This morning, Judge Brian Southwood dismissed Minister Balfour's application for leave to appeal against the decision by the Northern Gauteng High Court ordering that TAC and ALP be given access to the report of the Judicial Inspectorate of Prisons (JIOP) regarding the death of prisoner ‘MM'. MM died in a Westville prison after having been denied access to ARVs. Justice Southwood described the Minister's application for leave to appeal as ill-conceived, and ordered the government to pay the legal costs incurred by TAC and ALP.

The JIOP report had already been released to the public (see here) in the wake of Judge Southwood's earlier order. TAC and ALP believes that Balfour's application for leave to appeal that order was a shameful waste of public funds. Balfour's counsel, Adv. Moerane, explained Balfour's motivation in seeking leave to appeal - notwithstanding the fact that the report had already been released - as being to refute allegation he had lied about the report.

TAC and ALP welcome Judge Southwood's decision. The South African judiciary continues to uphold constitutional democracy and remedy abuses of public office by politicians like Minister Balfour.

Background

MM was an applicant in the case of the inmates at Westville Prison (2006) who could not access ARV treatment. He was initiated onto antiretroviral therapy after the case was launched, and a full 32 months after he had initially qualified for treatment. This was uncovered by TAC in a careful study of his medical records by an independent physician. TAC then demanded that the JIOP investigate culpability for his death and the deaths of over 100 inmates at Westville Prison in 2005.

The report was completed and, according to the law, had to be submitted to Minister Balfour. He denied TAC and the ALP access to the report after countless requests and a lawful access to information request. An application was made to the High Court for the report.

In his judgment of 30 January 2009[2], Justice Southwood harshly rebuked the Minister for effectively forcing TAC to litigate. In ordering the MM report to be provided to TAC, Southwood commented on the shameful manner in which Minister Balfour and his department had handled the request for the document.

He awarded punitive costs against Minister Balfour. The report was then given to TAC and the ALP. Judge Nathan Erasmus's report is little more than an apology for the Department of Correctional Services, and failed to comply with standards of gathering independent medical evidence. Regrettably, it appears that Judge Erasmus failed to uphold the independence of the JIOP at the expense of MM and inmates who are genuinely ill and dying.]

JIOP report and findings

On 10 February 2009, ALP received a copy of the MM report from the JIOP. Despite being requested by TAC to "investigate culpability in the death of ‘MM'"[3] and more than 100 inmates of Westville Correctional Services.

In the tradition of apartheid inquest magistrates, Inspecting Judge Nathan Erasmus relied almost exclusively on an in-house "investigation" conducted by the DCS.  Most disturbingly, there is no evidence in his report to suggest that he consulted any independent experts to evaluate the circumstances surrounding MM's death.  In considering why it took 32 months for MM to be initiated on ART, the former inspecting judge appears to have relied largely - if not exclusively - on explanations provided by DCS and its officials. He failed to even mention the other 100 inmates.

Justice Erasmus's report held no one in the DCS to account.  Instead, some blame is apportioned to McCords Hospital, a not-for-profit private institution that assists the state by putting public sector patients onto ART.  Without providing details of evidence to support his conclusion that McCords was "supposed to treat [MM]", and regardless of the fact that the facility is not a designated public sector site, Justice Erasmus nevertheless refers to it as the "designated hospital".  

Despite numerous other failings, the report concludes with four important recommendations:

• HIV/AIDS in prisons must be addressed as a matter of urgency;
• Government agencies and departments must co-operate with and assist DCS to deal with HIV/AIDS in prisons;
• Access to ARV treatment and HIV testing services in prisons must be promoted as a matter of urgency;
• Medical parole provisions are not working and should be revisited.

TAC and the ALP welcome such recommendations and demand that they be taken into consideration by the DCS.

[1] We use the initials MM in order to protect the privacy of his family

[2] Treatment Action Campaign v Minister of Correctional Services and Another (18379/2008) [2009] ZAGPHC 10 (30 January 2009)

[3] Annexure AA2 to the founding affidavit at paragraph 1

Statement issued by the Treatment Action Campaign and AIDS Law Project March 13 2009