On 28 August 2012, the Constitutional Court heard argument in a case that will have major implications for public health and human rights. This case goes to the core of what it means to be human and humane in a TB pandemic that is taking more South African lives than any other cause.

In the Cape Town suburb of Tokai is Pollsmoor Prison, one of South Africa’s largest correctional facilities. Pollsmoor consists of five correctional centres, a great hulk of clipped buildings laid out in rows and cut by straight roads like a well-planned city.

66-year-old Dudley Lee entered Pollsmoor in April 2000, charged with fraud, counterfeiting and money laundering amongst other things. The communal cells in which he was placed were at over 200% occupancy. 40 to 60 men crowded on top of one another in each unit. The men were confined to these areas for up to 23 hours a day with little room to move. Lee’s cell was so filthy that he sat on his clothes throughout the night to avoid touching the surfaces. Sunlight and ventilation were scarce, and smoke poured from cigarettes. A man coughed. Another sneezed. A third spat on the ground. The men breathed and rebreathed the air and awaited their trials.

Dudley Lee was healthy when he went into Pollsmoor. In June 2003, he was diagnosed with pulmonary TB. In September 2004—over four years after entering prison—he was acquitted of the charges against him and released. He then sued the Minister of Correctional Services in the Western Cape High Court in Cape Town for negligently causing him to become infected with TB.

Thus began Lee’s struggle against the Department of Correctional Services. His legal journey took him through three courts over seven years. The litigation has unearthed disturbing truths about the state of health in South Africa’s prisons and how it could affect the health of all South Africans.

Inhuman conditions

Conditions in Pollsmoor deteriorated over a number of years. In the late nineties medical staff working in the facility began to panic. They wrote to prison authorities describing the collapse of the Pollsmoor health care programme, detailing the risk to health and to their ability to care for patients. Frans Muller, a nurse at Pollsmoor for ten years, wrote a letter to prison authorities in 2000 in which he warned, “We are sitting on a time bomb. Please let us avoid the explosion”.

In 2001, Muller sent another report to the authorities pointing out that the “critical shortage of nursing personnel” left the medical staff to cope with “an enormous workload under difficult conditions”. He further noted that the “massive overcrowding increases the pressure on our nursing staff and aggravates the poor conditions under which our inmates are detained”.

The Department ignored Muller’s warnings.

A little over a decade later, a team of academics led by TB and HIV expert Professor Robin Wood of the Desmond Tutu HIV Centre modelled how the conditions of detention at Pollsmoor affect TB transmission.* The findings were shocking. Wood and his colleagues showed that conditions in Pollsmoor are ideal for the spread of TB, including drug-resistant strains, and result in transmission risks of approximately 90% per annum. In other words, if 100 people go into Pollsmoor prison for a year, 90 of them will probably contract TB.

The Pollsmoor study also revealed that implementing the cell occupancy standards required by South African prison regulations alone would reduce the likelihood of transmission by 30%. Implementing active TB case finding, as required by law even when Dudley Lee was imprisoned, and combining this with national cell occupancy standards would reduce transmission probabilities by 50%. Finally, implementing active case finding along with international recommendations for cell occupancy would reduce transmission probabilities by a whopping 94%.

When Professor Wood discusses these findings with me he covers a lot of ground in a short time. In the space of just a few minutes he quotes Dostoevsky and explains the basic epidemiology of TB. Wood describes the overcrowding at Pollsmoor, flashing a slide of a communal cell. The image shows men lying on their sides curved into one another in long rows, an occasional sliver of ground visible between two sets of legs like a bulging seam that holds the men together.

Wood outlines simple ways to deal with the TB problem. Increase ventilation by opening cell ventilator grills and using barred instead of solid doors. Let the prisoners outside for longer periods. Test them for TB when they first come to Pollsmoor and actively seek out inmates with symptoms of infection. When you find infectious patients, treat them.

* Read more about the findings of Wood and his colleagues.

An ancient disease

TB is the world’s oldest known disease. In 500 BC, the Greek physician Hippocrates, who is known as the founder of western medicine, called it the most prevalent disease of his time. The resilience of TB frustrates scientists. Essentially, the bacterium is protected by a tough outer membrane, which makes killing the pathogen difficult. Professor Valerie Mizrahi, Director of the Molecular Mycobacteriology Research Unit at the University of Cape Town, describes it as “a real tough bastard of a bacteria”.

South Africa has one of the highest incidence rates in the world. TB is the number one cause of death of South Africans—by a long shot—and has been for many years.

HIV co-infection and the increasing prevalence of drug-resistant TB, which can be incurable, compound the problem. In many cases treatment for drug-resistant TB takes two or more years. It costs a fortune, can involve long periods of isolation and is brutal on the body. For some patients treatment can even lead to permanent deafness, amongst other serious side effects.

Infection with drug-resistant strains occurs in one of two ways. A person can be infected with drug-susceptible TB, which can then develop into drug-resistant TB. This often happens due to treatment default. Also, drug-resistant TB can be transmitted directly from one person to another. Given that prison conditions are ideal for the spread of infection and that health care is at best sporadic, without serious intervention these institutions are likely to be the wind beneath the rise of drug-resistant TB.

What is more, TB is an airborne communicable disease. The TB that spreads in prison does not stay in prison. Guards, visitors and released detainees carry the bacteria back to their families and communities. Therefore, in order to combat TB effectively in the general population, we must also address it in the prison population.

Prisoners have rights

Prisoners and detainees awaiting trial are endowed with rights enshrined in the Constitution of South Africa. These rights include the right of access to health care services and medical treatment, the right to be detained in conditions consistent with dignity and the right to a public trial in court. In a nation in which not long ago many great visionaries, artists and leaders were jailed for their beliefs, these rights hold special significance.

Moreover, those people at highest risk of TB infection are detainees awaiting trial—people who have not yet had their day in court. The law assigns them the status of “presumed innocent”. This, then, is the question we must ask: what standard of care do we owe people when we take their freedom but have not yet determined if they are guilty of a crime?

From prison to court

Dudley Lee won his case in the High Court. The court was plain in its condemnation of the Department of Correctional Services, writing that the Minister had provided no evidence that he took “any steps whatsoever to guard against the spread of TB”. The Minister then appealed to the Supreme Court of Appeal (SCA).

The SCA seemed to recognise the weight of the matter. The judge observed, “Prisoners are amongst the most vulnerable in our society to the failure of the state to meet its constitutional and statutory obligations. It seems to me that there is every reason why the law should recognise a claim for damages to vindicate their rights. To find otherwise would altogether negate those rights.”

The judge also agreed with the High Court that the Minister had failed in his duties. “…[T]o the extent that any system existed at all for the proper management of the disease its application in practice was at best sporadic and in at least some respects effectively non-existent.”

The SCA even reproached the state for litigating the way it had, saying that it had contested “the allegations of an inadequate health-care regime when it must have known that it was defending the indefensible … By adopting that approach the state forced Mr Lee into a trial that endured for about three weeks, in which he was compelled to take up the time of professional men to prove what was incontestable”.

In spite of these statements, the SCA found against Lee, who then appealed to the Constitutional Court.

Why the SCA ruled against Lee

To understand why Lee lost in the SCA requires a basic grasp of an area of law known as “delict”. The typical delict case involves a person or entity—in this case the Department of Correctional Services—that has done something wrong, or failed to do its duty, and thereby harmed another person or entity.

The most common delictual claim is a car wreck. For example: Andy fails to stop his car at a red robot and hits Betty’s car, denting her car door. Betty sues Andy for the cost of repairing the dent. Betty’s claim against Andy is a delictual claim.

To win a delictual claim one must prove certain “elements”. Most commonly, these are described as: wrongfulness, fault, causation and damages.

“Wrongfulness” refers to a legal obligation to either do or not do something. In the above example, Andy acted wrongfully by not stopping at the red traffic light.

“Being at fault” refers to a failure to comply with the obligation to either do or not do something. In the above example, Andy’s failure to stop at the red robot meant he was at fault.

“Causation” is the element of a delictual claim that was at issue when Lee’s case went to the Constitutional Court. To prove causation you must demonstrate that the wrongful action resulted in, or caused, the harm. Typically, in order to prove this, a court will apply the “but for” test. In the above example, a court would ask whether it is more probable than not that “but for” Andy having run the red robot Betty’s car would not have been damaged?

“Damages” simply refers to the monetary value required to compensate for the harm suffered. In the above example, the damages would be how much it costs to fix the dent in Betty’s car door. If Betty was injured the damages might include hospital bills as well. In Lee’s case, the harm is TB infection and the damages would be the monetary value that a court determines is necessary to compensate him for being infected with TB.

The SCA found that Lee had proven each of these elements except for “causation”. The Court identified two ways in which he could have proven the causation element.

First, he could have identified the source of his infection and shown a causal connection between it and some specific negligence or omission on the part of prison authorities.

Lee’s second option would have been to show that he would not have been infected with TB if the prison authorities had done everything they were supposed to have done. In other words, Lee would have had to prove that there would have been a zero percent chance of contracting TB “but for” the prison authorities’ negligence.

In the context of TB in prison, both of these methods of proving causation are unrealistic. The first is unrealistic simply because it asks Lee to do the impossible given the limits of science. TB diagnostics do not make it possible to isolate a source of infection and connect it to a specific act of negligence.

To the highest court in the land

The Treatment Action Campaign, Wits Justice Project (WJP) and the Centre for Applied Legal Studies (CALS), represented by SECTION27, joined Lee’s case in the Constitutional Court as amici curiae (friends of the court) in part to bring the above information before the Court. The amici asked the Court to accept evidence in the form of an affidavit from Robin Wood which established that it is not scientifically possible to prove the source of a TB infection for the SCA’s purposes.

Wood’s affadavit also showed that the SCA’s second option for proving causation is equally implausible. One cannot prove that there would be a zero percent chance of contracting TB if the prison authorities fulfilled their duties. Indeed, the legal duty on prison authorities does not intend to altogether eliminate the risk of infection. This was acknowledged by the SCA itself when it wrote, “ … whatever management strategies might be put into place, there will always be a risk of contagion”.

Thus, the SCA effectively cancelled the possibility of a remedy in this type of case, leaving Lee and others like him without compensation despite the violation of their rights. The SCA ruling also means that the Department of Correctional Services can continue to disregard its obligations. Meanwhile, the lack of incentive to tackle TB in prisons will also have serious consequences for public health.

The constitution requires that common law be developed in order to “promote the spirit, purport and objects of the Bill of Rights”. If any circumstances called for it, these are they. TAC, WJP and CALS argued in the Consitutional Court that justice requires the law to be developed in this case in order to give effect to rights specified in the Bill of Rights.

During the hearings on 28 August, the amici drew the Court’s attention to the fact that courts around the world had grappled with this question in similar situations. For example, in the United Kingdom the use of asbestos in construction led to workers contracting a hideous disease called mesothelioma. However, workers who sued their employers could not prove that they had contracted mesothelioma due to asbestos exposure at one place of employment or another or even from the environment. Thus, the workers were unable to meet the “but for” test. The courts decided that justice required an adaptation of the test in those circumstances. They ruled that in mesothelioma cases, it was enough to show that the employer’s negligence increased the risk of contracting the disease. Courts in many countries have taken a comparable approach when faced with similar facts. The amici argued that the Constitutional Court should do the same in the case of Dudley Lee.

By arguing this point to the Court, these organisations are also asking a broader question of South Africa. In the birthplace of one of humanity’s greatest accomplishments, the Constitution of the Republic of South Africa, what kind of country should our prisons reflect? How does the nation’s long legacy of resistance relate to the way South Africa treats those whose freedom it sees fit to deny?

Dudley Lee now lives on the breadline in an old age home in Cape Town. He has received no compensation from the state. Today, Pollsmoor is much the same as it was when Mandela was transferred out in 1988 or when Lee was released in 2004.

On 28 August, the Constitutional Court heard argument in Lee’s case that will have serious consequences not only for him, but for human rights, public health and prisoners across the country. We now await a judgment from the Court.

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The National Strategic Plan on TB in prisons:

“Certain populations are at higher risk of TB infection and re-infection, including … prisoners [and] prison officers and household contacts of confirmed TB patients…. These groups are considered key populations for TB.”

Certain groups should be prioritised for TB services including “correctional services staff and inmates….people living…in poorly ventilated and overcrowded environments”.

“Respiratory infection control should…be prioritised in prisons.”

“Annual risk-assessments should be carried out and 90% of high-risk institutions [including prisons] should achieve a basic infection control standard.”

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We will report on this judgment in a future issue of NSP Review.

By John Stephens, a researcher with SECTION27.

Sources: Johnstone-Robertson S, Lawn S, Welte A, Bekker LG, Wood R, ‘Tuberculosis in a South African prison – a transmission modelling analysis.’ South African Medical Journal, Vol 101, No 11 (2011). http://www.samj.org.za/index.php/samj/article/view/5043; Lee v Minister of Correctional Services (10416/04) [2011] ZAWCHC 13; 2011 (6) SA 564 (WCC); 2011 (2) SACR 603 (WCC) (1 February 2011); Minister of Correctional Services v Lee (316/11) [2012] ZASCA 23; 2012 (1) SACR 492 (SCA); 2012 (3) SA 617 (SCA) (23 March 2012)