The Star Late Edition
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
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.