Ex-detainee takes Ministers of Correctional Services to Constitutional Court

The Constitutional Court will hear the case of Dudley Lee, an ex-detainee who contracted Tuberculosis (TB) while incarcerated, against the Minister of Correctional Services on the 28th of August.

According to a media briefing today, Lee will appeal the Supreme Court of Appeal’s judgement which rendered it “impossible for a prisoner to successfully claim civil damages against the Department of Correctional Services for causing him or her to become infected with TB.”

The Treatment Action Campaign (TAC), the Centre for Applied Legal Studies (CALS) and the Wits Justice Project will be represented by Section 27 as friends of the Court.  Please read our statement below:

Controlling TB in prisons is key to reducing its spread in South Africa. 

We cannot hope to control the spread of TB in South Africa without controlling it in our prisons.

That is why the Wits Justice Project (WJP) decided to join the Treatment Action Campaign and the Centre for Applied Legal Studies as friends of the court when the Constitutional Court hears the Dudley Lee v the Minister of Correctional Services case on 28 August 2012.

The Dudley Lee case is important for the WJP because Lee was in remand detention for four years, before being acquitted, during which time he contracted TB. Remand detainees are people who have been arrested and charged, but whose trials have not been finalized. They have not yet been found guilty of any crime, and are presumed innocent under the South African Constitution.

In March 2012, 41% of all inmates in South Africa were awaiting trial detainees. Ironically, remand detainees endure conditions far worse than convicted inmates. Services available for convicted inmates include access to educational and vocational training programmes, rehabilitation and social services and psycho-social support. Because remand detainees are seen to be in a “waiting room”, only the barest essentials are provided.

One of the major factors contributing to the high number of remand detainees is the unreasonable delays in bringing trials to a conclusion. The WJP has written a series of articles highlighting the various ways in which such delays occur, including arbitrary arrests by the police, unreliable chains of evidence, missing files, dockets and transcripts, over-stretched court resources, and unnecessary postponements and adjournments.

Remand detainees are often living in conditions which can best be described as sub-standard and inhumane. The average level of over-crowding in South Africa’s correctional centres is 137%. In 2011, 18 centres were overcrowded by 200% or more.

When facilities host more than the number of people they were designed for, there are serious repercussions – including damages to the physical and mental health of inmates and warders. And it leads to infringements of the human rights outlined in the Constitution itself.

A study in Pollsmoor Prison showed that there is a 90% risk of TB transmission per year and that just by implementing the current national recommendation on cell occupancy, the transmission rate could be cut by 30%.

The WJP believes that the Dudley Lee case is important in highlighting the State’s responsibility for ensuring that the Constitutional rights of inmates (including adequate living conditions and health standards) are maintained and safeguarded.

In addition, the WJP chose to focus on this case because there were many instances where those charged with protecting the health of Dudley and other inmates did not take adequate steps to do so. TB and HIV will continue to spread through our prisons – and through released prisoners to the rest of society – without adherence to known protocols and procedures. The need for properly ventilated cells needs to be enforced, as does the need to find solutions to the chronic overcrowding in our prisons.

About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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