archive > The right to access to health care > Access to medicines > EN and Others v Government of the Republic of South Africa and Others (Westville)

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The AIDS Law Project ran at Wits to 2010 when it was amalgamated into the newly-formed SECTION27

EN and Others v Government of the Republic of South Africa and Others (Westville)

Since October 2005 the TAC and the AIDS Law Project (ALP) have assisted HIV positive inmates at Westville Prison in acquiring ARVs that have routinely been refused to them by prison authorities. Situated in Kwazulu Natal, one of the provinces most severely affected by HIV/AIDS, Westville had steadfastly prevented TAC or other NGOs from conducting treatment workshops, treatment literacy programs, or any form of HIV awareness training. On 28 October 2005 the ALP sent a formal letter to Westville Prison authorities questioning what steps were being taken to ensure inmates had access to ART, and where inmates were able to receive such treatment. The ALP gave Westville Prison authorities just over a week to respond failing which they would assume no measures were being taken to provide ART, forcing them to instigate legal action. No responses were received. After consultation with State Attorney Krish Govender a round table meeting took place on 15 December 2005 during which an implementation plan was proposed and agreed on in principle, although upon later investigation in January 2006 it became evident that these measures had not being taken. On 8 March 2006 the ALP announced its intention to start legal proceedings. The Notice of Motion asked that respondents be ordered to remove restrictions preventing applicants 1 – 16, as well as anyone else who met the criteria set out in the National Department of Health’s Operational Plan for Comprehensive HIV and AIDS Care, from being able to access ART from either within the prison or from an accredited public health care facility.

A Case of Miscommunication?

While delivering his judgment Judge Pillay noted that the TAC and Government had strikingly different views on what the locus of the case was. Counsel for the TAC felt that two important constitutional violations had taken place in that the respondents failed to discharge their constitutional obligation to the Applicants and others affected by HIV, and that Westville Prison authorities had neglected prisoners’ right to conditions of detention that are consistent with dignity, including at least; exercise, the provision at State expense of adequate accommodation, nutrition, reading material and medical treatment. The Government conversely seemed to believe that the applicants were seeking to override the Department of Health’s Operational Plan, when in fact they were just attempting to ensure that prisoners were treated in accordance with the plan immediately due to their compromised health status which was significantly amplified by their poor living conditions. Of the first fifteen applicants in need of treatment (who all had CD4 counts below 200) eight had CD4 counts below 100 and five had a count below 50, despite the ARV Treatment Guidelines for the public sector adopted by the Government in 2004 stating that CD4 counts below 200 cells/ml are by definition severely ill and require immediate assessment for ART.

Constitutional and Legislative Failure

Judge Pillay cited various precedents where government has been forced to uphold the rights of prisoners dating as far back as 1912, and concluded relatively early on that there was no dispute that these fifteen prisoners as well as any others in similar condition should have been receiving ART. Furthermore he acknowledged that it would be fair to claim that Westville Prison had a history of non-compliance with the Operational Plan given that approximately 110 people had died from HIV related illness in 2005. There is no evidence to suggest that any of these prisoners were on such treatment prior to the ALPs initial letter in October 2005, at which point the prison authority began to take minor measures to grant prisoners access to ART. The Judge went as far as to criticize the Operational Plan for being too focused on the ordinary citizen, and not being more articulate about the rights of disenfranchised groups in which prisoners are categorized. He closed his judgment by describing respondents adherence to the implementation of the law as being inflexible, irrational, and characterized by unjustified and unexplained delay. He found that the medical care afforded to applicants 1 – 15 and other similarly affected prisoners at Westville Prison was not adequate. In addition, he found that the Government had fallen short of their constitutional and legislative obligations to the Applicants, and that the current legal situation might have been avoided if counter-measures had been taken as early as November 2004. Respondents were ordered to remove all restrictions prohibiting applicants (and similarly affected prisoners at Westville) who meet the criteria outlined in the Operational Plan from accessing ART at Westville Prison or at a public health facility within two weeks. Respondents were given until 7 July 2006 to serve the applicants with an affidavit stating how it intends on complying with the above order, after which the applicants would have five days to deliver comment, and then a further five days to receive a response from the respondents. Costs were awarded to the applicants.

Interim Order and Final Hearing

Soon after Pillay delivered his judgment the Government and TAC returned to court with the Government seeking leave to appeal to the Natal Provincial Division or the Supreme Court of Appeal, and the TAC seeking an order for the initial ruling to be implemented pending the result of the appeal. Pillay found that while the respondents had a right to appeal to a full bench of the Natal Provincial Division, the irreparable harm being inflicted by the sustained lack of treatment to HIV positive inmates necessitated the implementation of the initial order. The final hearing took place two months later, in which Judge Nicholson not only ruled that the respondents immediately provide ART for the applicants and other HIV positive prisoners, but also found that they were in contempt of court as a result of failing to implement the interim order issued by Judge Pillay. Judge Nicholson focused on using both personal testimonies and legal evidence to illustrate how governments’ failure to provide ART had personally affected inmates as well as serving to tarnish the role of government. He cited the death of applicant MM whose CD4 count was below 100 in November 2004, and who was only placed on treatment far too late in July 2006 after he had suffered severe bouts of piles, painful rashes, fungal infections, TB, general itchiness, oral thrush, penile sores, mouth sores, septic sores on knees, and painful feet over the years. He also claimed that the Government’s failure to implement the interim order displayed a serious constitutional crisis, the likes of which could serve to harm South Africa’s short but proud history of the separation of powers.

Costs of application were ordered to stand for determination by the court hearing the trial action at a later date.

Judgements & Orders of the Court

Pleadings

Founding Affidavit and Motion Papers

Pillay Judgment of 22 June 2006 – Related Papers

Pillay Judgment of 25 July 2006 – Related Papers

Supervisory Papers

Additional Documents

ALP 18 month review 2007 – Implementing the Operational Plan in prisons by Jonathan Berger

Applicant’s commentary on state plan in the High Court of South Africa – Durban and Coast Local Division

Towards a national framework for a comprehensive HIV and AIDS plan for correctional centres: implementing the NSP in prisons by Jonathan Berger