Post by cjm on Aug 5, 2019 18:14:39 GMT
Facts are from the Constitutional Court judgement delivered by NKABINDE J, for the majority, and from an article in the The South African Health News Service.
The case raises issues of causation which I am not focusing on here. My focus is the human side: Lee, a trial awaiting prisoner, since November 1999, eventually released in September 2004, over four years after entering prison. He was acquitted of the charges against him among others, fraud, counterfeiting and money laundering.
"Facts
[as per NKABINDE J - footnotes removed]
...
[6] The applicant was incarcerated in the admission section at the maximum security prison at Pollsmoor (Pollsmoor) from 1999 to 2004, but was released on bail for a period of approximately two months in 2000. He attended court on no fewer than 70 occasions. When inmates were transported for court attendance, they were stuffed into vans like sardines. At court they were placed into cells which were jam-packed.Those who appeared before the regional court were taken to a separate, smaller cell which was not overly full.
[7] For most of his incarceration Mr Lee was housed in E-section of the maximum security prison at Pollsmoor, a cell designed for occupation by one person but which he sharedwith two other inmates. At one stage, inmates at E-Section, including the applicant, were moved to the Medium B prison where they were detained in a communal cell with about 25 inmates for a period of time. On being moved back to E-Section the applicant was held in a communal cell until he was placed in a single cell again.
[8]The following appeared from the Statement of Agreed Factual Findings: the applicant was not infected with TB when he arrived at Pollsmoor; the responsible authorities were “pertinently aware of the risk”of inmates contracting TB; TB is an airborne communicable disease which spreads easily especially in confined, poorly ventilated and overcrowded environments; Pollsmoor is notoriously congested and inmates are confined to close contact for as much as 23 hours every day –this providing ideal conditions for transmission; on occasion,the lock-up total was as much as 3052inmatesand single cells regularly housed three inmates;communal cellswere filled with double and sometimes triple bunks; the responsible authorities relied on a system of inmates self reporting their symptoms upon admission to the prison and during incarceration;and the control of TB at Pollsmoor depends upon effective screening of incoming inmates,the isolation of infectious patients and the proper administration of the necessary medication over the prescribed period of time.
[9] The Standing Correctional Orders17 (SCOs), as summarised by the High Court, require inmates to be subjected to the effective screening ...
[10] During his incarceration the applicant regularly underwent sputum tests, the results of which were negative until June 2003. He was diagnosed with TB after three years of his incarceration. Despite this diagnosis and the possibility that he would remain contagious for at least another two weeks, the applicant was returned to his cell where he was confined for up to 23 hours with at least one other person.After his release in 2004, the applicant instituted an action for damages against the respondent in the High Court.
...
[13]The pleadings establish that the applicant was imprisoned at Pollsmoor and that during the period of his imprisonment the responsible authorities failed to take adequate, or any,steps to protect him against the risk of TB infection;failed, once he was diagnosed as actively infected with TB, to provide him with adequate medical treatment and medication to cure and prevent further spread and to adhere to his numerous requests for adequate treatment of TB. The said conduct and omissions, it is pleaded, thus violated the applicant’s rights...
...
[59] That there is a duty on Correctional Services authorities to provide adequate health care services,as part of the constitutional right of all prisoners to “conditions of detention that are consistent with human dignity”, is beyond dispute. It is not in dispute that in relation to Pollsmoor the responsible authorities were aware that there was an appreciable risk of infection and contagion of TB in crowded living circumstances. Being aware of that risk they had a duty to take reasonable measures to reduce the risk of contagion.
[60]Although I accept that a reasonably adequate system may not have “altogether eliminated the risk of contagion”, I do not think that the practical impossibility of total elimination is a reason for finding that there was no duty at least to reduce the risk of contagion. It seems to me that if a non-negligent system reduced the risk of general contagion, it follows –or at least there is nothing inevitable in logic or common sense to prevent the further inference being made–that specific individual contagion within a non-negligent system would be less likely than in a negligent system. It would be enough, I think, to satisfy probable factual causation where the evidence establishes that the plaintiff found himself in the kind of situation where the risk of contagion would have been reduced by proper systemic measures.
[61]In postulating the hypothetical non-negligent conduct needed for the substitution exercise,the SCOs122 provide helpful guidance. The minimisation of risk of contagion is largely dependent on the effective screening of incoming prisoners and the isolation of infectious patients. The SCOs provide for screening for medical problems by a registered nurse on admission and for a medical examination within 24 hours by a registered nurse, medical officer or medical practitioner. They also make special provision for the immediate reporting of communicable or contagious diseases and for theisolation of persons with these diseases. There is nothing on record to suggest that this kind of screening, examination and isolation in terms of the SCOs would not have been effective in reducing the risk of infection and contagion of a disease like TB –indeed the case the authorities initially sought to present was that the process was properly followed. It does not require much imagination to postulate that adherence to the SCOs may constitute the non-negligent conduct necessary for the substitution exercise.
[62] The Supreme Court of Appeal acknowledged that an effective programme did not exist during Mr Lee’s incarceration, as evidenced by superficial initial screening and the failure to isolate inmates who had TB. If the proper process had been followed, this would not have happened.In my view, it is legitimate to draw the inference that this is also probably how Mr Lee contracted the disease.
...
[65] It is indeed so that “prisoners are amongst the most vulnerable in our society to the failure of the state to meet its constitutional and statutory obligations”, and that “a civilised and humane society demands that when the state takes away the autonomy of an individual by imprisonment it must assume the obligation. . . inherent in the right. . .to ‘conditions of detention that are consistent with human dignity’.” I thus agree that “there is every reason why the law should recognise a claim for damages to vindicate [the prisoners’]rights”. To suggest otherwise, in circumstances where a legal duty exists to protect Mr Lee and others similarly placed, will fail to give effect to their rights to human dignity, bodily integrity and the right to be detained in conditions that are consistent with human dignity under the Constitution, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition,and medical treatment ...
[69] Furthermore, the democratic values of state accountability, responsiveness and the rule of law are important aspects of the Constitution which are implicated here. To borrow the words of Madala J in Nyathi v MEC for Department of Health, these values are “pillar-stones of our democracy” and “must be observed scrupulously.” If not, particularly in light of the injunctions of the Act and the rights sought to be vindicated, “we have a recipe for a constitutional crisis of great magnitude.” The Supreme Court of Appeal pertinently remarked:
“Mr Lee has certainly had a hard time of it. For four years he was imprisoned while the state mustered its case against him and then the state failed. Meanwhile Mr Lee knew that he was at risk of contracting [TB] in a prison where the health-care regime was breaking down.When it occurred he had to manipulate and cajole at times to ensure that he consistently received medication, conscious that he would suffer adverse consequences if he failed to do so. He had good reason to feel aggrieved when he left prison but his troubles were not yet at an end.When he vented his grievance by suing the state he was met with a defence on every leg of his claim. The state contested that Mr Lee had been infected in prison with no substantial grounds for doing so. It contested the allegations of an inadequate health-care regime when it must have known that it was defending the indefensible. The failing [health-care] regime had been repeatedly reported by its medical doctors at high level, various reports on the situation had been circulated, newspapers had reported the position, a report of an inspector from the office of the Inspecting Judge that had been prepared some four years before the matter came to trial disclosed that [TB] management was virtually non-existent, and so on. Yet the state persisted. . . [not acknowledging any] responsibility towards Mr Lee at any time.Mr Lee set out to vindicate an important statutory and constitutional right and has done so substantially. ... The state has important responsibilities to its citizens. It might not always be able to fulfil them but then it ought properly to recognise where it has failed.”
[70] The responsible authorities’ function is to execute its duties in accordance with the purposes of the Act which include detaining all inmates in safe custody whilst ensuring their human dignity and providing adequate health care services for every inmate to lead a healthy life.The rule of law equires that all those who exercise public power must do so in accordance with the law and the Constitution. This, including the requirements of accountability and responsiveness, provides ‘additional’ reasons for finding in favour of the applicant and imposing delictual liability. This would enhance the responsible authorities’ accountability,efficiency and respect for the rule of law.
... "
The following extract is from the article referred to at the start of this post.
"The prison was at over 200% occupancy, with 40 to 60 men crammed into the communal cells. They were kept there 23 hours a day. Mr. 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. The men breathed then re-breathed the air and awaited their trials. "
So, in the end Lee triumphed, but at what cost.