The Department of Correctional Services filed an affidavit in the Durban High Court on Friday, detailing how it plans to speed up providing anti-retroviral (ARV) treatment at Durban’s Westville prison.
The department was criticised on August 31 by Judge Chris Nicholson, who said the government’s failure to abide by court orders posed a ”grave constitutional crisis” for the country.
In a statement released on Friday, the department said its legal team had filed an affidavit on its ”interim intervention plan to deal with the HIV and Aids pandemic and a report on progress made in the implementation of comprehensive HIV and Aids programmes and services in Durban Westville correctional centre, in compliance with a court order”.
The government was ordered by Judge Thumba Pillay to comply with the interim execution order pending an appeal against his ruling on the provision of ARVs to offenders at Durban Westville correctional centre.
Nicholson set the new compliance date of September 8 when he upheld Pillay’s interim execution order on appeal.
The Treatment Action Campaign (TAC) called the submission of the affidavit ”real progress”, but said there are ”shortcomings” in the plan detailed in the affidavit.
The TAC’s KwaZulu-Natal organiser, Mihle Dlamini, said: ”There is no mention of nutrition and there is no mention of how they will monitor side effects.”
Jonathan Berger, a lawyer for the Aids Law Project, which brought the initial court application, said: ”We’re not satisfied. There is progress but there are real gaps. It doesn’t go far enough.”
He said the affidavit is being studied and a full response will be included in an affidavit to be submitted to the Durban High Court next Friday in compliance with Pillay’s order.
‘Grave crisis’
When Nicholson gave his judgement, he 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.”
The government in turn said there was no constitutional crisis, but that its appeal against Pillay’s execution order had been ”an attempt to alert the court to the administrative burden that would arise as a result of the decision of the court”.
In May, 15 inmates of Westville prison and the TAC made an urgent application to compel the department to speed up ARV treatment.
On June 22, Pillay ordered the department to speed up ARV treatment to the 15, and to all inmates at the prison needing the treatment.
On July 25, the department was granted leave to appeal against the order, but Pillay made an execution order compelling to carry out his order pending the outcome of the appeal.
In its statement on Friday, the department said that its plan includes increasing the number of accredited public health ARV sites to which inmates will have access.
HIV-positive inmates who do not have identity documents cannot receive ARV treatment. The department said that it is implementing a ”waiver of the ID requirement for accessing treatment from health facilities, [and] provisional free processing of ID applications for offenders who qualify to commence with the ARV treatment programme”.
The TAC was not immediately available for comment.
The respondents in the case are the government, the head of Westville correctional centre, the minister and area commissioner of correctional services, and the minister and KwaZulu-Natal minister of health. — Sapa