This position will not change under any circumstances,” chief government spokesperson Themba Maseko said in a statement on Thursday.
Nicholson delivered the warning in the course of dismissing an appeal from the Department of Correctional Services against a decision by Judge Thumba Pillay compelling it to provide anti-retroviral (ARV) treatment to inmates at Durban Westville prison, and to file an affidavit giving details of how it was doing so. Nicholson said failure by the government to comply with a court order threatened the separation of powers, and might lead judges to question whether they should remain on the bench.
In the statement, the government goes out of its way to reiterate its commitment to the separation of powers, without admitting to any dereliction of its duty to comply with the Pillay judgement.
Meanwhile, lawyers acting on behalf of the Treatment Action Campaign (TAC) and the 15 original HIV-positive prisoners who took the Westville correctional facility and government to court in an attempt to receive ARVs have, this week, complained about their lack of access to the prisoners.
”We are still battling to get access to our clients,” said Aids Law Project (ALP) lawyer Jonathan Berger, who accused authorities of ”changing the rules as they go along” in terms of the application procedures for medical and legal consultations.
Berger said the procedure usually followed was for a written application to be simultaneously sent to the prison’s area commissioner, the head of Westville Prison and the provincial minister for health, Neliswa Nkonyeni.
In reply to an application for last week’s aborted attempt by TAC doctors to examine prisoners — which saw TAC activists and doctors threatened by prison warders outside the gates — the prison’s area commissioner requested that the ALP and TAC send all requests to the state attorney’s office. Berger said the state attorney’s office said it would be ”unethical” for them to process these sorts of requests.
The department said this week that 116 offenders at Westville Prison were on a full treatment programme — 71 of them were on ARVs.