The Constitutional Court heard argument yesterday over whether the State was to blame for a prisoner contracting tuberculosis.
The constitutional rights of Dudley Lee, who was later acquitted on fraud and money laundering charges, were infringed and violated, his lawyer Michael Donen, SC, argued.
“There was infringement of his rights and security of a person,” said Donen, whose client claimed he contracted TB due to the negligence of prison authorities.
Donen submitted that Lee’s detention was to blame for the infection.
“The right that was infringed was the detention. If he was not detained, he would not have contracted TB. That was the causation.”
Donen argued that Lee had been in an overcrowded prison, where many inmates were diagnosed with TB, and it was a “serious risk”.
He contended the act of detention became unlawful because the “conditions were unlawful”.
“Ultimately, if the conditions are cruel… then the detention becomes unlawful.”
TB is an airborne and contagious illness, and South Africa has one of the highest incidence rates in the world.
Earlier this month, the Treatment Action Campaign, the Centre for Applied Legal Studies, and the Wits Justice Project, were granted permission to join the application for leave to appeal as friends of the court.
The rights groups said the case held serious implications for human rights, public health, and the fight against TB in South Africa.
According to the groups, Lee was healthy when he was sentenced to serve time in Pollsmoor Prison in 2000 for crimes including fraud and money laundering. Three years later, he was diagnosed with TB, and the following year he was acquitted and released.
Lee took the department of correctional services to the Western Cape High Court. It found the ministry was unable to show that prison authorities had taken any steps to prevent the spread of TB.
The department appealed against the ruling, and won in the Supreme Court of Appeal. The SCA found Lee could not prove that the minister caused his infection.
The SCA had asked Lee to prove what was impossible to prove, the rights groups said.
Members of the groups gathered outside court in the morning, singing and dancing to highlight their cause. Later, they sat inside court to observe.
The court heard that Lee was a smoker, but it was unknown if it contributed to his infection.
Donen argued that there was negligence on the side of the prison authorities, who were aware that TB was prevalent and contagious, but did nothing about it and ultimately failed to comply with their standing orders.
He said the onus was on the State.
A study on TB at Pollsmoor Prison had been recently carried out, and researchers found that the risk of transmission of TB was 90 percent in communal cells at the prison, the court was told.
Lee was in a single cell for most of his time there and spent at least two occasions in a communal cell.
The cause of infection was difficult to determine, and authorities may have been unable to eliminate or reduce the risk.
Ismail Jamie SC, for the respondent, said there were various possible sources of the infection.
He argued that Lee could have contracted it while being transported to Pollsmoor Prison, or while in the company of another prisoner who was recently diagnosed.
“The bare facts are that Mr Lee’s circumstances were the best possible at Pollsmoor… he had a single cell.”
The court heard that prisoners were confined for long periods of time, sometimes up to 15 hours a day.
“Once the prison doors are shut, [they are] shut for about 15 hours a day.”