TB thriv­ing in hell-hole SA pris­ons

The South African Na­tional Aids Coun­cil puts Tu­ber­cu­lo­sis (TB) as the na­tion’s lead­ing cause of death, ac­count­ing for 8.4% of all nat­u­ral deaths in 2015. This World Aids Day, the Wits Jus­tice Project (WJP) looks at South Africa’s for­got­ten pop­u­la­tion of p

The Star Late Edition - - INSIDE -

BREATH­ING heav­ily and strug­gling up a short flight of stairs at the of­fices of the Wits Jus­tice Project, 64-year-old Michael To­e­rien clings to the handrail, with heavy steps he is de­ter­mined to make his way up. When he is fi­nally able to take a seat he lets out one last long sigh – his lungs are not what they used to be, he says.

To­e­rien con­tracted TB dur­ing his in­car­cer­a­tion in Knysna Prison from 2012 to 2017. While work­ing as an in­sur­ance bro­ker, he was sen­tenced to 10 years for fraud. In 2015, the same year Knysna Prison was awarded the na­tional ti­tle of Best Cor­rec­tional Ser­vices Cen­tre in the coun­try, To­e­rien con­tracted TB in the pleura – the lin­ing around the lungs.

Dur­ing his time in prison, To­e­rien started teach­ing in­mates sub­jects of ba­sic ed­u­ca­tion, such as English and math­e­mat­ics, through a prison pro­gramme. Classes, says To­e­rien, would con­sist of three to 12 pupils and would take place in a small cell with­out much ven­ti­la­tion – the win­dows were hardly ever opened.

One day, one of To­e­rien’s stu­dents came to class with a ter­ri­ble cough. “We thought he had a cold and I didn’t give it much at­ten­tion,” he says. “At one stage they told me that he was ill – but they didn’t tell me what ill­ness he had. He went away for a lit­tle while but he started com­ing back to class.” It was this in­mate, To­e­rien says, who he thinks in­fected him.

For in­mates like To­e­rien, the land­mark Dudley Lee rul­ing of the Con­sti­tu­tional Court in 2012 seemed to prom­ise changes in the im­ple­men­ta­tion of TB preven­tion and con­trol mea­sures. Five years later, how­ever, the De­part­ment of Cor­rec­tional Ser­vices (DCS) has all but ig­nored this rul­ing, ab­di­cat­ing re­spon­si­bil­ity for pris­on­ers who con­tract TB in prison.

Lee, now de­ceased, con­tracted TB in Pollsmoor while he was await­ing his trial from 1999 to 2004 on charges of money laun­der­ing, forgery and fraud. In an ar­ti­cle by Wits Jus­tice Project’s Ruth Hop­kins, Lee de­scribed his liv­ing con­di­tions in prison as a “pig sty, a madhouse and a health time bomb”.

He suc­cess­fully sued the DCS for his in­fec­tion, the Con­sti­tu­tional Court rul­ing that the state was re­spon­si­ble for Lee’s suf­fer­ing when he con­tracted TB, be­cause they had “failed to take ad­e­quate steps to protect him against the risk of TB in­fec­tion, (and) failed, once he was di­ag­nosed as ac­tively in­fected with TB, to pro­vide him with ad­e­quate med­i­cal treat­ment”.

Ba­sic pre­ven­ta­tive mea­sures were not taken by the DCS, Con­sti­tu­tional Court judge Ed­win Cameron wrote: “TB con­trol mea­sures at the prison were virtually non-ex­is­tent.” These con­trol mea­sures, ac­cord­ing to the judg­ment, in­clude med­i­cal screenings of in­com­ing in­mates, reg­u­lar check-ups, pro­vi­sion of ad­e­quate nu­tri­tion, iso­la­tion of in­fected in­mates and reg­u­lar ac­cess to med­i­cal staff.

In the Dudley Lee case the DCS ques­tioned whether it was Lee’s in­car­cer­a­tion or neg­li­gence on be­half of the de­part­ment that caused Lee to be­come in­fected with TB. The de­part­ment said Lee failed to prove that even if proper mea­sures were in place to curb TB in the prison the risk of in­fec­tion would be elim­i­nated, claim­ing: “What­ever man­age­ment strate­gies might be put in place there will al­ways be a risk of con­ta­gion.”

De­spite the Con­sti­tu­tional Court re­ject­ing this de­fence of cau­sa­tion, the de­part­ment has re­peated its ar­gu­ment and re­jected re­spon­si­bil­ity for the in­mates’ in­fec­tions in both James’ and See­dat’s cases. The de­part­ment claims they should sue the in­mates who in­fected them with TB and not the state. Jonathan Co­hen, Lee’s lawyer at the time, says this is a “ridicu­lous” ar­gu­ment in his opinion.

He adds: “The lack of ad­her­ence to the judg­ment means they are ex­pos­ing them­selves to a con­tin­u­a­tion of these kinds of law­suits un­less they rem­edy and rec­tify their ways. Un­less they can demon­strate a con­certed dif­fer­ence in the way they con­trol TB in pris­ons, and in the way that they are sup­posed to ad­here to their own leg­isla­tive du­ties, then they’re ex­pos­ing them­selves to fur­ther law­suits.”

Co­hen is cur­rently work­ing on cases of in­mates who claim to have con­tracted TB in pris­ons, sim­i­lar to Lee’s case.

Among these in­mates are Nassiera James and Zaid See­dat. See­dat and James were both im­pris­oned in Pollsmoor and con­tracted TB in the filthy and over­crowded cor­rec­tional fa­cil­ity. See­dat was Lee’s co-ac­cused and im­pris­oned from 2000 to 2003, while James was in­car­cer­ated and con­tracted TB in 2009.

In the DCS’s spe­cial pleas for both James’ and See­dat’s cases the de­part­ment re­it­er­ated that it was not re­spon­si­ble for the spread of TB in pris­ons, even though in the Lee case the Con­sti­tu­tional Court ruled that it was. It fur­ther pleaded, in James’ case, that it was her crim­i­nal con­duct which caused her to be de­tained in close prox­im­ity with other pris­on­ers and there­fore that caused her TB in­fec­tion. This ar­gu­ment was pre­sented by the DCS and re­jected by the Con­sti­tu­tional Court in the Dudley Lee case.

The DCS is stick­ing with this line of de­fence be­cause, ac­cord­ing to DCS spokesper­son Singabakho Nxumalo, “ev­ery mat­ter must be con­sid­ered on its own mer­its and facts as ev­ery case has pe­cu­liar­i­ties.”

“It’s as if Dudley’s case never hap­pened,” says Co­hen. “The im­pact of the Con­sti­tu­tional Court case is that it sends a mes­sage to the state to get its act to­gether. If they don’t they are go­ing to be faced with law­suits from other in­mates in sim­i­lar vul­ner­a­ble con­di­tions (as Dudley Lee).”

Co­hen has since taken on To­e­rien’s case so that he too may claim dam­ages from the DCS.

To­e­rien says his life has changed as a re­sult of the TB. His med­i­cal records re­flect per­ma­nent lung dam­age which ren­ders sim­ple ev­ery­day ac­tiv­i­ties a struggle for him.

“The Knysna prison was over­crowded and the med­i­cal care was not good,” he says, adding that he was not screened for TB upon ar­rival in the prison: “You only see a doctor once you tell them you’re ill.”

To­e­rien ad­mits, how­ever, that “Knysna is rea­son­ably clean and a more mod­ern prison than Pollsmoor – which is no­to­ri­ously dirty and rat-in­fested.”

Ac­cord­ing to Co­hen, Pollsmoor Prison is a health haz­ard, in par­tic­u­lar the await­ing-trial sec­tion. As part of the on­go­ing cases of See­dat and James, Co­hen is try­ing to get per­mis­sion from the DCS to place a de­vice in the await­ing-trial sec­tion of Pollsmoor that mea­sures CO lev­els in the air, as TB is an air­borne and com­mu­ni­ca­ble dis­ease. The DCS, says Co­hen, is try­ing ev­ery­thing to avoid plac­ing the de­vice in Pollsmoor. “They are us­ing de­lay tac­tics by tak­ing the mat­ter to court,” Co­hen says.

In 2015, Judge Cameron added to the dis­con­tent and re­leased a damn­ing re­port on the in­hu­mane con­di­tions in Pollsmoor Prison, declar­ing that he was “deeply shocked” by the “ex­tent of over­crowd­ing, un­san­i­tary con­di­tions, sick­ness, ema­ci­ated phys­i­cal ap­pear­ance of de­tainees”.

He de­scribed con­di­tions of over­crowd­ing; the prison was 300% over ca­pac­ity at the time, no run­ning wa­ter, filth, lice-in­fested bed­ding and open, un­treated wounds on in­mates. He specif­i­cally sin­gled out the await­ing-trial sec­tion of the prison where in­mates com­plained of hunger, mal­nu­tri­tion and lack of ex­er­cise, which is con­ducive to the spread of TB.

In its 2016/2017 an­nual re­port, the DCS claims it curbed TB, boast­ing a cure rate of 83.43% (1 239 out of ev­ery 1 485 pris­on­ers). The de­part­ment cur­rently op­er­ates about nine task teams aimed at tack­ling, among other is­sues, TB in pris­ons.

“The DCS con­tin­ues to pro­vide com­pre­hen­sive health care ser­vices to the in­mate pop­u­la­tion,” says Nxumalo, “in­clud­ing nu­tri­tion and hy­giene ser­vices, phar­ma­ceu­ti­cal ser­vices and pri­mary health care.”

He con­tin­ues: “To ad­dress iden­ti­fied chal­lenges, DCS has in­ten­si­fied col­lab­o­ra­tion with stake­hold­ers, in­clud­ing the Na­tional De­part­ment of Health dis­tricts and sub-dis­tricts, for con­ti­nu­ity of care to­wards en­sur­ing that treat­ment out­comes for TB are achieved.”

How­ever, ac­cord­ing to Ari­ane Nevine, na­tional pris­ons spe­cial­ist at Sonke Gen­der Jus­tice (SGJ) – who were am­ici cu­riae (im­par­tial ad­vis­ers) in the Dudley Lee case – im­ple­men­ta­tion of these mea­sures to con­trol and pre­vent the spread of TB in cor­rec­tional cen­tres is lack­ing.

She says these mea­sures have only been poli­cies and nothing else, “Since the Dudley Lee case the DCS has still not en­acted a TB in­fec­tion preven­tion and con­trol pol­icy, although it has been in the pipe­line for a num­ber of years.”

“Af­ter the Dudley Lee de­ci­sion, in 2015, SGJ and Lawyers for Hu­man Rights lit­i­gated against the gov­ern­ment be­cause (of gov­ern­ment in­ac­tion regarding) ex­treme over­crowd­ing and in­hu­mane con­di­tions in the very same fa­cil­ity that was the sub­ject of Dudley Lee, pre­cisely be­cause the con­di­tions in Pollsmoor Re­mand hadn’t changed,” she says.

As a re­sult, in De­cem­ber last year the Western Cape High Court ruled that the con­di­tions in Pollsmoor Prison were in­hu­mane. The Min­is­ter of Cor­rec­tional Ser­vices and the DCS were or­dered to re­duce the num­ber of pris­on­ers in Pollsmoor’s re­mand de­ten­tion fa­cil­ity to 150% of its ac­com­mo­da­tion. By the end of last year, 800 re­mand de­tainees had been moved to the Medium A fa­cil­ity of Pollsmoor.

How­ever, TB still runs ram­pant in en­vi­ron­ments favourable to its spread and with­out the ef­fec­tive im­ple­men­ta­tion of con­trol mea­sures in pris­ons it will con­tinue to spread. Azarrah Kar­rim is a jour­nal­ist with the Wits Jus­tice Project (WJP) based in the jour­nal­ism de­part­ment of Wits Univer­sity. The WJP in­ves­ti­gates mis­car­riages of jus­tice and hu­man rights abuses re­lated to the crim­i­nal jus­tice sys­tem.

PIC­TURE: SIYABULELA DUDA

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