N and Others v Government Of Republic of South Africa and Others (No 1) 2006 (6) SA 543 (D)

The Facts

This case centres on challenges to providing access to anti-retroviral treatment (ARV) for prisoners. The applicants in this case were fifteen HIV/AIDS positive prisoners (and Treatment Action Campaign) - all serving prison sentences at the Westville Correctional Centre (WCC). They brought an application to the Court on12 April 2006, in which they sought the following relief:

1. The respondents be ordered to, with immediate effect, remove the restrictions that prevent them and other qualifying prisoners from accessing ARV treatments at accredited public healthcare facility.
2. The respondents be ordered to, with immediate effect, provide them with ARV treatment in accordance with the established government Operational Plan for Comprehensive HIV and AIDS Care (Operational Plan) at accredited public healthcare facility
3. That the respondents be ordered to submit to the Court within a short period of time an affidavit setting out the manner in which it will comply with the above relief being sought.

The respondents raised, inter alia, the following arguments:

1. They contested the locus standi of the applicants to seek relief on behalf of all HIV-positive prisoners at WCC. They submitted that the applicants had not identified a clearly defined group or class of persons who are not able to access ARV treatment and that no case has been made out on the papers entitling the applicants to act in the public interest.
2. They did not make the lack of resources an issue but argued that the applicants were already being taken care of under what was described as a Wellness programme. However, there was no evidence before the Court to suggest that anything substantial had been done for the applicants under this programme.
3. While not contesting the principle that a court can grant a structural interdict, the respondents argued that it was not necessary in this case because they were implementing the Operational Plan. They further argued that the issuance of structural interdicts in certain circumstances may amount to unwarranted interference with the authority and discretion of the executive arm of government. This interference, the respondents argued, would amount to a violation of the doctrine of separation of power.

The Decision

The case was heard in the Durban High Court and judgment delivered on 22 June 2006. Justice Pillay dismissed the respondents’ arguments, holding as follows:

1. What the applicants seek to do is to avoid unnecessary delays in treatment of prisoners because such delays, especially in the context of their incarceration and vulnerability, compromise their serious health status; thus “a matter of life and death”.
2. The respondents are legally and constitutionally bound to provide adequate medical treatment to prisoners who need it (section 35(2)(e) of the Constitution).
3. There is no evidence that the respondents are meeting their constitutional obligations by taking reasonable steps or measures to ensure that the applicants are receiving adequate medical treatment. The respondents have delayed without good cause in circumstances where life and death mattered.
4. It is regrettable that prisoners, being of a class, very vulnerable to infection, ere not given special consideration in the Operational Plan.
5. The respondents’ implementation of the laws and policies is unreasonable in that: it is inflexible; it is characterised by unjust and unexplained delay; and some of the steps taken by the respondents after the institution of these proceedings, in particular the manner in which the appointments were set up, are irrational.
6. Section 237 of the Constitution requires all constitutional obligations to be performed diligently and without delay. Hence, on the facts of this case, the treatment and medical care afforded to the applicants and other similarly situated prisoners at WCC is neither adequate nor reasonable in the circumstances. The respondents have fallen short of their constitutional and legislative obligations to the remaining applicants.
7. The steps that have been shown to be taken by the respondents are unworkable and characterised by delays, obstacles and restrictions which seriously compromise the health of the applicants. Therefore, an order that does not take into consideration the plight of other similarly situated prisoners at WCC will result in continued denial of access to ARV treatment for them and consequently an infringement of their constitutional rights.

The Court ordered the respondents, with immediate effect, to:

1. Remove the restrictions that prevent the qualifying prisoners from accessing ARV treatment at an accredited health facility.
2. Provide ARV treatment in accordance with the Operational Plan to the qualifying prisoners at an accredited public health facility.

In addition, the Court made a structural interdict, ordering the respondents to submit to the Court an affidavit setting out the manner in which it will comply with the above orders on or before 7 July 2006 (two weeks after the judgment).

It has taken two further court orders for the State to comply with this initial judgment. See ESR Review vol 7 no 4.