Minister of Health of the Province of the Western Cape v Goliath and Others (13741/07) [2008] ZAWCHC 41; 2009 (2) SA 248 (C) (28 July 2008)

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[2008] ZAWCHC 41
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Minister of Health of the Province of the Western Cape v Goliath and Others (13741/07) [2008] ZAWCHC 41; 2009 (2) SA 248 (C) (28 July 2008)

Reportable
in the high court of
South Africa
(cape of good hope
provincial division)
Case
No 13741/07
In
the matter between:
THE
MINISTER OF HEALTH OF THE
PROVINCE OF THE WESTERN CAPE
(Respondent in the counter-application)
and
CEDRIC
GOLIATH First Respondent (First Applicant)
Frieda
goliath
Second Respondent
*
CHRISTOPHER
ADAMS
Third Respondent
*
CORNELL
GIDEON
Fourth Respondent (
Second Applicant
)
And
in the counter-application:
THE
MINISTER OF HEALTH
Fifth Respondent
THE
MINISTER for JUSTICE and
Constitutional Development
Sixth
Respondent
SOUTH
AFRICAN SOCIAL SECURITY AGENCY
Seventh Respondent
THE
MINISTER OF SOCIAL WELFARE AND
DEVELOPMENT
Eighth Respondent
judgment
delivered: 28 july 2008
Griesel
J:
Introduction
The
respondents have been diagnosed with highly infectious extensively
drug-resistant tuberculosis (
XDR-TB
). The main question for
decision is whether their compulsory admission to and continued
isolation at the Brook­lyn Chest Hospital
(
the facility
)
is legally justifiable.
The
present application originally came before me in chambers on 28
September 2007 on the application of the Provincial Minister
of
Health (herein referred to as
the MEC
), when a rule
nisi
was issued calling upon the respon­dents to show cause on the
return day why an order in the following terms should not be
granted:
‘
2.1 Compelling
the respondents to be admitted to the Brooklyn Chest Hospital;
2.2 Authorising
the Sheriff, if necessary, to request members of the South African
Police Service to assist him in ensuring that
the respondents are
admitted to Brook­lyn Chest Hospital and remain there until
their compliance with paragraph 2.4 below;
2.3 …
2.4 Compelling
the respondents to remain at Brooklyn Chest Hospital until they have
fulfilled the criteria for negative sputum culture
conversion for
XDR tuberculosis for a period of three consecutive months;
2.5 Compelling
the respondents to adhere to the rules of behaviour for XDR
tuberculosis patients at the Brooklyn Chest Hospital.’
Further
relief aimed at the protection of the identities of the respondents
was granted as part of the order. However, the respondents
have
subsequently of their own accord revealed their identities for
purposes of these proceedings, with the result that such relief
is
no longer necessary.
In
terms of the order, the Legal Aid Board was further requested ‘to
consider providing legal representation for the respondents
to
answer this application on the return day’. Such legal
representation has indeed been provided by the Legal Aid Board and
the court is indebted to Adv
H J de Waal
of the Cape Bar
and Mr
R Bodart
of the Cape Town Justice Centre for
their capable and con­scientious assistance to the respondents
as well as the court herein.
The
MEC brings the present application in his official capacity as the
Provincial Minister of Health in the Western Cape, who must
in that
capacity
inter alia
‘provide services for the management,
prevention and control of communicable and non-communicable
diseases’.
1
He also brings the appli­cation in terms of s 38 of the
Constitution, in the public interest and in the interests of persons
who may be exposed to and contract XDR-TB from the respondents.
After
the papers were served on the respondents and they were duly
re-admitted to the facility, answering affidavits together with
a
counter-application were delivered on their behalf. (Sadly, two of
the four respon­dents originally cited – the second
and third
respondents – have suc­cumbed to the disease since the launch
of these proceedings.) In their counter-application
the respondents
joined as fifth to eighth respondents the National Minister of
Health, the Minister for Justice and Constitutional
Development
(incorrectly cited as the ‘Minister of Justice’), the South
African Social Security Agency (
SASSA
) and the Minister of
Social Welfare and Development. In their counter-application, the
first and fourth respondents seek an order
declaring their detention
to be inconsistent with their right to personal freedom as enshrined
in s 12 of the Constitution.
They also seek further declaratory
relief and a structural interdict, which will be considered in more
detail later in this judgment.
I
shall refer to the first and fourth respondents in the main
application collectively as ‘the respondents’ and to the other
respondents in the counter-application by their official
desig­nations.
XDR-TB
Tuberculosis
is an air-borne disease caused by the micro-organism
Mycobacterium
tuber­culosis.
The disease is a communicable one and, where
it affects the lungs – which happens in about 75% of cases –
then the disease may
be transmitted through infectious droplets
which are produced whenever the infected person coughs, sneezes,
spits or sings. Categories
of persons particularly susceptible to
contracting tuberculosis include children younger than 5 years;
patients who are HIV positive;
as well as patients with a range of
other conditions which affect the immune system and result in higher
suscepti­bility to
tuberculosis infection, such as,
inter
alia
, diabetics, alcoholics, patients on steroids, etc.
Tuberculosis
can be divided into drug sensitive tuberculosis and drug-resistant
tuberculosis. Multi-drug Resistant tuberculosis
(MDR-TB) is
resistant to what is known as the first line drugs, whereas XDR-TB
is an extension of MDR-TB and is resistant, in addition,
to certain
further drugs.
The principles of treatment for
MDR-TB and for XDR-TB are the same, the main difference being that
XDR-TB is associated with a much
higher mortality rate than MDR-TB
because of a reduced number of effective treatment options.
On
the undisputed medical evidence before us it is clear that XDR-TB is
a highly infectious and dangerous disease. Indeed, it
ha
s
been described as ‘a serious global health threat’.
2
Prevention and deterrence, rather than treat­ment after the
fact, is therefore of prime importance.
At
present there is no proven regimen for the treatment of XDR-TB and
no reliable data – local or otherwise – on the possi­bility
of a cure for XDR-TB. of drug-resistant TB in South Africa is
addressed through detailed ‘Policy Guidelines’, issued in July
2007 by the Director: Tuber­culosis Control in the National
Department of Health. This policy, which draws heavily from the
World Health Organisation (WHO) Guidelines, is currently
imple­mented by the Province and at the facility. With regard to

treatment of patients with XDR-TB, the Guidelines
inter alia
state
as follows:
‘
XDR-TB
patients have a much reduced chance for cure and a very high risk of
premature death; therefore, management of these cases
should be
prioritised using the same basic principles as those for MDR-TB.
XDR-TB patients
must
be hospitalized, preferably at the
MDR-TB referral centres, where additional infection control measures
such as isolation facilities
should be provided.’
3
The
facility in question is at present the only dedicated public health
facility in Cape Town that treats XDR-TB patients. It specialises
in
the treat­ment of tuberculosis and is staffed by specialist
medical practitioners skilled in the treatment of XDR-TB. The
treatment lasts for between 18 and 24 months, consisting of the
administration of a minimum of five drugs at a total cost (in

respect of the required drugs) of approximately R63 000 per
patient.
Sputum
conversion from positive to negative in XDR-TB patients is regarded
as an indication of successful treatment. Once sputum
culture
con­version has occurred for three consecutive cultures, taken
at monthly inter­vals, the patient is at minimal
risk of
transporting the disease and the disease can be managed on an
outpatient basis. (It is this minimum requirement which is
postulated in para 2.4 of the order quoted above as a necessary
pre-condition for the discharge of the respondents.)
As
appears from the policy guidelines quoted above, it is preferable
that all patients with XDR-TB should have their treatment initiated
in hospital because of the toxicity of the drugs, the monitoring and
management of side effects, and protection from indis­criminate
prescribing to avoid further and even more resistant strains of
tuber­culosis. However, the majority of XDR-TB patients –
including the present respondents – have a history of
ir­re­sponsible compliance with TB treat­ment. This
gives
rise to the dilemma as to how the objectives of the policy
guidelines are to be achieved where the patients are not willing to

submit to voluntary isolation and treatment.
Position
of the respondents
It
is common cause that the respondents have been diagnosed with XDR-TB
and are presently infectious. Further­more, it appears
to be
beyond dispute that the respondents’ contact with their families
and other members of the public creates a severe public
health risk
of infecting others with XDR-TB. In these circum­stances, the
MEC feels justified in seeking an order permitting
their continued
isolation at the facility until they are no longer infectious.
The
respondents’ attitude regarding the relief claimed is somewhat
ambivalent. They do not dispute the medical evidence nor the
risk
posed by them as infectious XDR-TB patients to others. Recognising
the risks and in an effort to obtain appropriate treatment,
all the
respondents were initially voluntarily admitted to the facility.
However, subsequent to commencing their treatment, some
of the
respondents refused to be isolated or treated for XDR-TB, and
regularly absconded from the facility.
On the
evidence before us, it is thus clear that the respondents are not
willing
voluntarily
to isolate
themselves and to prevent them spreading infection to others. The
conduct of the first respondent, in particular, has
been described
as ‘disruptive, violent and dis­respectful’. In addition,
‘
(h)e
uses abusive language to fellow patients and to the staff of the
facility. He is violent towards the security guards. …He
admits to
using cannabis and “tik” and often comes “high” to the ward,
behaving strangely and smelling of cannabis.’
The
fourth respondent, while generally being more compliant than the
first respondent, has also on occasions absconded from the
facility
and interrupted his treatment. The likely consequence of this
behaviour is not only treatment failure, but also infection
of
others.
The
respondents purport to justify their conduct on the basis of
conditions at the hospital, as well as their financial and family
respon­sibilities. Nonetheless, they appear to realise that they
cannot ask for the rule
nisi
simply to be discharged, as
‘that would be irresponsible’. At the same time, however, the
respondents contend that their detention
at the facility is
inconsistent with s 12(1) of the Constitution,
4
with the result, according to them, that the rule
nisi
cannot
be confirmed either.
Discussion
It
is undisputed that the com­pulsory isolation of the respondents
at the facility amounts to a deprivation of freedom. The
first
question for decision is whether such deprivation is ‘arbitrary’
or ‘without just cause’. In my view, the answer
must clearly be
no: isolation of patients with infectious dis­eases is
universally recognised in open and democratic societies
as a measure
that is justifiable in the protection and preservation of the health
of citizens, even though it necessarily involves
some intrusion upon
the individual liberty of the patients concerned. Thus –
Article
12 of the UN International Covenant on Civil and Political Rights
(ICCPR) permits the limitation of the right to liberty
of movement
by restrictions provided by law which are necessary,
inter alia
,
to protect public health.
Article
25 of the Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political
Rights,
5
simi­larly provides that ‘(p)ublic health may be invoked as a
ground for limiting certain rights in order to allow a state
to take
measures dealing with a serious threat to the health of the
population or individual members of the population’. Such
measures, however, ‘must be specifically aimed at preventing
disease or injury or providing care for the sick and injured.’
A
rticle
5 §1 (
e
)
of the European Convention on Human Rights (1950) provides for an
exception to the right to liberty and security of the person,
inter
alia
in respect of ‘
the
lawful detention of persons for the prevention of the spreading of
infectious diseases.’
6
Moreover,
national legislation in other open and democratic societies also
permits the isolation of patients with infectious communicable
disease. By way of example, we were referred to the Ontario Health
Protection and Promotion Act,
7
which gives broad authority to medical health officers to order a
person who is or may be infected with a communicable disease
to
‘isolate himself or herself and remain in isolation from other
persons’; other­wise ‘conduct himself or herself in
such a
manner as not to expose another person to infection’;
undergo
medical examination and submit to necessary treatments. Section
22(2) thereof provides that a medical health officer may
issue such
an order if she/he has reason and probable grounds to be believe,
inter alia
‘that a communicable disease exists or may exist
or that there is an immediate risk of outbreak of a communicable
disease’;
that such commu­nicable disease presents a risk to
the health of persons; and the require­ments specified in the
order
are ‘necessary in order to decrease or eliminate the risk to
health presented by the communicable disease’.
8
Likewise,
s 14(1) of the 1992 Constitution of Ghana provides for an
express limitation to the right to liberty
inter alia
‘in
the case of a person suffering from an infectious or contagious
disease, a person of unsound mind, a person addicted to drugs
or
alcohol or a vagrant, for the purpose of his care or treatment or
the protection of the community’.
Also
significant in this context are the provisions of Article 6 of the
African Charter on Human and Peoples’ Rights (1981/1986):
Every
individual shall have the right to liberty and to the security of
his person. No one may be deprived of his freedom except
for reasons
and conditions previously laid down by law. In particular, no one
may be arbitrarily arrested or detained.
In
the article by Singh
et al
, referred to above,
9
the authors refer to the fact that the ‘WHO recommends that
persons with MDR-TB voluntarily refrain from mixing with the general
public and from those susceptible to infection’. They proceed,
however, by stating:
‘
The
emergence of XDR-TB indicates that the WHO strategy of allowing the
patient to assume responsibility for mixing with the general
public
may be too permissive and more attention to strategies of infection
control in the community is required. In general, from
both an
ethical and legal perspective, measures that rely on voluntary
cooperation and are the least restrictive in terms of interfering
with human rights are preferred.
However, if such measures prove
to be ineffective, then more restrictive measures may need to be
contemplated.
…
The
use of involuntary detention may legitimately be countenanced as a
means to assure isolation and prevent infected individuals
possibly
spreading infection to others.
However, South African officials
have raised human rights concerns in dealing with the country's
XDR-TB and MDR-TB outbreaks, although
they have conceded that
forcible treatment may be a viable option in tackling the outbreak.
Health workers and human rights advocates
in South Africa and
elsewhere must be reminded that although a country's Bill of Rights
may bestow a range of human rights on individuals,
these rights can
usually be restricted if doing so is reasonable and justifiable.
They should be made aware of any national laws
and municipal by-laws
that permit the provision of involuntary treatment and isolation
measures in the interests of public health.’
(emphasis added)
In
the light of the authorities referred to above, it is abundantly
clear that,
in principle
, the limitation on the freedom of
move­ment of patients with infectious diseases is reasonable and
justifiable in ‘an open
and demo­cratic society based on human
dignity, equality and freedom’, as contem­plated by s 36(1)
of the Constitution.
10
The views of the authors expressed in the preceding paragraph thus
enjoy ample support in the international field. It is accordingly
clear to me that in the circumstances of this case the limitation on
the freedom of movement of the respondents as a result of
the
court’s order cannot be described as either ‘arbitrary’ or
‘without just cause’.
I
did not understand the respondents to take issue with the basic
approach outlined above. Instead, their argument tended to focus
on
the question whether the limitation sought to be imposed on the
respondents’ right to freedom of movement is permitted ‘in
terms
of a law of general appli­cation’, as required by the first
leg of the limitation clause in s 36 of the Constitution.
In
this regard, the respondents submitted that in the present state of
the law in South Africa, there is ‘no constitutionally
valid
statutory basis for the arrest and the detention of persons such as
the respondents’. I proceed to consider the basis for
that
argument.
Legal
framework
In
the applicant’s founding affidavit, the MEC relied mainly on the
provisions of s 7 of the 2003 Act as justification for
the
present application. The relevant provisions read as follows:
‘
7.
Consent
of user
– (1) Subject to section 8, a health service may not
be provided to a user without the user’s informed consent, unless
–
(a) …
(b) …
(c) provision
of a health service without informed consent is authorised in terms
of any law or a court order;
(d) failure
to treat the user, or group of people which includes the user, will
result in a serious risk to public health…’
The
respondents argue that the provisions of s 7 do not apply to
the present scenario. The issue, so they say, is not the provision
of a ‘health service’ without informed consent, but the ‘arrest
and detention’ of a person against that person’s will.
The Act
currently does not provide for a power to ‘arrest’ and ‘detain’.
It is envisaged in the Act that this question
will eventually be
dealt with by way of regulations, to be adopted in terms of s 90
of the Act relating to ‘Commu­nicable
Diseases’. However,
such regu­lations have not yet been promulgated and currently
only exist in draft form.
11
Moreover,
the ‘Regulations relating to Communicable diseases and the
Notification of Notifiable medical conditions’ published
in terms
of sections 32, 33 and 34 of the previous Health Act (‘
the 1987
regulations’
)
12
do indeed provide for the compulsory medical examination,
hospitalisation or treatment of persons suffering from a
communicable
disease referred to in Annexure I thereof, including
tuberculosis. However, so it was argued, these regulations have
become ‘practically
unworkable’ due to the repeal of large parts
of the previous Health Act.
Although
the respondents’ argument is not without some merit, I do not
agree with the basic premise on which it is based. ‘Health
services’ is defined in s 1 of the 2003 Act as –
‘
(a) health
care services, including reproductive health care and emergency
medical treatment, contemplated in section 27 of the
Constitution;
(b) basic
nutrition and basic health care services contemplated in section
28(1)(
c
) of the Constitution;
(c) medical
treatment contemplated in section 35(2)(
e
) of the
Constitution; and
(d) municipal
health services.’
Applying
a purposive approach to the provisions of s 7, read with s 1
of the 2003 Act, the concept of ‘health service’
is wide enough,
in my view, to encompass the involuntary isolation of patients with
infectious diseases at a State-funded healthcare
facility, such as
the facility in question. In the result, the respondents’ argument
in this regard cannot be accepted.
Having
said that, it is undoubtedly preferable that the full statutory and
regulatory framework be put into place and implemented
as soon as
practically possible by promulgating the draft regulations that have
been published for comment as long ago as January
this year. This
does not mean, however, that until such time as the regulatory
framework is in place, the MEC is powerless to give
effect to his
statutory duty to ‘provide services for the management, prevention
and control of communicable and non-commu­nicable
diseases’.
13
In my view, the MEC is clearly entitled to approach the court for
the necessary authorisation as contemplated by s 7 of the
2003
Act, as he has done in the present instance. If there can be any
criticism levelled against the Provincial health authorities,
it is
for the fact that their security arrangements in isolating the
respondents and other patients in similar positions have on
numerous
occasions been proved to be inadequate and ineffectual.
It
is instructive, in this context, to compare the situation pertaining
in Canada, as it appears from the facts in
Toronto (City Medical
Officer of Health) v Deakin
referred to above.
14
The respondent, a TB patient, brought a challenge in terms of the
Canadian Charter of Rights and Freedoms to the extension of his
treatment order by the medical officer of health, under a regulatory
scheme. He had consented to a four month detention and treatment
order and this was extended for a further four months in order to
control his TB. The patient argued that his continued detention
violated his constitutional liberty rights. The court accepted that
his Charter Rights were violated, but con­cluded that the
infringement was justified to protect public health and prevent the
spread of TB. It appeared from the evidence,
inter alia,
that
the patient was being detained at the facility in question
‘
in
a magnetically locked room, which has a special ventilation system
to deal with potentially contagious airborne bacteria. …Two
security guards take turns outside his door. When he is escorted
outside, on the seven daily “smoke breaks” he is physically
restrained to prevent his escape. … (He) was placed in the locked
room after two incidents where he absconded from the Centre
and
scaled a wall … in one case to go and buy a case of beer, arguably
putting community members at risk of contracting tuberculosis.
He
has also been shackled to the bed on several occasions when he
purportedly became violent and hurled items around his room.’
15
Against
this background, the court had no hesitation in granting an order
for his further detention, concluding as follows:
‘
(The
patient’s) rights under s 7 of the Charter [equivalent to
s 12(1) of our Constitution] have indeed been violated.
But
those breaches were justified. The most egregious, the shackling,
were timed to deal with outbreaks of violence. The facts
show that
the shackling was never vindictively or arbitrarily applied. …The
transcript and the evidence show that the doctors
and staff … are
handling a most difficult and challenging situation with wisdom and
sensitivity. They deserve praise. I find
the occasional use of
restraints was necessary and limited. It was motivated by the need
to protect the patient and the staff at
the facility.’
16
In
the circumstances of the present case, I am satisfied that the MEC
has made out a sufficient case for the granting of a final
order
herein. In the light of this conclusion, it is not necessary to
consider the MEC’s alternative arguments based on the common
law
doctrine of necessity or the duty of the State in terms of s 7(2)
of the Constitution to ‘respect, promote and fulfil
the rights in
the Bill of Rights’.
The
counter-application
In
their counter-application, the respondents originally claimed
wide-ranging relief in the following terms:
‘
2.1
Declaring
the arrest and detention of the First, [
Third
] and
Fourth Respondents to be inconsistent with s 12 of the
Constitution;
2.2 Declaring
that Seventh Respondent may not terminate or interrupt the payment
of any grant under the
Social Assistance Act 13 of 2004
in respect
of a person compulsorily detained in a medical facility for the
treatment of XDR Tuberculosis, if the dependants of
such a person
are unable to support themselves;
2.3 Declaring
the failure of the Applicant to promptly inform the First,
Third
and Fourth Respondents of the right to choose, and to consult with,
a legal practitioner, to be inconsistent with s 35(2)(b) of
the
Constitution;
2.4 Declaring
the failure of the Applicant to promptly inform the First,
Third
and Fourth Respondents of the right to have a legal practitioner
assigned to a detained person by the state and at state expense,
if
substantial injustice would otherwise result, and the failure by
Sixth Respondent to provide for such a legal practitioner to
be
assigned to persons such as the Respondents, if a substantial
injustice would result, to be inconsistent with s 35(2)(c) of
the
Constitution;
2.5 Declaring
the failure of the Applicant to provide First,
Third
and Fourth Respondents with conditions of detention that are
consistent with human dignity, including at least exercise and the
provision, at state expense, of adequate accommodation, nutrition
and reading material, to be inconsistent with s 35(2)(e) of the
Constitution;
2.6 Declaring
the failure of the Applicant to provide for facilities in which the
First,
Third
and Fourth Respondents can communicate
with, and be visited by, their spouses or partners, next of kin and
chosen religious counsellor
and legal representatives, to be
inconsistent with s 35(2)(f) of the Constitution;
2.7 Directing
the Applicant and Fifth to Seventh Respondents to present to this
Court, within a time period to be determined by
this Court, a plan
(“the plan”) on how they intend to rectify the failure to comply
with their constitutional obligations set
out above and directing
that the First,
Third
and Fourth Respondents may
submit comments on such a plan in a manner to be determined by this
Court.’
In
oral argument before us, the relief as originally claimed underwent
somewhat of a metamorphosis:
First,
the relief claimed under para 2.1 was abandoned in favour of a
prayer seeking an order declaring the 1987 regulations to
be
unconstitutional, but suspending the order of invalidity for a
period of three months. In my view, the abandonment of the original
prayer 2.1 was entirely justified in the light of the reasons set
out above. With regard to their amended claim, I am not persuaded
that the respondents require a declaration of constitutional
invalidity as the MEC has not sought to invoke the provisions of the
1987 regulations in order to justify the respondents’ isolation.
The
relief claimed under paras 2.3 and 2.4 was likewise abandoned and
rightly so: as a fact, the respondents have been provided
with legal
representation at state expense for purposes of opposing these
proceedings.
Third,
with regard to the relief claimed in terms of paras 2.2 and 2.5–2.7,
counsel asked that the application for such relief
be postponed for
hearing on the semi-urgent roll. In my view, this request can be
accommodated by the order that I propose to grant
herein.
Fourth,
certain additional declaratory orders were sought, declaring that –
‘
4.1 “
adequate
medical treatment” in s 35(2)(
e
)
of the Constitution includes a right for the respondents “to
receive counsel­ling regarding their medical conditions and its
consequences for themselves and others”;
4.2 the
term “adequate reading material” in s 35(2)(
e
)
includes a right for them to receive “appropriate reading material”
and an “adequate reading and recreational facility”;
4.3 section
35(2)(
f
)
includes a right to an “adequate facility in which [they] can
communicate with and be visited by their spouses or partners, next
of
kin and chosen religious counsel­lor, and consult with a legal
practitioner”.’
With
regard to the declaratory relief quoted in the preceding para­graph,
I shall accept (without deciding) that the respondents
do indeed
fall within the category of ‘everyone who is detained’ as
contemplated by s 35(2) of the Constitution. The MEC
did not
take issue with this approach, nor did he dispute that the
respondents are entitled to conditions of isolation ‘that
are
consistent with human dignity, including at least exercise and the
provision at state expense, of adequate accommo­dation,
nutrition, reading material and medical treatment’, as
contemplated by s 35(2)(
e
) of the Constitution. The MEC
points out that, prior the launching of the present application,
steps had already been taken to
improve the conditions of isolation
at the facility for XDR-TB patients. Since then a number of further
improve­ments have
been implemented, including:
the
implementation of a psycho-social rehabilitation programme;
the
appointment of further counsellors;
implementing
a further system in terms of which patients receive further written
instructions in addition to the written consent
forms signed at the
time of initiating treatment;
the
provision of newspapers and television, including satellite
television.
With
regard to counsel­ling as part of their medical treatment (para
4.1 of the counter-application), the MEC’s response is
that the
facility does indeed provide counselling for persons in the position
of the respondents. Although the new psycho-social
rehabilitation
programme has only been implemented properly in the male ward, it
will also be implemented in the female XDR ward.
The programme is
not implemented by nurses, but by social workers, occupational
therapists and adherence counsellors. The suggestion
by the
respondents that the nurses required to implement the programme have
not been appointed, is accordingly plainly wrong, according
to the
MEC.
As
for ‘adequate reading material’ and an ‘adequate reading and
recreational facility’ (para 4.2), copies of newspapers
as well as
other reading material are available in the library at the facility.
The MEC submits, however, that the right to reading
material does
not extend to tabloids, such as
Die Son
, being provided at
state expense.
Regarding
the right to facilities in which the respondents can commu­nicate
with and be visited by their spouses or partners,
next of kin and
chosen religious counsellor and legal practitioners (para 4.3),
this, again, is not disputed
on behalf of
the
MEC. Specifications for the construction of a visita­tion room
have been issued and the first meeting in respect thereof
was
planned for 27 May 2008. The tender process for the modular rooms is
under way. Contrary to the suggestion by the respondents,
the plan
for the modular recreation rooms has not been abandoned. A further
measure to improve visitation and consultation is the
ten sets of
benches and tables with a thatch covering, to be placed outside the
wards for visitation purposes.
In
short, the MEC contends that the conditions of isolation of the
respondents at the facility not only comply with, but exceed
the
require­ments of s 35(2)(
e
). There has been
significant improvement in the conditions at the facility. In the
circumstances, the MEC contends that there is
no need for the relief
sought by the respondents in respect of communication, visitation or
recreation.
With
regard to the declaratory orders sought as part of the
counter-application, it must be borne in mind that the court’s
power
to grant declara­tory relief is derived from the
provisions of s 19(1)(
a
)(iii) of the Supreme Court Act,
59 of 1959, which is substantially a re-enactment of its forerunner,
s 102 of the General
Law Amendment Act 40 of 1935.
17
It is a discretionary remedy, which will not ordinarily be granted
where there is no existing dispute between the parties regarding
the
right in contention, although the existence of a dispute is not a
prerequisite for the exercise of the power conferred on the
High
Court by the subsection.
18
As
pointed out above, the rights asserted by the respondents in paras
4.1–4.3 of the amended counter-application are neither disputed
nor denied by the MEC. A declarator in the terms sought would
therefore serve no purpose.
In
any event, before declaratory relief will be granted, the interested
persons against whom or in whose favour the declaration
will operate
must be identifiable and must have had an opportunity of being heard
in the matter.
19
This is not the position in the present case. Without attempting to
identify or limit the persons of classes of persons in respect
of
whom the declaratory relief may apply, it is clear that – at the
very least – other patients being treated in the isolation
ward of
the facility would also have a real and sub­stantial interest in
the relief claimed. The present respondents do not
purport to bring
a ‘class action’
on behalf of those patients,
or indeed on behalf of
any other interested parties. It
follows, in my view, that declaratory relief of the kind sought by
the respon­dents cannot
be granted on the present papers.
Costs
With
regard to costs, it appears that the fees of counsel for the
respon­dents will not be covered by Legal Aid to the full
extent
of his services herein. However, counsel for the MEC as well as the
National Minister gave an assurance from the Bar that
their clients
would undertake liability for the shortfall. It is sufficient, for
purposes of this judgment, simply to record such
undertaking,
without the need to make a formal order to that effect.
Conclusion
In
the circumstances, the following order is granted:
1. A
final order is issued –
(a) Compelling
the respondents to be admitted to the Brooklyn Chest Hospital;
(b) Authorising
the Sheriff, if necessary, to request members of the South African
Police Service to assist him in ensuring that
the respondents are
admitted to Brooklyn Chest Hospital and remain there until their
com­pliance with paragraph (c) below;
(c) Compelling
the respondents to remain at Brooklyn Chest Hospital until they have
fulfilled the criteria for negative sputum culture
conversion for
XDR tuberculosis for a period of three consecutive months;
(d) Compelling
the respondents to adhere to the rules of behaviour for XDR-TB
patients at the Brooklyn Chest Hospital.
2. No
order is made with regard to the counter-application, but leave is
granted to the respondents, if so advised, to renew the
counter-application, duly amplified insofar as may be necessary,
upon notice to the other parties and interested persons.
B
M Griesel
Judge of the High Court
Yekiso
J:
I agree.
N
J Yekiso
Judge of the High Court
1
In
terms of s 25(2)(
w
)
of the National Health Act 61 of 2003 (
the
2003 Act
).
Section 1 of the Act defines a ‘
communicable
disease’
to mean ‘a disease resulting from an infection due to pathogenic
agents or toxins generated by the infection, following the direct
or
indirect transmission of the agents from the source to the host’.
2
Singh
JA, Upshur R, Padayatchi N () ‘
XDR-TB
in South Africa: No Time for Denial or Com­placency’
,
published on 23 January 2007in the Public Library of Science (
PLoS
Med
4
(1)), accessible at
http://medicine.plosjournals.org
(accessed
24 July 2008).
3
Policy
Guidelines para 8.1, Record p 257.
4
‘
Everyone
has the right to freedom and security of the person, which includes
the right –
(a) not to be deprived of freedom arbitrarily or
without just cause…
’
5
Issued
by the UN Economic and Social Council.
6
See
also
Enhorn
v Sweden
56519/00 [2005] EHCHR 34 (25 January 2005) para 33.
7
R.S.O
1990.
8
See
also
Toronto
(City Medical Officer of Health) v Deakin
[2002]
O.J. No. 2777 (Ont. Crt. Just).
9
Footnote
above.
10
‘
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors…
’
11
GN
R.27, published in Government Gazette No 30681, dated 25 January
2008.
12
Published
under Government Notice No. R2438 of 30 October 1987.
13
See
footnote above.
14
Footnote
above.
15
Paras
19 and 21 of the judgment.
16
Para
31.
17
Erasmus
Superior
Court Practice
(1994 with loose-leaf updates, Service 29) at A1-33. See also
Family
Benefit Friendly Society v CIR
1995 (4) SA 120
(T) at 124D–126E.
18
Ex
parte Nell
1963
(1) SA 754
(A) at 760B. See also
Cordiant
Trading CC v Daimler Chrysler Financial Services
2005
(6) SA (SCA) para 16 and the authorities referred to in that
paragraph.
19
Family
Benefit Friendly Society
case at 125J.