THE BIG READ: The TB death penalty
The courts have found that the state is responsible for the spread of tuberculosis in prisons but created no room to compensate those infected.
This week the Constitutional Court will have a chance to remedy that situation.
Today the court will hear a case that cuts to the heart of the TB pandemic and the toll it is taking on the lives of prisoners.
Dudley Lee entered Pollsmoor prison, in Cape Town, in November 1999. He was charged with fraud, counterfeiting and money laundering. The prison was then at more than 200% occupancy, with 40 to 60 men crammed into communal cells for 23 hours a day.
Lee's cell was so filthy that he sat on his clothes throughout the night to avoid touching the surfaces. Ventilation and sunlight were scarce.
Smoke streamed from the "hondjies", which lit the cigarettes from which still more smoke poured. A man coughed. Another sneezed. A third spat on the ground. Men breathed then re-breathed the air and awaited their trials.
Lee was healthy when he went into Pollsmoor. Less than four years later, in June 2003, he was diagnosed with TB.
In September 2004, he was acquitted of the charges against him and released.
He then sued the minister of correctional services in the Cape Town High Court, saying that negligence on the part of the state led to him contracting tuberculosis.
Professor Robin Wood is one of the world's leading experts on tuberculosis. After hearing about Lee's case, he conducted a study of the conditions at Pollsmoor. He found that the prison provided the ideal conditions for the spread of the disease and that the risk of transmission in an awaiting-trial inmate who has spent a year at Pollsmoor is 90%.
South Africa has one of the highest incidences of tuberculosis in the world. It is the No1 cause of death of South Africans - by a long shot - and has been for many years.
HIV co-infection and the increasing prevalence of drug-resistant tuberculosis compound the problem.
What's more, tuberculosis is caused by an airborne bacterium. Prison bars do not contain it. Guards, visitors and released detainees carry the bacteria back to their communities and families. For this reason, it is impossible to deal with tuberculosis in the general population without dealing with it in the prison population.
It is an urgent problem requiring urgent intervention by the state. Tackling the TB crisis in prisons should be a top priority.
On paper, it seems as if some steps are being taken. But, in reality, very little is being done. In fact, the Department of Correctional Services combines all the necessary ingredients for fuelling the fire.
Moreover, it bears pointing out that the people at highest risk of tuberculosis infection are awaiting-trial detainees, people who have not yet had their day in court and are thus, legally, "innocent until proved guilty". What standard of care do we owe to people when we take away their freedom but have not yet determined their guilt?
Dudley Lee won his case in the high court, which was plain in its condemnation of the Department of Correctional Services. It wrote that the minister provided no evidence that he took "any steps whatsoever to guard against the spread of tuberculosis". The minister appealed.
The Supreme Court of Appeal agreed that the minister had failed in his duties. The court even reproached the state for litigating the way it had, saying it contested "the allegations of an inadequate health-care regime when it must have known that it was defending the indefensible".
Still, the appeal court found against Lee. It ruled that he could not prove that the minister's negligence caused his tuberculosis because he could not identify the "source" of his infection or show that there would have been no risk of becoming infected if the prison authorities had not been negligent.
The problem with this ruling is that it asked the impossible.
It is not scientifically possible to prove the "source" of a tuberculosis infection in the way the Supreme Court of Appeal required.
Moreover, the absence of an incentive to tackle tuberculosis in prisons will have consequences for public health. The old question is: What is a right without a remedy?
Lee has now appealed to the Constitutional Court. The constitution requires that the common law be developed in order to "promote the spirit, purport and objects of the Bill of Rights".
The Treatment Action Campaign, the Centre for Applied Legal Studies, and the Wits Justice Project, represented by Section27, were admitted as amici curiae (friends of the court) to make the argument that justice requires that the law be developed in this case.
Otherwise, they argued, the rights in the constitution would be negated. In arguing this point, the organisations are also asking "What kind of country and culture should South Africa's prisons reflect?"
Nelson Mandela was detained in Pollsmoor prison for more than six years and suffered from tuberculosis while there.
"No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones," Mandela has said.
Lee now lives on the breadline in an institute for the elderly in Cape Town. He has not received any compensation from the state.
Pollsmoor prison remains much the same as it was when Mandela was transferred from there in 1988, and as it was when Lee walked out of it in 2004.
Today the Constitutional Court will hear argument on an issue that will have serious consequences for Lee, human rights, public health and prisoners across the country.
The question we should be asking is this: What do we want the judgment to say about South Africa?
- Stephens is the Monroe Leigh Fellow in international law at Section27. This article was first published on www.dailymaverick. co.za