provision of anti-retrovirals (ARVs) to prisoners at the Durban-Westville
Correctional Centre
31 August 2006
Following the decision of the Durban High Court regarding access to
antiretroviral treatment by prisoners at the Durban-Westville Prison, an
impression has been created that government does not respect the decisions of
the courts. The government wishes to clarify its position in this regard.
The Government of the Republic of South Africa fully subscribes to the
doctrine of separation of powers between the Executive, an independent
Judiciary and the Legislature (Parliament). The three arms perform different
functions as prescribed by the Constitution of the land.
An independent judiciary is one of the cornerstones of our democracy and the
Executive will ensure that court judgments are complied with by all state
institutions at all times. When a state institution lodges an appeal against
the decision of a court, as happens in any democracy, this does not amount to
defiance of the judiciary. Government would like to state categorically that
there was never an intention on its part not to comply with the decision of the
courts. The appeal was done in good faith and it was an attempt to alert the
court to the administrative burden that would arise as a result of the decision
of the court.
Further, the government never gave an instruction to any of its officials
not to comply with the Pillay judgment. Therefore, there is no constitutional
crisis in this country as the Executive will never give such an order and will
ensure that all state institutions abide by the spirit and the letter of the
constitution.
During the appeal stage, the Department of Correctional Services did not
stop the programme of providing and expanding access to ARVs to prisoners as it
fully understood its responsibility in this regard, and that it had to comply
with the Pillay judgment. While the appeal was pending, the following concrete
steps were taken:
* ARV therapy and treatment was provided to 116 offenders , 71 of whom were
on ARV medication
* two full-time counsellors were appointed to provide counselling on site at
the prison
* three visiting medical doctors were assigned to the facility
* an application was lodged to accredit the Durban-Westville correctional
facility as a site to administer ARV treatment. This accreditation will be
finalised shortly.
These actions demonstrate that there was never an intention to undermine the
Pillay judgment. This factor was indeed confirmed by Judge Nicholson who
acknowledges in his judgment that "although there was no proper compliance with
Judge Pillay's order, there has been progress." However, Government regrets
that the department concerned had not met Judge Pillay�s order to submit an
affidavit, which would have explained all the steps that were taken regarding
expansion of ARV provision to prisoners.
Government has and continues to take steps to expand access to ARVs to
serving prisoners who require this treatment, in our prisons across the
country. This will be expanded largely through the accreditation of prison
facilities as sites for ARV treatment. This move will reduce the administrative
burden of having to shuttle prisoners to public health facilities, and reduce
the possibilities of prisoner escapes during travels to and from public health
facilities.
It must be borne in mind that security considerations are a key factor every
time a prisoner is taken out of prison to a public health facility to receive
medical attention, as the risk of prisoner escape increases. Public health
facilities are still developing their capacity to expand access to ARV
treatment. To date, three centres have already been accredited as sites at the
following prisons i.e. Grootvlei Free State, Pietermaritzburg and Qalakabusha
in KwaZulu-Natal. Concrete steps will also be taken to ensure that at least one
correctional facility is accredited as a site that can offer ARVs in each of
the regions of the Department of Correctional Services.
In the interest of progress and the need to ensure that the prisoners who
are suffering from AIDS receive the treatment and care that they need, appeals
against court decisions will not be used as a stumbling block to frustrate
access to ARVs and other forms of treatment. The Department of Correctional
Services, in partnership with the Department of Health, will take all the
necessary steps to ensure that those who require treatment and care can receive
this service from the state.
Government wishes to reassure all South Africans in general, and the
Judiciary in particular, that court judgments are binding on the state and that
all state institutions will abide by court decisions. This position will not
change under any circumstances.
For further information, please contact:
Themba Maseko
Government spokesperson
Cell: 083 645 0810
Issued by: Government Communication and Information Systems
31 August 2006
