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ConCourt makes landmark TB ruling

In what is being hailed as a landmark ruling on the way prisoners are treated by the state, the court ordered the Minister of Correctional Services S'bu Ndebele to pay all Dudley Lee's legal costs on Tuesday. The case will now return to the Western Cape High Court which will decide what damages are due to Lee.

The minister has been granted leave to appeal but it is not clear whether he will do so.

For Lee and his attorney Jonathan Cohen, this is the end of a long road of legal tangles. "He [Lee] is pleased, we're all pleased," said Cohen. "It's been a seven-year battle and at long last this court has vindicated his rights."

Lee is a Cape Town-based businessman who spent four and a half years in Pollsmoor maximum prison awaiting trial from 1999 to 2004 on charges of fraud and money laundering.

While he was eventually acquitted, he contracted tuberculosis (TB) during his long stay in an overcrowded prison cell. Lee first brought his case before the Western Cape High Court.

The court upheld his application to sue the minister of correctional services on the basis that poor health management at the prison led to his contracting TB. But Lee's hopes were dashed when the Supreme Court of Appeal overturned the judgment in March 2012 because Lee had neither shown how and where exactly he contracted the disease nor proven that reasonable precautions taken by prison authorities may have prevented him being diseased. Since TB is an airborne disease, it was unclear how far its transmission could have been prevented.

But the Constitutional Court on Tuesday argued that the appeal court had asked too much when it ruled that Lee had to prove exactly how he contracted the disease for his case to succeed. It further argued that if that was the case, the likelihood of any aggrieved inmate similarly impaired having recourse to the courts was slim indeed.

For Cohen the ruling is significant because it recognised the faults of applying existing common law too rigidly and that a "commonsensical" approach was more appropriate.  

"By commonsense, I mean in terms of the rights enshrined in the Constitution, with dignity being one of them and adequate healthcare while in prison another," he said. "There were a myriad of rights that we showed before this court were violated and which the [appeal court] also accepted had been violated. However the [court's] approach was that of a more narrow interpretation of the laws of causation, which in our view weren't appropriately applied in this case. Had they [correctional services] honoured their obligations under the Constitution and according to the regulations promulgated under the Correctional Services Act, then the likelihood exists he would not have contracted TB."

A wide array of human rights NGO's submitted opinions as amici curiae, including Section 27, the Treatment Action Campaign, the Centre for Applied Legal Studies and the Wits Justice Project. The Constitutional Court judges deemed their input "most helpful" in their judgment.

Kathleen Hardy, attorney in the Rule of Law programme at the Centre of Applied Legal Studies at the University of the Witwatersrand, said the ruling signalled a shift in the way remand detainees (those in custody awaiting trial) need to be treated by the state.

"We are very happy with the judgment because it provides an individual like Dudley Lee with a remedy. On the basis of the [appeal court's] interpretation an individual would have no legal recourse. This has set a good precedent with the result that the state will now have to go back and urgently address the conditions under which remand detainees and convicted prisoners are being kept," she said.

Hardy said there were many who faced similar conditions to Lee but lacked the wherewithal to take legal action. "It is difficult for an individual, especially indigent individuals to access legal assistance while in detention," she said. "We are hopeful that the department of correctional services will seriously address these conditions in upholding individuals' rights to access to health care and dignity".

Ndebele said in a statement that the judgment highlighted the problem of overcrowding in South African prisons. "The World Prison Brief currently places South Africa in the top 10 in terms of our inmate population. South Africa has 51.8-million citizens, and our rate of imprisonment is the highest in Africa," said Ndebele.

In addition, South Africa has a high level of people in custody awaiting trial. "Of the approximately 150 000 inmates in South Africa, more than 44 000 (30%) are remand detainees. Some of these remand detainees have been held in custody for more than seven years," said Ndebele.

Ndebele said the department of correctional services was constantly working towards a greater emphasis on rehabilitation as opposed to an "archaic penal system".

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