Lukas Muntingh
The duty of the state to ensure humane conditions of detention and thus manage risk situations pro-actively in prisons was the subject of a recent decision from the Western Cape High Court.
More specifically, these related to poor conditions of detention that may have a material impact on the health of prisoners, such as contracting tuberculosis (TB). In this case, Dudley Lee was infected with TB while detained at Pollsmoor Maximum for nearly five years, from November 1999 to September 2004.
The ruling confirmed that the Department of Correctional Services (DCS) is responsible for the safe custody under humane conditions of prisoners and that the department is responsible for their health and welfare. The court found that the DCS was to be held liable for Lee contracting TB because the department was aware that the prevailing conditions of detention facilitated the spread of TB, but failed to take any measures to prevent it.
The judgment, reflecting on the time that Lee spent at Pollsmoor, reveals a sorry state of affairs with reference to conditions of detention and more specifically the nature of health care services. Even though the case concerns a period a few years ago, it remains shocking that it deteriorated to this level.
Apart from severe overcrowding and the problems associated with that, the number of nurses at the prison declined from 35 to two. This became a central issue in the case, as sufficient nurses are fundamental in preventing and managing TB in a prison. Two expert witnesses, both former medical doctors at Pollsmoor (Theron and Craven), added considerable weight in evidence with their intimate understanding of TB in prisons and the appropriate management of the disease.
Prisons are by their very nature areas of high-risk settings for communicable diseases, especially when bacteria are airborne. However, “the bacterium is vulnerable to sunlight and fresh air”, as the judgment notes, and the risk for infection is significantly reduced through effective ventilation, maintaining clean cells and allowing prisoners as much time as possible in the open air. The overall impression gained emphasises the lack of ventilation, severe overcrowding, dirty cells and smoke-filled cells from cigarettes as well as from a makeshift cigarette lighter called a “hondjie”.
Prisoners were let out of the cells for 30 to 60 minutes a day and at 4pm the solid steel cell doors were shut until the next morning. While the TB bacterium is soon rendered harmless by sunlight and fresh air, in a prison cell that is 200 percent full with no or minimal ventilation, it stays active for much longer.
Given the levels of smoke and lack of ventilation, constant coughing and sneezing by prisoners is common, thus expelling possibly infected saliva into the air. Although no exact figures are given, TB was prevalent among prisoners at Pollsmoor, but more worrying was that multidrug-resistant TB (MDR) and extreme-resistance TB (XDR-TB) were present. And, TB-infected prisoners were not segregated.
To prevent and effectively manage the spread of TB in prisons is well known. Firstly, it requires acceptable conditions of detention with adequate ventilation in cells and ample time out of the cells. Furthermore, new admissions should be properly screened; prisoners who have TB or are suspected of having TB or are undernourished and susceptible to TB should be separated; adequate nutrition should be provided; and there should be regular and effective screening of the total population and strict adherence to the treatment regime. To achieve this requires sufficient nurses.
There was little evidence that the DCS did anything to prevent the spread of TB at Pollsmoor. Once Lee had been diagnosed he was, however, treated effectively. The point is that he and possibly many other people who have been detained at Pollsmoor could have avoided being infected if the necessary preventive steps had been taken by the DCS.
A peculiar sequence of events pertaining to the shortage of nursing staff is described in the judgment; it was evident that the area manager, the doctors, the DCS head office, the national commissioner and the minister were aware of the shortage of nurses and the risks that this posed. In response to a report Craven submitted to the Portfolio Committee on Correctional Services, Commissioner Linda Mti wrote in October 2001 to the Acting Provincial Commissioner, Mnikelwa Nxele, and said: “If the situation as described by Dr Craven is not addressed, we are heading for an unprecedented catastrophe.”
Yet, the vacant positions were not filled. The reasons or even an explanation for the failure to fill the vacant positions are not given in the judgment, but poor management seems to lie at the heart of it. While the area commissioner of Pollsmoor was aware of the risk situation and supported the doctors in their recommendations for more nurses, it was not within his power to appoint them; it was the responsibility of the Provincial Office (Western Cape).
The shortage of nurses and the failure to fill the vacancies are central foci of the case, but other deficiencies are highlighted, ranging from falsification of records, gang leaders controlling access to health care staff, and prisoners assisting in the administration of new arrivals. It appears that the DCS at Pollsmoor relied on prisoners to self-report if they suspected that they had TB.
Since the DCS had a positive duty to protect the rights of prisoners, the court found that there was no evidence “the DCS had taken any steps to guard against the spread of TB”.
The court, in affirming that the DCS is responsible for the safety, health and wellbeing, found that Lee’s rights to dignity and to be free from inhuman or degrading treatment had been violated. The court emphasised the overcrowded and poorly ventilated conditions and drew similarities with a case from the European Court of Human Rights, Kalashnikov v Russia, where the court acknowledged the efforts being made by the Russian government to improve prison conditions, but no such similar evidence was placed by the DCS before the Western Cape High Court.
Two and a half years after Lee left Pollsmoor (after more than 70 court appearances, the charges against him were withdrawn), a delegation from the Portfolio Committee on Correctional Services paid an unannounced visit to the prison on May 30, 2007. It found that only 14 of the 36 funded nursing posts were filled and noted several other problems with the health care services at the prison. Whether the situation has now improved is unknown but this needs to be established, preferably by the Office of the Inspecting Judge for Correctional Services.
Transparency and accountability are fundamental principles to our democratic order and the deepening and strengthening of democracy cannot prevail when the bacteria of impunity and opaqueness lurk, if not flourish, in state institutions.
The Lee case brought that transparency to overcrowding, poor management and inadequate health care, and the court has held the DCS accountable. The evidence before the court described a prison that placed the lives of thousands of people in danger, yet senior management opted to stand indifferent to these risks. The court also found that the conditions of detention at Pollsmoor Maximum violated prisoners’ rights to dignity and to be free from inhuman and degrading treatment. Apart from the fact that Lee contracted TB, being held in a cramped, unventilated cell for 23 hours a day, the court has found, violates the constitution.
Over the past 15 years we have become used to overcrowded prisons, accepting that this is perhaps the way it is. The Western Cape High Court has ruled that this is wrong and asks the simple question: Why was overcrowding allowed to continue?
l Muntingh is Project Co-ordinator, Civil Society Prison Reform Initiative, Community Law Centre, University of the Western Cape.