HIV & TB Response

Landmark judgment handed down by the Constitutional Court on the management of tuberculosis in prisons

Today, the Constitutional Court overturned a ruling of the Supreme Court of Appeal (SCA) in the matter of Dudley Lee vs. the Minister of Correctional Services.

This is a landmark case that highlights the State’s responsibility for ensuring that the constitutional rights of detainees are maintained and safeguarded. The Court described the judgment as “of importance, not only to the parties, but also to other inmates and the health sector generally.  The judgment also upholds the right to a remedy for individuals in the position of Lee.

 The majority of the Court found that the Department of Correctional Services (DCS) negligently caused Dudley Lee to become infected with tuberculosis (TB) while it detained Lee in Pollsmoor prison from 1999 to 2004. The Court therefore held that the DCS should be liable to Lee.

 After several years of incarceration, Lee was eventually acquitted of the charges against him and released.  Lee then sued the Minister for negligence in the Western Cape High Court. This court ruled that DCS was liable for the damages suffered by Lee as a result of TB as the Department had violated its own health regulations, failed to perform its constitutional obligations and violated Lee’s constitutional rights.

 The SCA, however, overturned that decision. It admitted that the State was negligent in fighting TB in Pollsmoor, but claimed that Lee could not prove that this negligence caused his infection.

 In overturning the SCA ruling, the Constitutional Court said the test for causation had been applied too rigidly by the SCA and that Lee had, in fact, sufficiently proven that he contracted TB as a result of the DCS’s negligence. In reaching this conclusion, the Court stressed the importance of flexibility in determining issues of causation.

 The Court reasoned:

 “I stress that on the approach adopted by the Supreme Court of Appeal it is unlikely that any inmate will ever be able to overcome the hurdle of causation and further, no effective alternative remedy will be available to a person in the position of the applicant.”

 It also confirmed that:

 “It is indeed so that prisoners are amongst the most vulnerable in our society to the failure of the state to meet its constitutional and statutory obligations.To suggest otherwise, in circumstances where a legal duty exists to protect Lee and others similarly placed, will fail to give effect to their rights to human dignity, bodily integrity and the right to be detained in conditions that are consistent with human dignity under the Constitution, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, and medical treatment.”

 It therefore held that Lee had proven his case.It ordered the Western Cape High Court to consider how much compensation should be paid to Lee.

 On 6 August 2012, the Wits Justice Project, Centre for Applied Legal Studies, and Treatment Action Campaign, represented by SECTION27, were admitted as amici curiae (friends of the court)in the matter. In its judgement today the Court emphasised that the amici’s “written submissions have been most helpful and for we are grateful”.

 In the absence of adherence to known protocols and procedures, TB and HIV will continue to spread through our prisons and to the rest of society. The need for properly ventilated cells needs to be enforced, as does the need to find solutions to the chronic overcrowding in our prisons.

 Today’s judgment is a major step forward for campaigns to ensure that prisoners’ rights to healthcare and dignity are respected, including through adequate measures to prevent and treat tuberculosis.

 We applaud and congratulate Lee and the Court. We also thank Advocate Adila Hassim for her work in this ground-breaking case.

 We also call on the DCS to take immediate steps to remedy the horrendous conditions to which prisoners and awaiting trial detainees are subjected. The Court has been clear that this is the State’s duty and that the State has failed in that duty. It has also been clear that the State must be held accountable for that failure. The DCS must take swift, certain steps to fulfil its duty. This is a matter of the utmost importance for human rights and public health.

 The full judgment is available at:

 We will study the judgment further and provide a more detailed analysis in the near future.


For further comments please contact

Wits Justice Project: Nooshin Erfani-Ghadimi on or 084-283-1445

Centre for Applied Legal Studies: Kathleen Hardy on or 082-556-5196

TAC: Lihle Dlamini on or 073-318-9320

SECTION27: John Stephens on or 073-077-5779