Media release

Government position on powers of judiciary and provision of ARVs to prisoners at Durban-Westville Correctional Centre

31 August 2006

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 the Government does not respect the decisions of the Courts. The Government wishes to clarify its position in this regard.

The Government of the Republic 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 judgement. Therefore, there is no constitutional crises 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 ARV's 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 counselors were appointed to provide counseling 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 judgement 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 these steps that were taken regarding expansion of ARV provision to prisoners.

Government has and continues to take steps to expand access to ARV's 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 centers 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 ARV's 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 ARV's 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 re-assure 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.

Themba Maseko

Issued by: Government Communications (GCIS)


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