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An ex-prisoner who says he contracted HIV after being gang-raped on his first night in jail is suing the Correctional Services Ministry for R1.7 million damages.
The 41-year-old Western Cape man alleges that he was “deliberately” placed in a cell with known 28s gangsters.
The prison warder on duty had incited the attack because when the prisoner had been put in the cell the warder had said: “Hier is die gemors (here is the rubbish).”
On the receiving end of the civil claim is the office of the Minister of Correctional Services – the defendant in the matter – whose lawyers denied the allegations in papers before the Western Cape High Court, saying inmates who weren’t gang members were not placed in the same cells as those who were.
The plaintiff’s attorney, Jonathan Cohen, believed it was important for such cases to go through the legal process because a pronouncement from the courts might prompt the department to take action against sexual violence.
“When someone is sentenced to a prison term it does not mean they’re also sentenced to sexual abuse,” he told the Cape Times.
In this case, the former prisoner was convicted of murder and sentenced to 15 years behind bars in 2001. He was released on parole on October 6, 2009 – a decade after he was allegedly raped on October 13, 1999 at Allendale Correctional Institution in Paarl during his first night of incarceration as an awaiting-trial prisoner.
In court papers drawn up by his lawyers, they claim that he was raped by two gangsters, which had resulted in his becoming HIV-positive.
He discovered this in March 2002 when was transferred from Allendale to Malmesbury Correctional Centre and underwent an HIV/Aids test. He had also suffered physical injuries, humiliation and psychological trauma, they said.
It is their contention that the prison warder was a Correctional Services employee who knew, or ought to have known, that gang members engaged in sex with other inmates without their consent.
As a result, the defendant had “breached his duty of care” to the former prisoner because the warder had “deliberately” placed him in a cell with gangsters and had “incited” them.
Should the court not agree with this, their alternative argument is that the defendant failed to take steps to protect him and guard against his being raped when it “ought to have known that this was a possibility”.
But the minister’s lawyers have denied all the allegations, contending that the man was not placed in a cell with prisoners who were known to be 28s gang members.
Their court papers read: “… known gang (such as “28”) members are normally as a matter of good practice placed in separate cells, but in proportion to their numbers, with other gang members of other groupings, ie 26 or 27 gang members”.
He had been placed in a communal cell “without a pre-determination” that he’d be placed in a cell with 28s gangsters.
It was further argued that while the man had had the opportunity to report the incident to the prison authorities – he had been at the prison clinic on several occasions between 1999 and 2004 – he hadn’t done so.
In addition, the minister is asking for the claim to be dismissed before it is even heard on the basis that the window period within which the former prisoner could lodge the court proceedings closed in 2002.
While prison rape is known to be a problem, Sasha Gear, programme director for Just Detention International, said it was not clear precisely how prevalent it is.
Although a policy – which would introduce measures to detect, prevent, respond to and document sexual violence in SA’s prisons – had been drafted, Gear said it was “stuck” in the system and was yet to come to fruition.