Fact: jails fail in TB duty

The leading cause of death in seven SA prisons in 2010 was tuberculosis, but the programme to control the spread of the disease in prisons is "virtually non-existent", the Constitutional Court heard yesterday.

Former prisoner Dudley Lee is suing the Department of Correctional Services for damages after he contracted tuberculosis in prison.

Lee, 65, spent four years in Pollsmoor Prison awaiting the finalisation of his trial.

He was healthy when he was locked up in 1999, but by the time he was found not guilty of fraud - in 2004 - he had contracted tuberculosis. The Department of Correctional Service is arguing that Lee cannot prove he would not have contracted tuberculosis even if their programme to prevent tuberculosis was up to scratch.

However, the department has admitted it does not follow its own guidelines to stop the spread of the disease .

Lee's case is now being used to highlight the lack of human rights that exist in the country's overcrowded prisons for awaiting-trial detainees.

The Wits Justice Project, the Centre for Applied Legal Studies and the Treatment Action Campaign are participating in the trial as friends of the court.

Centre for Applied Legal Studies lawyer Lisa Chamberlain said : "What is under dispute [in court] are technical legal arguments, but what is not under dispute is that the Department of Correctional Services did not manage to control the spread of tuberculosis."

Wits Justice Project coordinator Nooshim Erfani-Ghadimi said the way prisoners are treated has wider implications for society.

"A lot of people think 'it's just prisoners - 'let them rot'. The issue is what we breed in prison will come out."

Advocate Adila Hassim told the Constitutional Court that South Africa has one of the highest incidences of tuberculosis in the world - and its failure to manage the disease in crowded prisons was one of the reasons.

South Africa has the third-highest rate of new tuberculosis infections after India and China, according to the 2012 National Strategic Plan on Aids and Tuberculosis.

Hassim argued that the state had a duty to put reasonable systemic measures in place to prevent the spread of the disease in jails.

"It is not the duty of the state to eliminate tuberculosis, but it should take specific, reasonable measures to control it," Hassim told the court.

Defence advocate Ismail Jamie was forced to concede in court that Lee was put at much higher risk of contracting tuberculosis due to the conditions in jail when Justice Edwin Cameron asked him: "Do you accept the system of tuberculosis control became virtually non-existent after 1998?"