Lee v Minister of Correctional Services (10416/04) [2011] ZAWCHC 13; 2011 (6) SA 564 (WCC); 2011 (2) SACR 603 (WCC) (1 February 2011)

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[2011] ZAWCHC 13
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Lee v Minister of Correctional Services (10416/04) [2011] ZAWCHC 13; 2011 (6) SA 564 (WCC); 2011 (2) SACR 603 (WCC) (1 February 2011)

REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 10416/04
In the matter between:
DUDLEY LEE
….................................................................................................
Plaintiff
and
THE
MINISTER OF CORRECTIONAL SERVICES
…...........................................
Defendant
JUDGMENT
DE
SWARDT, A J
:
[1.] Pollsmoor Prison
('Pollsmoor'), as it is commonly known, is in fact a prison complex
consisting of five different prisons :
the admissions centre which is
also known as the maximum security prison, the women's prison, the
juvenile prison and the medium
security prisons B and C for sentenced
prisoners.
[2.] The
plaintiff was detained in the maximum security prison for a period of
approximately 4
1
/2
years
from November 1999 to 27 September 2004 while he was on trial in the
Regional Court (he was temporarily out on bail from January
to April
2000). In June 2003, whilst he was incarcerated, he became ill and
was diagnosed as suffering from pulmonary tuberculosis
('TB'). After
the plaintiff's release from prison, pursuant to his acquittal on the
criminal charges which had been preferred against
him, the plaintiff
instituted an action for damages against the defendant on the basis
that the defendant's servants at the prison
had by their conduct,
whether acting
dolus
eventualis
or
negligently, caused him to become infected with TB. By agreement
between the parties and in terms of Uniform Rule 33(4) the Court

granted an Order that the merits of the plaintiff's claim were to be
adjudicated upon separately, prior to the quantum of the plaintiff's

alleged damages being dealt with.
[3.] The plaintiff was
represented in the action by Mr I J Trengove, acting on instructions
of Mr J C Cohen of attorneys Jonathan
Cohen & Associates. The
Defendant was represented by Mr I Jamie S C, assisted by Ms D Pillay,
acting on instructions of Mr
C J Benkenstein of the State Attorney.
[4.] The trial of the matter ran
for a period of some 21 days from 2 to 10 December 2009 and from 1 to
25 February 2010. Argument
was heard on 16 March 2010. The evidence
and disputes between the parties will be dealt with herein as
comprehensively, but succinctly,
as is possible. The fact that a
particular aspect of evidence or argument which was raised, is not
dealt with expressly, however,
does not mean that it has not been
considered.
The Issues on the Pleadings
[5.] The
Plaintiff alleged that the responsible authorities were employees of
the State and of the Department of Correctional Services
('DCS'), who
acted within the course and scope of their employment. The defendant,
in his plea,
inter
alia,
admitted
responsibility for the control and management of the correctional
facility where the plaintiff was detained, that he was
responsible
for the accommodation and management of all prisoners and that he was
the employer of the persons who treated the plaintiff
from about 23
November 1999 until 27 September 2004. Defendant, however, averred
that the management of the prison and its inmates,
inclusive of the
policies which were applicable at the time, was conducted within the
ambit of the
Correctional Services Act 111 of 1998
and of the
Constitution.
[6.] In terms of his amended
Particulars of Claim, the plaintiff formulated his claim (as far as
the merits are concerned) as follows:-
7. During
the
period of the Plaintiff's imprisonment:
7.1.
It was common for prisoners in the prison, including the Plaintiff,
to be congregated in close proximity to one another and
to be housed
in mass cells;
7.2
A considerable proportion of prisoners in the prison were actively
infected with tuberculosis;
7.3
It was consequently inevitable that some of the prisoners actively
infected with tuberculosis would infect non-infected prisoners
in
close proximity to them with tuberculosis.
8.
During the period of the Plaintiff's imprisonment the responsible
authorities were aware of the presence of tuberculosis in the
prison
and of the concomitant risk of non-infected prisoners being actively
infected therewith, should infected prisoners come
into and/or remain
in close proximity with them.
9.
During the period of the Plaintiff's imprisonment the responsible
authorities could have:
9.1.
Eliminated or curtailed the spread of tuberculosis by creating
conditions in the prison which made it impossible or difficult
for
tuberculosis to be spread;
9.2.
Avoided or minimised the risk of infection with tuberculosis by:
9.2.1.
separating actively infected prisoners from non-infected prisoners;
9.2.2.
Regular and effective checkups of prisoners to determine whether or
not they were actively infected with tuberculosis, and
if so, by
providing regular and effective treatment for the control and
elimination of the disease.
10.
During
the period of the Plaintiff's imprisonment the responsible
authorities failed to take any or adequate steps:
10.1.
To eliminate or curtail the spread of tuberculosis; or
10.2.
To avoid or to minimise the risk of infection with tuberculosis.
11.
During
the period of the Plaintiff's imprisonment the responsible
authorities instead:
11.1.
Failed to act and ignored (sic) and allowed tuberculosis to be spread
amongst prisoners unabated; and
11.2.
Failed to adhere to the requests of prisoners for proper and/or
adequate treatment to prevent and/or treat and/or cure those
actively
infected or potentially actively infected with tuberculosis.
12.
The failure on the part of the responsible authorities to act as
aforesaid was not necessary for the achievement of any of the

purposes for which they were vested with their powers of control and
management of the prison;
13.
Throughout the period of the plaintiff's imprisonment:
13.1.
He was incarcerated in cells with more than one prisoner;
13.2.
It was always likely that he would become infected with tuberculosis
by actively infected prisoners;
13.3.
He was consequently at risk of tuberculosis infection;
13.4.
He remained in constant close proximity to prisoners actively
infected with tuberculosis;
13.5.
He was not specifically aware which prisoners were actively infected
with tuberculosis;
14.
During the period of the Plaintiff's imprisonment he became infected
with tuberculosis. The Plaintiff does not know when this
happened but
became aware of it during or about June 2003.
15.
During the period of the Plaintiff's imprisonment the responsible
authorities:
15.1
Failed to take any or adequate steps to protect the Plaintiff against
the risk of tuberculosis infection;
15.2.
Failed, once the Plaintiff had been diagnosed as actively Infected
with tuberculosis, to provide the Plaintiff with adequate
medical
treatment and/or medication to cure and/or prevent the further spread
thereof;
15.3.
Failed to adhere to the Plaintiff's numerous requests for adequate
treatment for the cure of and/or prevention of the further
spread of
the tuberculosis with which he had become contaminated.
16.
The
conduct of the responsible authorities was unlawful in that:
16.1.
The conduct of the responsible authorities during the period fo the
Plaintiff's imprisonment violated the Plaintiff's rights
described
below, at common law, under the Correctional Services Act 8 of 1959
("the Act") and under the Constitution.
16.2.
Their conduct violated his common law rights to respect for and
protection of his physical integrity during his imprisonment;
16.3.
Their conduct violated his rights implied by the Act and
particularly, Sections 2(2)a (sic), 2(2)b (sic), 23(2), 69(a) and

79(1)e (sic) thereof to respect for and protection of his physical
integrity during his imprisonment.
[These
provisions of the said Act were still applicable until 31 July 2004
when the provisions of the new
Correctional Services Act No 111 of
1998
with regard to the treatment of prisoners came into operation.]
16.4.
Their conduct violated his rights under the constitution (sic) and
particularly, the following:
16.4.1.
His rights in terms of
Section 35(2)e
(sic) thereof to be detained
under conditions consistent with human dignity, and to be provided
with adequate accommodation, nutrition
and medical treatment at state
expense;
16.4.2.
His rights in terms of
Section 12(1)
thereof to freedom and security
of the person;
16.4.3.
His rights in terms of
Section 12(1)(d)
and (e) thereof not to be
subjected to torture of any kind, whether physical, mental or
emotional, and not to be subjected to cruel,
inhuman or degrading
treatment or punishment;
16.4.4.
His right to life, in terms of
Section 11
thereof;
16.4.5.
His right in terms of
Section 10
thereof to respect for and
protection of his dignity.
17.
The responsible authorities knew during the period of the plaintiff's
imprisonment that their conduct placed prisoners at risk
of
tuberculosis infection and, in the premises, they acted as they did
dolus eventualis,
alternatively
negligently.
18.
But for the conduct of the responsible authorities:
18.1.
The Plaintiff would not have been exposed to prisoners actively
infected with tuberculosis;
18.2.
The Plaintiff would have had access to and sought proper treatment of
active infection by (sic) tuberculosis;
18.3.
The Plaintiff would not have become actively infected with
tuberculosis;
18.4.
The Plaintiff's active tuberculosis infection would have been treated
and cured earlier;
19.
In the premises, the conduct of the responsible authorities caused
the plaintiff's active infection with tuberculosis.'
[7.]
Defendant denied the aforegoing allegations made by the plaintiff in
his Particulars of Claim and denied, in particular,
that he or his
employees, or persons or legal entities representing him, acted
unlawfully, committed any negligent acts or omissions,
or breached
any statutory and/or common law duty vis-a-vis the plaintiff. In his
plea, the defendant denied
the
allegations of widespread tuberculosis infection and spread of
tuberculosis amongst prisoners'
and
alleged,
inter
alia,
that:
'5.1.1
In compliance with the provisions of the Act and the Constitutional
framework, Defendant is responsible for the accommodation
and
management of all prisoners.
[The
Act referred to by Defendant is the new
Correctional Services Act No
111 of 1998
]
5.1.2.
Defendant provides primary health care services in line with the
requirements of the National Department of Health.
5.1.3.
In administering, controlling and minimising the general risk of
tuberculosis infection, Defendant utilises the national
health
policy and treatment guidelines issued by the relevant health
authorities.
5.1.4.
Defendant's health and medical policies, procedures and
implementation strategies are in full compliance with the National

Tuberculosis Control Programme.
5.1.5.
At all material times, prisoners, including Plaintiff, who exhibit
symptoms of tuberculosis infection and/or are diagnosed
with
tuberculosis infection, are henceforth confined and treated within
the medical units of the correctional facility until
the period of
such infectivity elapses.
…
..........
6.1.2.
At all material times Defendant provides and dispenses medical
treatment to prisoners in accordance with the provisions
of the Act
and Constitution.
6.1.3.
In dealing with tuberculosis specifically Defendant implements the
National Tuberculosis Control Programme, and utilises
the following
procedures and policies in minimising the risks of tuberculosis
infection and preventing further proliferation:
6.1.3.1.
Defendant
pleads
that
early detection or diagnosis of tuberculosis occurs when prisoners
show or display symptoms of the (sic) active tuberculosis.
6.1.3.2.
Following upon the diagnosis of tuberculosis infection, the prisoner
is immediately quarantined in the medical unit,
away from other
prisoners, and a treatment phase commences.
6.1.3.3.
Medical officers in control of the medical units within the
correctional facility monitor and treat infected prisoners
during
the isolation period and the treatment phase.
6.1.3.4.
Prisoners are sent to the normal prison units and/or communal area
once the customary period of risk of infection to
other prisoners
has passed.
6.2
Defendant pleads that at all material times hereto Defendant and/or
Defendant's employees utilise (sic) all reasonable care
and
diligence in implementing relevant health procedures and policies,
including abiding by the national health procedures and
policies, in
order to minimise the risk of infection and proliferation of
tuberculosis amongst prisoners.
…
..................
7.1.4.
Plaintiff was diagnosed with tuberculosis on or about 10 June 2003 .
7.1.5.
Plaintiff was confined to the medical unit and began tuberculosis
treatment on the same day. The abovementioned medical
section is
separate and generally isolated from other prison sections and
general comm unal areas.
7.1.6.
The tuberculosis treatment was successfully completed within six
months of commencement. Plaintiff responded to all treatment
and
various sputum tests conducted after completion of Plaintiff's
treatment yielded negative results for tuberculosis infection.
7.1.7.
Defendant pleads that it utilised all reasonable care and diligence
during Plaintiff's imprisonment and in the diagnosis
and treatment
of the plaintiff's tuberculosis infection.'
The Nature and Treatment of
TB
[8.] It was
common cause between the parties' respective experts that TB is a
contagious infection which is caused by an airborne
bacterium,
mycobacterium
tuberculosis.
It
is a disease which has been a serious public health problem for
hundreds of years. It is found world wide, although it appears
to be
more common in developing countries such as, for example, South
Africa, where the majority of the population tends to be
poor and
tends to live in crowded conditions that are conducive to the spread
of the disease. Indeed, South Africa appears to
have one of the
highest incidence rates of TB in the world.
[9.] A person who is actively
ill with the disease is able to transmit the disease, because
bacteria would be expelled from the
body during sneezing, coughing,
or spitting. The bacterium is vulnerable to sunlight and fresh air,
but if it is expelled in
a closed environment such as, for example,
by someone coughing in a poorly ventilated room, it can drift around
for hours. Similarly,
if phlegm is spat onto the ground and is not
cleaned by means of special anti­bacterial antiseptics in
circumstances where
there is a lack of sunlight and a good draught
of air, it could remain infective for an extended period of time.
Some persons
who are ill with TB shed more bacteria than others and
are known as 'super shedders'.
[10.] Not every person who has
been exposed to the TB-bacterium becomes ill with the disease.
Indeed, if a person is exposed to
the bacterium, one of three things
may happen: (1) the body's immune system may destroy the bacterium,
in which event there will
subsequently be no sign that the person
was ever exposed to it; (2) the body's immune system could wall off
the bacterium in
a tiny piece of scar tissue, referred to as a
granuloma. In such event, the bacterium would remain dormant and the
person would
not be aware of the fact that infection has occurred.
The sub-clinical infection would, however, remain and the dormant
bacterium
could subsequently become active, even many years later.
In the latter event, the person would become ill with the disease;
(3)
the bacterium could take hold and multiply, causing the person
to become actively ill with TB.
[11.] It is notionally possible
to establish whether or not a person has in the past been infected
with the TB-bacterium even
if he/she did not become ill with the
disease. A skin test may be performed, which entails the injection
of an extract made of
the cell wall of the bacterium under the skin
of the forearm. Such injection causes a swelling to appear and
approximately 36
hours later, the swelling is measured in order to
establish whether or not a positive result has been obtained. In the
normal
course of events, however, persons are not subjected to skin
tests, inter alia, because it involves an invasive procedure. When
a
person becomes ill with TB, it is accordingly not usually possible
establish definitively whether such illness is the result
of dormant
bacteria having become active (referred to in evidence as
re-activation), or whether it is the result of a fresh infection

(referred to in evidence as reinfection).
[12.] There are also 3 factors
that have a bearing on whether or not a person who has been exposed
to the TB bacterium may develop
a sub-clinical infection or become
actively ill with the disease: (1) the virulence of the bacterium;
(2) the dose of the bacterium
which has been inhaled - the larger
the number of bacteria which have been inhaled, the greater one's
chances of developing the
disease; and (3) the resistance of the
person concerned to the offending bacterium - persons whose immune
system have been compromised,
or who suffer from another illness
that might contribute to the lowering of their immunity, such as,
for example, those suffering
from diabetes mellitus, cancer or HIV -
are at greater risk for developing the disease. Smokers also have a
higher risk for developing
TB.
[13.] Pulmonary TB is diagnosed
by means of sputum tests and cultures, as well as X-Rays of the
lungs. X-Ray findings on their
own are, however, not necessarily
conclusive. Sputum samples are accordingly normally sent off to a
laboratory for analysis.
The laboratory first performs a microscopic
analysis of the sputum sample. Such procedure takes a trained
technician approximately
1 hour to perform. Microscopic analysis
reveals whether or not the bacterium is present and the laboratory
customarily provides
a preliminary report once such analysis has
been completed, usually within a period of approximately 2 days.
Microscopic analysis,
however, does not disclose whether the
bacterium is alive or not. If bacteria are present, these are
accordingly grown in a culture,
a process which can take up to 6
weeks, because the TB bacterium is very slow growing. If the culture
yields a positive result,
it is indicative of active TB infection.
[14.] The standard treatment
for TB consists of a combination of 4 different antibiotics,
referred to as 'Regimen I'. Multi-drug
resistant TB ('MDR-TB') is
treated with different antibiotics which are referred to as 'Regimen
II'. After two weeks of treatment
with such antibiotics, the patient
would no longer be contagious or infective, but patients on Regimen
I have to continue taking
the medication on 5 days of the week for a
period of six months. If patients do not continue treatment for the
full period of
six months, the disease could flare up, causing them
to become infectious again. More importantly though, failure to
complete
the full course of antibiotics over 6 months could cause
the bacterium to become resistant to the antibiotics which are
normally
used. In such a case, the patient would develop MDR-TB.
Patients with MDR-TB have to continue treatment for a period in
excess
of 6 months. There is even a further condition known as
XTR-TB (extreme resistance TB), which is particularly difficult to
treat.
[15.] By reason of the fact
that TB is an airborne disease, its spread is facilitated if many
people live in close proximity to
each other. Poor ventilation and
inadequate sunlight further contribute to the spread of the disease.
Poor nutrition also plays
a role in the transmission of TB, inasmuch
as persons who are malnourished frequently suffer from a compromised
immune system.
[16.] TB is a notifiable
disease. If a person is diagnosed as being ill with TB, such fact
must be reported to the authorities
- in the instant case, to the
Medical Officer of Health of the City of Cape Town.
[17.] In
2000, the Department of Health ('DOH') at National level published a
manual entitled
^The
South African Tuberculosis Control Programme Practical Guidelines'
('
the
guidelines'). The guidelines acknowledge that the cure rate for
detected smear-positive cases of TB has not exceeded 50% in
many
parts of the country and that this is a serious problem. The
guidelines recognise that
\A)n
important factor contributing to a low cure rate is poor patient
compliance in detected cases. Once the symptoms of tuberculosis

lessen, patients find it difficult to continue treatment. Incomplete
treatment can result in infectious patients with chronic

tuberculosis who continue to transmit the infection. It may also
lead to the development of drug resistant strains of tuberculosis.

Therefore, it is important to increase patient compliance.'
[18.] The guidelines for the
treatment of tuberculosis are based on a Directly Observed Treatment
Short-course Strategy ("DOTS').
According to the guidelines:
'DOTS
puts
the priority on curing infectious patients and its core elements
are:
sustained
TB control activities.
Sputum
smear microscopy to detect the infectious cases among those people
attending health care facilities with symptoms of
TB, most
importantly cough of three week's (sic) duration.
Standardized
short-course anti-TB treatment with direct observation of
treatment.
An
uninterrupted supply of TB drugs.
A
standardized recording and reporting system which allows assessment
of treatment results.
Short-course
chemotherapy is a combination of potent anti-tuberculosis drugs
(isoniazid, rifampicin, pyrazinamide, streptomycin
and ethambutol).
It has an initial intensive phase of 2-3 months and a continuation
phase of 4-7 more months. Every dose of rifampicin
should be
observed, at least in the intensive phase of the treatment. ...'
[19.]
The DOTS system of treatment, as the name implies, is calculated to
ensure that every TB patient has the support of another
person
\o
ensure that they swallow their medication daily'.
Such
a supporter need not be a health care professional, but any
responsible member of the community may act as such.
[20.] In
terms of the DOTS system, each person who is diagnosed as being ill
with TB, receives a Patient Treatment Card (such
as Exhibit K)
which, in the instant case, was green. The card has been designed to
reflect the patient's personal details, such
as his/her name and
identity number, whether the person is a new patient or one who has
previously defaulted, the result of sputum
tests, the identity of
the treatment supervisor and, most importantly, a daily record of
the medication being administered. The
patient is supposed to carry
this card. In addition to the patient treatment card, the clinic or
hospital treating the patient
is also supposed to complete a
Clinic/Hospital Card (such as Exhibit L) which, in this case, was
blue. The hospital card has
been designed to reflect information
similar to that provided for on the patient treatment card, but in
addition is intended
to provide,
inter
alia,
a
record of other medical conditions and progress notes.
[21.] Hospitals and clinics
apparently also use a TB Treatment Wheel' (such as Exhibit N) to
keep track of treatment. The treatment
wheel consists of 3 plastic
coated circles of paper which have been clamped together. The centre
circle contains details of the
months and weeks of the year, much
like a calendar, printed on both sides. On either side of the
calendar so provided is another
circle - one dealing with the
treatment of new patients and the other dealing with re-treatments.
The treatment wheel has been
designed so as to show at a glance the
dates when follow-up sputum smears would be due and the dates when
adjustments would need
to be made to the medication.
The Witnesses
[22.] The plaintiff testified
in support of his case and four witnesses were called on his behalf
- Drs Theron and Craven, two
medical doctors who had been employed
as part-time district surgeons at Pollsmoor prison; Mr Frans Muller,
a male nurse formerly
employed at the prison; and Mrs Judy Anne
Caldwell, a TB Project Manager employed by the City of Cape Town.
Two witnesses testified
on behalf of the defendant - Mr Jerome
Gertse, a professional nurse who still works at the maximum security
prison and Professor
Paul David van Helden, a professor in the
employ of the University of Stellenbosch, who specialises in
tuberculosis research.
[23.]
The
plaintiff
was
63 years old at the time of the trial and would turn 64 on 13 April
2010. As a child, he lived in Edenvale until he reached
standard 1.
Somewhat later, he moved to Sedgefield before relocating to Cape
Town in 1996. In Cape Town, he initially lived in
Harfield Village,
Claremont, for a period of 2 or 3 years, whereafter he moved to
Plumstead (a middle class suburb South of Cape
Town), where he
shared a house with a friend.
[24.] The plaintiff was
self-employed. He had a carpet and upholstery cleaning business and
sold watches, which brought him an
income of at least R10,000 per
month. He also bought pre-owned cars, repaired these and sold them
on. The plaintiff liked to
play darts and pool and spent a fair
amount of time in pool halls and bars.
[25.]
Dr
Paul Alexander Theron
obtained
a BSc degree in Medicine from the University of Cape Town in 1969
and obtained the degrees MB ChB from the same university
in 1974. He
has been a qualified medical practitioner for 35 years and was
employed as a part-time district surgeon (now referred
to as a
clinical forensic practitioner) for the Wynberg area in Cape Town
for a period of 24 years. In his aforesaid capacity,
he worked at
Pollsmoor from 1997 to 2007. He was an employee of the Provincial
DOH as well as of DCS.
[26.] Dr Theron commenced his
practise of medicine in the rural hospitals in Kwazulu Natal. One of
these was the Charles Johnson
Hospital where a Dr Anthony Barker was
in charge. Dr Barker was highly regarded in the medical community
for his work with TB
patients and although it was a small, low cost,
community hospital, it attracted doctors from all over the world. Dr
Theron worked
there on three separate occasions for two to three
months at a time. There was a high incidence of TB in the community
and during
the course of his work at such hospital, Dr Theron was
exposed to Dr Barker's approach to the prevention and treatment of
TB.
[27.] Dr Theron was essentially
employed in the 'Medium A' prison. He was, however, also involved
with the maximum security prison
where the plaintiff was detained.
He was the chairperson of the Clinical Forensic Practitioners
Association for the period 1998
to 2008. The members of the
aforesaid Association held meetings on a regular basis and the
situation at Pollsmoor was discussed
at these meetings. He was
accordingly informed with regard to the health situation in the
different sections of the prison and,
in his capacity as the
chairperson of the Association, liaised with the authorities in this
regard. Dr Theron also worked in
the maximum security section of the
prison from time to time when he stood in for Dr Craven. Indeed, Dr
Theron worked in all
of the prisons at Pollsmoor at one time or
another.
[28.] Dr Theron came into
conflict with the DCS over the health issues at Pollsmoor which were
reported to the Portfolio Committee
of Parliament and to the
Inspecting Judge of Prisons. Litigation followed and in settlement
thereof he was appointed to Somerset
Hospital in February 2008.
[29.] Dr Theron considers
himself to be an expert in regard to the contracting, transmission
and spread of TB and has had many
years of experience in the
treatment of the disease. He has lectured on the topic at university
level.
[30.]
Dr
Stephen Adrian Craven
qualified
at the University of Oxford in England in 1970. He has been
practising as a medical doctor for a period of 30 years.
He is a
licentiate of the Royal College of Physicians, as well as a member
of the Royal College of Surgeons. After obtaining
his medical
qualifications, he worked in England before spending 7 months in
general practice in Lagos, Nigeria. Subsequently,
he worked in
England again, spent some time as a ship's surgeon for the Union
Castle line and acted as locum for a doctor in
Cape Town, whereafter
he moved to Algeria and eventually moved to South Africa
permanently. He has worked for the Provincial
Administration in
various capacities, both on a full time and part-time basis at
Groote Schuur, at a hospital in Port Elizabeth
and at the Brooklyn
Chest Hospital, where he was in charge of TB patients. In 2003 he
was appointed as an honorary lecturer in
family medicine at the
University of Cape Town.
[31.] Dr Craven worked as a
part-time district surgeon at the maximum security prison from 1988
to September 2003. His working
hours were confined to 5 hours in the
morning on weekdays. He is currently engaged in a private medical
practice in Wynberg,
in addition to being the principal medical
officer at the Lady Michaelis, a Provincial day hospital where
primary medical care
is provided. He still comes across TB-patients
at the day hospital, but patients who are diagnosed as being ill
with TB, are
referred elsewhere for treatment.
[32.] Dr Craven acquired his
knowledge and experience in regard to TB at medical school, by
attending lectures and reading text
books, by working at the
Brooklyn Chest Hospital for a period of approximately 18 months and
through his work at the prison.
[33.] Dr Theron and Dr Craven
testified as factual witnesses, but also as experts in relation to
the treatment and prevention
of TB.
[34.]
Mr
Frans Muller,
a
professional nurse, was employed at Pollsmoor for a period of 10
years as the Area Co-ordinator, Health Care. He is currently
working
as a temporary employee at the D P Marais Hospital in Retreat, Cape
Town, a TB-hospital. He testified that he has been
unable to accept
a permanent position, because he is still in dispute with the DCS.
[35.]
Mr
Jerome Gertse
qualified
as a professional nurse in 1998, completed a course in primary
health care in 2002 and in 2003 he completed a course
in TB
management. He started working at Pollsmoor as a junior nurse in
February 2001, after having worked at Voorberg Prison
in Porterville
and at Goodwood Prison. In 2006 he was deployed to the Medium
C-prison at Pollsmoor where he worked with Dr Theron.
Mr Gertse is
currently still employed by the DCS at Pollsmoor, where he is in
charge of the hospital in the maximum security
prison.
[36.]
Prof
Paul David van Helden
obtained
a BSc-degree in Biochemistry, Chemistry and Microbiology from the
University of Cape Town in 1973, as well as a BSc Honours-degree
in
Biochemistry in 1974 and a PhD in Biochemistry in 1978. From 1979 to
1981 he was the Senior Professional Officer at Tygerberg
Hospital in
the Department of Medical Physiology and Biochemistry of the
University of Stellenbosch. He remained in the employ
of the
University of Stellenbosch and in 1992 he became the Chair of the
Department of Medical Biochemistry and Director of the
Medical
Research Council's Centre for Molecular and Cellular Biology. His
research has been focussed on TB for the past 20 years
and he has
been involved in many papers which have been published in peer
review journals such as, for example, the New England
Journal of
Medicine.
The Plaintiff's Evidence
[37.] The plaintiff testified
that he was tested for TB once or twice when he was a child. A van
used to come around in Edenvale
and all of the children were
subjected to X-Rays. He could, however, not recall whether any
sputum tests were conducted at that
time. He was always a fit and
active person and boxed for many years. Apart from some trouble with
his heart and prostate, he
was healthy and he had never been ill
with TB prior to his incarceration. He cooked, as did his house mate
and he looked after
himself, because he had been taught to look
after his body. He did, however, admit that he was a smoker prior to
being detained
at Pollsmoor prison and during the period of his
incarceration.
[38.] The
plaintiff denied that he was a chain smoker. Whilst in prison, he
cut down from 30 to 5 cigarettes per day at one stage,
but he
testified that one generally tends to smoke more in prison and that
smoking was very prevalent. As he put it,
^everybody
and his brother smokes there'
and
the prison reeked of smoke. The plaintiff stated that some of the
inmates made cigarettes out of newspaper, some smoked dagga
wrapped
in newspaper and some made a 'hondjie' out of toilet paper. (Dr
Theron described a 'hondjie' as consisting of tightly
rolled up
toilet paper which is lit and left to smoulder so that prisoners can
light up their cigarettes.) The 'hondjie' stinks
and closes one's
chest. Smoke from the cells in a section of the prison, drifts down
the corridor. Dr Craven advised him to stop
smoking and he stopped
for a long time, but he was under much pressure prior to the trial
taking place, which caused him to start
smoking again.
[39.] Upon arriving at
Pollsmoor for the first time, the plaintiff was taken to a holding
cell in the administrative section of
the maximum security prison.
One of the inmates, a Trevor Blignault, conducted a basic screening
procedure by, inter alia, asking
persons who had medical conditions
to step forward and to make themselves known. Thereafter, Blignault
also conducted the registration
process and the plaintiff was issued
with a prison card. Although Mr Gertse averred that the nurses took
turns to do duty at
admissions and that the screening was conducted
by the nurse who was on duty, the plaintiff stated categorically
that he never
saw a nurse doing so on any of the occasions when he
came back to the prison from court.
[40.] Upon
completion of the necessary administrative process, the plaintiff
was admitted to the hospital in the maximum security
prison, because
he suffered from a heart condition. The following morning he went on
medical parade and saw Dr Craven, whom he
informed of the medication
he was using at the time. Dr Craven issued a prescription for such
medication and officially booked
him into the hospital, where he
stayed until he was released on bail in February 2000. He was
described as
^well
obese'
in
his medical record and Dr Craven put him on half rations.
[41.] After being re-arrested,
the plaintiff was sent back to the maximum security prison where he
was detained in a holding cell
in the reception area, before
spending the night in a holding cell in C-section. He described the
cell as having been filthy
and disgusting, so much so that he sat on
his clothes during the night.
[42.] The plaintiff thereafter
spent some time in communal cells in the prison, but eventually
succeeded in being placed in a
single cell, which he shared with two
other inmates. He testified that one of the inmates in the prison
had told him to have
himself checked for TB every six or 12 months
and he therefore regularly had sputum tests performed. The results
of all of these
tests were negative until 2003.
[43.] In
2003 the plaintiff experienced heaving coughs which continued for
weeks. In addition, he started losing weight and experienced
night
sweats. He became concerned and asked for a sputum test to be
conducted, but the test results were negative. When the cough
still
persisted, he had another sputum test, which also produced negative
results, shortly before he sustained a hernia which
caused him to be
admitted to Victoria Hospital. He said that one afternoon when he
came back from court, he
^felt
something go'
in
the lower part of his abdomen, near the scrotum. The following
morning (27 May 2003 according to the note in his hospital file)
he
was taken to see Dr Craven at the prison hospital, who referred him
to Victoria Hospital for surgical repair of an inguinal
hernia.
Prior to surgery being conducted at the said hospital, X-Rays were
taken of his chest and stomach and the X-Ray of the
lungs revealed
that he suffered from TB.
[44.] The plaintiff was
discharged from Victoria Hospital approximately 3 days after surgery
and was then admitted to the hospital
in the maximum security
prison, where he was placed in a communal cell with 8 or 9 other
prisoners. The following day, Dr Craven
called for another sputum
test and such test yielded a positive result for TB. He was placed
on medication which he had to take
from Monday to Friday of each
week. After spending approximately 10 days in the hospital section
of the prison, he went back
to the single cell which he shared with
two other prisoners. Whilst he was in the hospital section, he was
not at any stage separated
from the other patients there and he
testified that he was not aware of an isolation section, whether in
terms of a separate
ward in the hospital or any separate cell(s) in
the section which was designated for TB patients. Although the
plaintiff's hospital
records tend to show that he remained in the
hospital for a period of approximately 5 months at one time, he
could not clearly
recall that, but was prepared to accept that he
might have stayed in hospital for up to 4 months.
[45.] The
plaintiff accepted that sputum tests were performed for prisoners
who asked to be tested for TB and that the nurses,
if they thought
someone was suffering from TB, would cause that person to be tested.
He did mention, however, that the gang influence
was strong. As he
put it, the gangsters
\un
the prison, the warders are there just to lock the doors'.
If
the gang members decided that any particular person would not be
permitted to undergo a sputum test, that was the end of the
matter.
Moreover, prisoners who were diagnosed with TB tended to keep quiet
about it, because there was stigma attached to the
condition.
Consequently, he was not in a position to know who had TB and who
did not. Coughing was no reliable indication, because
almost
everybody in prison coughed as a result of the smoking.
[46.] The plaintiff also agreed
that a complaints register was maintained in the prison. The book
was kept in the office of the
section head and if any inmate had a
complaint or request, it would be noted in the register. He made one
or two requests himself
and these had been attended to.
[47.] The
plaintiff testified that during his hospitalisation he would receive
his medication daily. Once he was sent back to
his cell, however, he
experienced some difficulty in obtaining his medication. He denied
that a nurse handed out medication in
the section on a daily basis.
According to his recollection, a nurse would conduct
x
pill
parade' in the section once a week, but if there was a staff
shortage, a week or two would sometimes pass without any pill
parade
being conducted. Indeed, on one occasion prior to becoming ill with
TB, he did not receive any of his chronic medication
for a period of
3 weeks. This fact was noted on his medical file after he had
complained to Dr Craven.
[48.]
Getting to the hospital was also no simple matter. In the normal
course, one day per week was reserved for prisoners in
each section
to see the doctor. Prisoners had to be accompanied by a warder and
had to pass through about 7 gates to get to the
hospital section.
Sometimes the plaintiff managed to go through to the hospital for
his medication in the mornings when the diabetic
prisoners were
taken through for their insulin injections and on other occasions he
bribed one of the warders to take him through.
The plaintiff had
been warned that he could be reinfected and could develop drug
resistant TB if he failed to take the medication
as prescribed for
the full period of six months and he accordingly
^begged,
bullied and bribed'
to
get his medication. The nurse in the hospital trusted him and if she
was going to be off duty, he would ask her for a few days'
supply of
medication, which she would hand over to him. At times he had as
much as a week's supply of his TB­medication in
the cell with
him.
[49.] The plaintiff admitted
that on occasions when he received his TB medication at the
hospital, he would have to swallow the
tablets in the presence of
the nurse. However, on occasions when he went to court, or when he
was not taken to the hospital,
nobody supervised him so as to ensure
that he took his medication. The plaintiff denied that he had ever
received a green patient
treatment card and said that he had not
known that he was supposed to be in possession of such a card.
[50.] The
plaintiff attended court in excess of 70 times during the period of
his incarceration. The standard routine was that
prisoners would be
woken up at 04h30 or 05h00 to get ready to go to court. They were
then taken to the corridor near the kitchen
where they received
breakfast, from where they were taken to reception. There they were
held in separate holding cells depending
on the court they were to
attend, before being loaded onto trucks or vans which took them
through to court. Prisoners going to
the Cape Town court were
'stuffed
into
vans like sardines'.
At
the court, they were placed into cells which were
^jam
packed'
and
prisoners who had to appear before the regional court were taken to
a separate, smaller cell, which was not overly full. The
plaintiff
initially appeared in the lower court and once his trial started, in
the regional court.
[51.] Upon arriving back at the
prison after court, prisoners are counted and searched before being
let into the reception area
and the communal cells where they had
waited to go to court in the morning. New prisoners are registered
and existing inmates
are taken to the overnight cell. The plaintiff
stated that on occasions when he was not feeling well, some of the
warders would,
however, make a plan to get him back to his cell. He
readily acknowledged that the warders assisted him as much as they
could.
[52.] The plaintiff was
detained in E-section almost throughout the period of his
incarceration and was in a single cell (occupied
by himself and 2
other prisoners) for most of the time. At one stage, however, the
whole section was moved to the Medium B-prison
where he was detained
in a communal cell with about 25 Moslem prisoners for a while. On
being moved back to E-section, he was
held in a communal cell again,
until he managed to buy himself a space in a single cell once more.
[53.]
Prisoners, such as the plaintiff, who are incarcerated while on
trial, spent up to 23 hours a day in their cells. Weather

permitting, they would be taken out into a concrete yard for
exercise for 30 to 60 minutes. The concrete yard was always
^packed'
and
at times other sections were let into the yard at the same time as
E-section. When prisoners lined up to go to the exercise
yard, they
were confined in close proximity to each other in a passage leading
to the yard. The plaintiff complained, because
he got robbed outside
in the yard and he was eventually allowed to exercise inside the
section.
[54.] Food was brought to the
sections. Prisoners would fetch the food and eat in their cells.
Lockdown came at around 16h00 or
16h30. That meant that not only the
barred gate to the cell would be closed, but also the solid metal
door. The door would remain
shut until the next morning.
[55.] The Plaintiff readily
admitted that after he had become ill with TB, he frequently stated
that he would be taking the defendant
to court after his release
from prison.
The Evidence of Mr Frans
Muller
[56.] Mr Muller came to testify
pursuant to having received a witness subpoena. In his capacity as
the Area Co-ordinator : Health
Care, he was responsible for
co-ordinating health care between the 5 different prisons at
Pollsmoor. His duties included the
optimal utilisation of staff at
each of the prisons and he had to ensure that each institution was
adequately staffed. Health
services at the maximum security section
also ultimately fell under his supervision.
[57.] Each of the 5 prisons at
Pollsmoor also had a Centre Co-ordinator who was responsible for
managing the daily operations
in that particular prison. Mr Muller,
however, was in overall charge of nursing services at Pollsmoor and,
in the ordinary course
of performing his duties, he visited each of
the prisons on a regular basis. He was accordingly aware of any
incidents which
had occurred and knew which members of staff were on
duty.
[58.] Mr Muller testified that
there was a critical shortage of nursing staff at Pollsmoor
throughout the time of his employment
there and that the number of
staff members had been inadequate to deal with the workload. The
problem was particularly severe
in the maximum security prison which
was over-populated and where each of the staff members had to carry
the workload of 3 or
4 persons. This frequently caused them to be
off work due to illness which, in turn, placed an even greater
burden on those staff
members who remained. Mr Muller had direct
knowledge of conditions at the maximum security prison inasmuch as
he had to stand
in on occasion when other staff members were not at
work.
[59.] As the person in charge
of nursing services at Pollsmoor, Mr Muller was responsible for
ensuring that an acceptable health
standard was maintained. The
shortage of staff militated against the maintenance of proper
standards. For that reason, he regularly
took up the issue relative
to staff shortages with his superiors. He not only held discussions
with the area commissioner in
this regard, he wrote several letters
to the responsible authorities, bringing this matter to their
attention. So, for example:
[59.1] On 4
February 2000 he wrote a letter to the Area Manager, Pollsmoor, the
Provincial Commissioner and the Commissioner of
Correctional
Services bearing the heading 'CRITICAL SHORTAGE
OF
NURSING PERSONNEL ; POLLSMOOR MANAGEMENT AREA'
.
In this letter, he highlighted, inter alia, that the staff was
overworked and that additional posts for registered nurses which
had
been approved after discussions in 1997 and 1998, had not been
filled. The letter referred to the fact that the average daily

lockup total was 3200 and that although 15 posts for registered
nurses had been approved pursuant to a work study having been

conducted, only 7 registered nurses were employed and the
'infrastructure
and
over population'
made
it difficult for nursing staff to do their work effectively. He also
pointed out that although the admissions centre (maximum
security
prison) was under staffed, staff members working there had to help
out in the other prisons on the property on a regular
basis.
Overall, the Pollsmoor Management Area operated with 22 approved
posts for registered nurses, although the staff establishment,

according to a Work Study which had been performed, required 40
registered nurses. This equated to 55% of the number of staff

members required. In summary, Mr Muller's letter stated, inter alia,
that '(W)e
are
sitting on a time bomb. Members are overworked and frustrated.'
[59.2] On 25
July 2000 Mr Muller wrote to the Area Manager, Provincial
Commissioner and the Commissioner again. The letter reiterated
that
there was a drastic staff shortage and pointed out, in particular,
that 'personnel
are
exposed to many Medico-Legal hazards that can lead to severe
embarressment
(sic)
for
our department'
and
that '(D)uring
1998,
posts for 18 additional registered nurses were approved, but nothing
happened subsequently. The 3 vacant posts in our current

establishment are still not filled although candidates were
interviewed in February 2000.'
In
the summary provided at the foot of the letter, Mr Muller stated,
inter alia, that 'although
the
prison population has increased drastically since 1996, the nursing
staff has decreased by almost 40%'
.
Under the heading 'RECOMMENDATION' he stated
'we
are sitting on a time bomb. Please let us avoid the explosion.'
[59.3] On 27
September 2001, more than a year after the letter referred to in the
immediately preceding paragraph, Mr Muller forwarded
a report to a
Mr J Sinclair at the Provincial Commissioner's office by facsimile,
after a meeting with the Portfolio Committee.
In the report, he
pointed out, inter alia, that the 'critical shortage
of
nursing personnel'
left
the staff to cope with
'an
enormous workload under difficult conditions'
and
that the 'massive
overcrowding
increases the pressure on our nursing staff and aggrevates (sic) the
poor conditions under which our inmates are
detained.'
At
that stage, 6 approved posts for registered nurses remained vacant,
which included 3 vacant posts at the maximum security prison.
None
of the 15 additional posts which had been approved for the maximum
security prison in 1998 pursuant the work study which
had been
performed, had been filled. Posts had been advertised in August 2001
but no interviews had been held.
[59.4] On 28 November 2001 Mr
Muller addressed a letter to Ms M Magoro, the Director: Health and
Physical Care, at the head office
of the DCS asking that the
appointment process be speeded up in view of the critical shortage
of nurses.
[59.5] On 16
January 2002 Mr Muller, once again, took up the cudgels in writing
when he wrote to Ms Maria Mabena, the National
Health Care
Co-ordinator at the said head office in regard to the critical
shortage of personnel and the failure to fill vacant
posts. It
appears from the letter that after the vacant posts had been
advertised in August 2001, interviews were held from 29
October
until 2 November 2001, whereafter the list of candidates was sent to
headquarters for approval. At that time, 6 posts
were vacant at
Pollsmoor. No appointments had, however, been made and a further 4
nurses had resigned in the mean time, bringing
the total number of
vacant posts
to
10.
[60.] Mr Muller testified that
the situation had not improved much by 2002 and 2003, although
additional nurses had been employed
on a temporary basis. Indeed,
the vacant posts on the staff establishment were not filled during
his entire term of employment
at Pollsmoor. The maximum security
prison was no exception. It had only approximately 50% of the nurses
who were required and,
as has been referred to above, not all of the
nurses who were employed were at work. Only one nursing sister was
on standby duty
for the night shift, i.e. after 16h00 in the
afternoon and such nursing sister had to cover all 5 of the prisons
at Pollsmoor.
In the result, screening of prisoners who came into
the prison from court could not be conducted by the nurse. Indeed,
the screening
of incoming prisoners did not form part of the duties
that the night nurse was expected to perform. Instead, the warders
had
to ensure that persons who had medical problems were referred to
the doctor the following morning and if someone was obviously
ill or
injured, the warder had to summon the nurse who was on duty. If the
standby nurse lived on the property, he/she would
remain at home
until summoned. If not, the standby nurse would do duty at the
prison where he/she normally worked until he/she
was called out to
one of the other prisons. Mr Muller was the person who prepared the
duty roster for the night shift and accordingly
had direct knowledge
of the staff position after hours as well as of the duties which the
night nurse was expected to perform.
[61.] Mr Muller confirmed that
the ideal in so far as treatment for TB was concerned, was that
clinics would be conducted in each
of the sections of the prison and
that the DOTS system be applied. In practice, however, there weren't
enough staff members available
and it frequently happened that staff
could not reach the sections on a daily basis. In such instances,
warders had to take inmates
to the hospital in order to obtain their
medication.
[62.] Mr Muller could not
recall whether the 'suspect register' which contained the details of
persons who were suspected of having
TB, was maintained during 2002
and 2003. He did confirm, however, that all TB test results, whether
positive or negative, ought
to have been referred to the attending
doctor in order that the patient's case might be managed. He also
confirmed that persons
who were in the infectious stage of TB ought
to have been separated from other inmates, but that in practice it
was not logistically
possible to do so, because there was
insufficient accommodation available. The number of single cells
available were also inadequate
to cope with the demand.
The Evidence of Doctor
Theron
[63.] Dr Theron testified that
he learnt from Dr Barker during the time he worked with the latter
in 1971 to 1973, that control
of TB was a relatively simple and
inexpensive matter. The hospital ran by Dr Baker, despite being a
low cost, community facility,
had great success with the treatment
of TB, because people were motivated to deal with the problems which
underpinned the disease.
Emphasis was placed on the early
identification of persons who were deteriorating and who would
become vulnerable to TB, on early
diagnosis of the disease and on
proper nutrition.
[64.] Dr Theron explained that
the diagnosis of TB is, in the first instance, based on
symptomatology - if a patient were to report
a certain pattern of
symptoms, the doctor would be alerted to the fact that he/she may
possibly have TB. The second level of
diagnosis involves the
physical examination of the patient and, in particular, a chest
examination, as well as determining the
patient's height and weight.
The third level of diagnosis involves a sputum test and one needs
trained staff to assist in obtaining
the sputum samples. If a sputum
test yields positive results, treatment would start. At that stage,
the patient would be infectious
and would present a risk of passing
the disease on to others. In an institution such as Pollsmoor, one
could control the process
of infection by isolating people
immediately upon them being suspected of having an active TB
infection, or upon being diagnosed
as such and by keeping them
isolated until such time as they had been on treatment for long
enough.
[65.] Dr Theron testified that
before 1997 there were no cases of TB at the Medium A-prison where
he worked. The situation changed
dramatically with the change of the
Medium A prison from an adult sentenced prison to a juvenile
facility. The maximum security
prison did not undergo such a change,
but the latter prison had always been subjected to seriously high
pressures in terms of
numbers and the management of patients was in
the hands of the warders rather than of the nursing staff. There
were frequent
problems in getting access to people with TB, in
isolating them and in providing treatment for them, not because the
warders
were deliberately obstructive, but because there was
insufficient co-operation for a variety of other reasons. The
maximum security
prison is a massive building which is controlled by
various gates and access points. The hospital section lies at the
far end
of the building on the lower level. In order to get there,
one has to walk through the entire prison and pass through 6 or 7

gates. Inmates are scattered throughout the prison and are
identified not by their names, but by numbers which appear on a list

which is held at different points within the prison. It was
accordingly extremely difficult to get hold of a particular
prisoner,
because the exercise was dependant on the full
co-operation of the security staff. Such co-operation was not always
forthcoming,
due to staff shortages and the nature of the duties
that warders had to perform. Warders were not in a position to know
whether
a prisoner who was coughing consistently was doing so as a
result of smoking, or because he was ill with TB and they could not

always bring prisoners to the doctor. Dr Theron had several cases in
the Medium A-prison, as well as in the maximum security
prison,
where prisoners with active TB and symptoms of TB had been
incarcerated for 3 or 4 months without having been referred
to
hospital, because of difficulty with access.
[66.] In cross-examination it
was put to Dr Theron that Mr Gertse would testify that warders as
well as nursing staff co-operated
well and that there was no
resistance to getting inmates suspected of having TB to the doctor,
because they (the warders and
nurses) would be putting themselves at
risk. Dr Theron disagreed. He stated that he had seen many cases
where people had been
coughing for months without getting to the
hospital, that it was very difficult to move around without security
staff and that
the lack of full co­operation by security staff
was a persistent problem.
[67.]
According to Dr Theron, there was a direct correlation between the
breakdown of the health system in the prison and the
increasing
spread of TB. In order to obtain good control over TB, one needs a
good nursing team, made up of a sufficient number
of doctors and
nurses, to follow an agreed protocol in order to reduce the pool of
infection by keeping a cordon around those
who are being treated and
by preventing new cases from coming in without control, through
adequate screening procedures. Such
protocol is dependant on nursing
staff. At Pollsmoor, there were simply not enough members of staff
to conduct adequate screening
procedures or to administer the
necessary medication according to the DOTS system, nor was it
possible to get to persons who
were ill with TB, or to isolate them,
consistently. Dr Theron explained that the aforesaid problems
existed not only in the Medium
A prison where he normally worked,
but also in the maximum security prison. He was
au
fait
with
the conditions in the maximum security prison, because he stood in
for Dr Craven from time to time when the latter could
not be on duty
and because, in his role as chairman of the Clinical Forensic
Practitioners Association, he was in and out of
the maximum security
prison on a regular basis in the performance of his duties and had
regular contact with the nursing staff
and the administration at
Pollsmoor prison.
[68.] Dr
Theron referred to Chapter 3 of the Standing Correctional Orders
('the Standing Orders') which have been compiled so
as to give
effect to the provisions of the
Correctional Services Act. The
Standing Orders deal, inter alia, with health services and the
physical care of prisoners. Clause 4 of the said chapter deals
with
the screening of prisoners and provides, inter alia,
that:
'4.1
Admissions
(a)
All admissions to the prison, including parolees, transfers from
other prisons, persons under 48 hour incarceration and

babies/children should be seen on admission by a registered nurse in
privacy, with the police/custodial staff in waiting, for the

following:
any
medical problems, either acute or chronic; ...
present
treatment; ...
documentation
(screening form to be filled and be attached to the medical file
during the medical examination process).'
[At this stage it must be
mentioned that both parties treated the extract from the Standing
Orders, which was before Court as
part of Exhibit A, as the Standing
Orders which had been in force at the time of the plaintiff's
incarceration and illness. During
the course of preparing this
judgment, it became apparent that the said extract from the Standing
Orders contained numerous cross
references to the
Correctional
Services Act No 111 of 1998
, but that no mention was made of the
Correctional Services Act
No 8 of 1959 ('the 1959-Act'). The
provisions of the new Act which deal with the treatment of prisoners
had, however, not been
put into operation until 31 July 2004, i.e.
subsequent to the plaintiff becoming ill with TB. The problem was
brought to the
attention of the parties' legal representatives and
plaintiff's attorney of record made further enquiries to the DCS. On
28 January
2011 Mr Carel Paxton, the Director : Code Enforcement of
the DCS advised that the Standing Orders in terms of the 1998 Act
are
identical to those that applied in terms of the 1959- Act, only
the cross references had been changed to reflect the corresponding

provisions in the later Act. Such information was placed before me
by agreement between the parties' legal representatives.]
[69.] Dr Theron described the
screening order as the most important of all of the provisions of
the Standing Orders with regard
to health. Screening (which is also
referred to as 'the admission procedure'), means that a nurse who is
suitably qualified by
training and experience, interviews incoming
prisoners, identifies those with health problems, removes those who
are suffering
from severe injuries or active health problems which
might endanger others and refers them to the hospital. A prescribed
procedure
had to be followed and an official form had to be
completed during the screening process. Such form had to be attached
to the
medical notes. If the screening process had been in place and
had been maintained in the proper manner, it would have ensured that

those with medical problems were not only identified, but also
received appropriate medical care. Effective screening would have

prevented persons who were ill with TB from entering the general
prison population and would therefore have played an important
part
in preventing the spread of the disease. In Dr Theron's experience,
such procedures were, however, not implemented in Medium
A where he
worked, other than right at the beginning of his tenure of office
and right at the end. From the information he had
been able to
obtain, he believed that the process was also not performed in the
recommended manner at the maximum security prison.
[70.] Dr Theron brought the
unacceptably high incidence of TB in Pollsmoor to the attention of
the authorities of the DCS, as
well as of the Provincial DOH. After
repeated requests for action over a period of approximately a year,
an assessment of the
prison was eventually conducted by the DOH in
2000. Certain recommendations were made, a special task team was set
up and various
people were educated in the implementation of the
DOTS system. In practice, however, the persons who were appointed to
supervise
the taking of TB medication, at least in the Medium A
prison where he worked, were inmates. Such a system was bound to
fail,
because sooner or later the gangs would take over and would
use the medication for their own purposes, so that very few
prisoners
were getting their medication as prescribed. Prisoners
smoked almost everything, including drugs. Dr Theron agreed that
DOTS
may work very well outside of prison and that it would work in
prison if one had enough nurses to carry it out, but in 2000, 2003

and 2004 there were not enough nurses to go round at Pollsmoor in
order to perform ordinary nursing tasks, so that DOTS was not

practised on a wide scale.
[71.] Dr Theron testified that
despite the formation of the task team referred to in the
immediately preceding paragraph and the
submission of reports, no
changes in the system were effected. When he enquired about the lack
of response, the head of the prison
told him that he (Theron) was
not permitted to approach the Minister (i.e. the defendant) and he
then resigned from the task
team. Dr Craven had a similar problem at
the maximum security prison -there were discussions, but no
effective changes were made.
The problem came, not from the
authorities at Pollsmoor, but from higher up, because head office
permission was required to make
changes and such permission was not
forthcoming. Dr Theron was aware of the fact that money was spent to
repair ablution blocks,
dormitories and the like, but no adequate
health plan was developed or implemented.
[72.] The number of nurses
employed at the hospital during the 10-year period that Dr Theron
worked there, steadily declined.
Indeed, from approximately 35 or 36
nurses, the numbers eventually declined to 2. There was actually
only 1 nurse on duty on
the day when the Inspecting Judge conducted
an inspection at the maximum security prison and that person was not
a qualified
nurse, but only a nurse assistant. Dr Theron stated that
there were enough doctors at Pollsmoor, but that TB treatment, in
particular,
required consistent application of the treatment
protocol or policy. It was impossible to implement or to maintain
such protocol
without sufficient numbers of nurses and security
staff (the security staff were needed to bring the patients to the
hospital
in order to get medical attention or treatment). Unless
sufficient numbers of nurses were available, the chain of support
was
broken, persons no longer received their treatment and as a
result, they were re-infected or became resistant to the usual drug

regimen. The fact that nurses were also obtained from an outside
agency to fill positions temporarily did not provide for continuity

of treatment, which was essential in the management of TB.
[73.] In Dr
Theron's view, Pollsmoor 'exhibited
a
disastrously poor control of TB'.
MDR-TB
had become prevalent within Pollsmoor, which was indicative of the
breakdown of the health care system (one of the staff
members died
of complications to her lungs which were caused by MDR-TB). Indeed,
both MDR-TB and XTR-TB were present in Pollsmoor.
The presence of
XTR-TB was indicative of the fact that there was a large number of
patients who had been inappropriately treated.
Some people with
MDR-TB or XTR-TB could clearly have come from outside of the prison,
but that is why screening ought to have
been conducted effectively
so that those persons could have been treated appropriately.
[74.] Around 2002 or 2003 the
doctors and nurses working at Pollsmoor requested the City of Cape
Town to give assistance with
the control of TB. Certain changes were
introduced, inasmuch as the nurses subsequently had clear guidelines
to follow and registers
which had been falling into disuse were
re-introduced. These changes, however, produced only marginal
improvements and were not
maintained, because the number of nursing
staff continued to decline. The authorities had also not co-operated
to provide any
support system.
[75.] Dr Theron had raised
issues around health care in the Medium A prison with the
authorities since 1999. Eventually, he made
contact with the
Inspecting Judge of Prisons and a member of the Parliamentary
Portfolio Committee in order to report in person
on the poor
management and control of health at Pollsmoor. The problems which he
had highlighted in respect of the Medium A prison
were not unique
and Dr Craven was, at the same time, raising issues about health
management in regard to the maximum security
prison. All of the
prisons forming part of Pollsmoor were having problems in managing
TB.
[76.] In January 2002 Dr
Theron, in his capacity as the chairperson of the Cape Clinical
Forensic Practitioners Society, prepared
a report for Dr L S Bitalo,
the official responsible for the district surgeons' service at
Provincial level. The report was written
with the collaboration and
co-operation of all of the doctors who worked at Pollsmoor and
applied to the whole of the Pollsmoor
prison complex. In the report,
Dr Theron highlighted the issues that were problematical in
providing health care such as, for
example, gross overcrowding,
under staffing, gang related behaviour and the correctional services
hierarchy. So, for example,
the report referred to the fact that the
numbers of both nursing staff and security staff had declined. More
importantly though,
the report suggested solutions based on the
creation of a new partnership between the DCS and the DOH in terms
whereof the DOH
would provide staff and health facilities within the
prison system.
[77.] The aforesaid report
appeared to have some positive results. The DOH came to Pollsmoor to
educate the nurses in regard to
the management of TB and to draw up
a programme aimed at improving TB medication and TB control
throughout the various prisons
at Pollsmoor. Unfortunately, these
initiatives broke down again, because of the shortage of nursing
staff.
[78.] In describing the type of
overcrowding that occurred at the maximum security prison, Dr Theron
relied on the average figures
provided by the DCS. These indicated
that the average overcrowding in 2003 was around 234% to 236%.
Overcrowding meant that disease
could be spread more easily and, as
far as TB was concerned, the more people were packed into a cell,
the greater the prospects
that bacteria which were coughed up would
infect other inmates. Dr Theron regularly saw overcrowded cells in
the maximum security
prison, also during the course of 2003, and
testified that his first impression was one of dinginess and
squalor, because blankets
are often used to protect or cover up
places within a cell. He described the situation as dehumanising.
[79.] Dr Theron testified that
the size of cells in the maximum security prison varied, but a
fairly standard cell with 40 to
60 people in it, would have inmates
crowded one on top of the other, sitting on their double or triple
bunks, with very little
place for them to move. In addition to the
cells being dingy and dirty, they were usually filled with cigarette
smoke. Prisoners
also used toilet paper to make a 'hondjie' - toilet
paper would be taken off the roll and would then be tightly rolled
up, twisted
and compressed, whereafter it would be lit and left to
smoulder so that it could be used as a perpetual cigarette lighter.
The
hondjie would burn for several hours and when it burnt low, it
would be replaced by another. It produced a pungent, toxic, gas

which was irritating to the respiratory tissues and accordingly
added to the risk of getting TB.
[80.] The
overcrowding contravened the provisions of the Standing Orders with
regard to the accommodation of prisoners. So, for
example, clause 2
of Chapter 2 of the Standing Orders provides that the minimum
permissible cell area per prisoner, excluding
areas taken up by
ablution facilities, walls, pillars and personal lockers which have
not been built in, must be 3,344m
2
in respect
of ordinary communal cells and 5,5m
2
in respect
of ordinary single cells. Although Dr Theron had not taken any
measurements in this regard, he was sure that these
requirements
could not have been complied with in circumstances where the
overcrowding ran to 234%. The mere fact that there
were 3 persons in
a single cell was indicative of the overcrowding and the holding
cells where prisoners were detained when they
returned from court,
housed from 60 to 120 persons.
[81.] Dr
Theron stated that overcrowding was 'discussed ceaselessly,
from
the time that I was there, right through until the time I left'.
Many
options were suggested to improve the situation, such as, for
example, setting prisoners free who were unable to pay the
bail
amounts set by the courts and liaison with the courts so as to
ensure that fewer prisoners came to Pollsmoor on trivial
charges.
There was some reduction in the overall prison population, but the
actual overcrowding was not reduced in any significant
way.
Prisoners would frequently be sent to smaller prisons in the Western
Cape, but the number of persons so diverted was small,
because the
smaller prisons only accepted a limited number of prisoners.
[82.] Dr Theron stated that
both he and Dr Craven had regular discussions with a Mr Engelbrecht,
the Area Manager of Pollsmoor,
who was in overall charge of the
Pollsmoor prison complex. During these discussions, Mr Engelbrecht
was apprised of the prevailing
conditions at the maximum security
prison and he made numerous attempts to get the Head Office and the
Regional Office of the
DCS involved. So, for example, on 22 January
2002 Mr Engelbrecht forwarded a facsimile to the Commissioner
dealing with the critical
shortage of nurses and the appalling
working conditions at Pollsmoor (Exhibit A, p 29 -80). At that
stage, Mr Engelbrecht recommended,
inter alia, that 10 Professional
Nurses be appointed immediately. Dr Theron stated that from the
level of Area Management down,
nobody disagreed with his criticism
of the health system or with the comments of Mr Muller, who was in
charge of nursing services.
[83.] Dr Theron stated that the
nurses were, generally speaking, dedicated and effective. Inadequate
training and education of
nurses in regard to TB and its management,
however, caused effective treatment to break down. Nurses worked for
the DCS on a
full time basis and doctors were coming in part time.
This meant that doctors were not integrated into the system and that
there
was inadequate opportunity for discussing problems. As a
consequence, instructions given by the doctors were easily
disregarded
if the nurses thought these to be inappropriate. Dr
Theron's view was that the guidelines were not clear enough, because
the
prison environment presented a more difficult situation in
regard to the management of TB than the outside world. Education
would
have helped to bridge the divide between doctors and nurses
and that, in turn, would have facilitated better management of TB.
[84.] Dr Theron referred to the
work study which recommended a staff complement of 53 nurses for
Pollsmoor. This was in fact never
achieved during the period of his
employment there. The steady decline in the number of nurses
employed at the prisons was brought
to the attention of the
authorities, but the situation failed to improve. Pursuant to an
inspection by the defendant in 2000,
it was recommended that a full
time doctor be appointed for Pollsmoor, but this recommendation was
also not carried through.
In 2001 one Dr Trope was appointed on a
full time basis to visit Pollsmoor regularly, to monitor the
situation and to liaise
with Dr Jano, the Chief Medical Officer at
the Provincial Administration : Western Cape. After spending one
morning at the maximum
security prison in the place of Dr Craven, Dr
Trope left, never to return.
[85.] In
cross-examination, Dr Theron was confronted with a table, prepared
by the Defendant's officials, reflecting the employment
statistics
at Pollsmoor during the period March 2002 to December 2004. These
statistics showed that the number of nursing and
support personnel
varied from 18 to 29 during the said time. Dr Theron stated that he
had
'every
reason to doubt'
the
statistics, inasmuch as these could not be verified by reference to
any supporting documentation. He was not prepared to accept
any
figures that did not correlate with the figures that Mr Muller had
supplied. He stated that he had 22 years' experience of
working in
the system and that the treatment he had been subjected to showed
him that
'any
means'
would
be employed to discredit persons who brought uncomfortable things to
light. He was a victim of such a process, as was Dr
Craven, Mr
Muller and Mr Slinger (the head nurse in charge of the maximum
security prison hospital who had spoken out about the
circumstances
at Pollsmoor before the Parliamentary Portfolio Committee). In the
absence of the original documents from which
the statistics had been
compiled, he was unable to evaluate, or to trust, the figures that
were provided. The original documents
were, however, not produced at
the trial.
[86.] Dr Theron was at pains to
explain that he had no wish to criticise the DCS, he just wanted to
be realistic. He did not have
any personal difficulty with the DCS
and was mindful of the fact that he needed to be careful,
circumspect and guarded in his
evidence, while being objective,
because he was an expert witness. He admonished himself to give the
best account that he could.
His concern was for the truth and he had
to be as balanced in his evidence as he could manage.
[87.] In summary, Dr Theron
stated that:
[87.1] Conditions at the
maximum security prison were conducive to the spread of TB inasmuch
as:
(a) Overcrowding increased the
risk that the disease would spread, because it concentrated and/or
increased the pool of bacteria
emanating from persons suffering from
active TB. Persons subjected to the overcrowding get less rest and
are more pressurised,
so that their immune systems may be negatively
affected, making them more susceptible to becoming ill with TB.
Overcrowding made
it difficult for security staff and for nurses to
get into the back of cells to check on inmates and to administer
medication.
Moreover, it made it difficult for inmates to reach the
doctor or medical clinic, so that patients' symptoms were not
reported
on a daily basis as one would expect;
(b) Adequate nutrition is vital
to maintain the body's immune system and gangs stole food or took it
away;
(c) The indoor environment is
more friendly to TB bacteria, because these bacteria are vulnerable
to sunlight and fresh air. The
most common feature of a cell, apart
from the overcrowding, was that the air was virtually unbreathable
as a result of the smoking
habits of prisoners. In addition to the
smouldering 'hondjies' which polluted the air, prisoners smoked the
short ends of cigarettes
or 'endjies' which tended to emit pungent
and toxic waste into the air. The prevention of smoking and the
provision of proper
ventilation was crucial. On a visit to the
maximum security prison during the course of the trial, Dr Theron
noticed that special
ultra violet lights, which are used to kill
bacteria, had been installed in the TB ward at the maximum security
prison. The installation
of these lamps had been under discussion
whilst he worked at the prison, but had not been introduced at that
time. During the
aforesaid visit, he also noticed that the ward was
better organised, blankets were of good quality and that there was a
well
ordered atmosphere in the ward. He described these as
significant changes;
(d) Bacteria which are expelled
by spitting or coughing land on the floor. Unless the floor is
cleaned immediately with a germicidal
antiseptic, the bacteria
become airborne as the sputum dries out, a process which can, in Dr
Theron's opinion, continue for up
to 2 or 3 months. Spitting was
common, it had not been the habit to clean the cells with a
germicidal antiseptic and Dr Theron's
visits to cells both in the
Medium A and maximum security prisons, revealed that there was no
consistency about hygiene.
[87.2] The control of TB in the
prison was dependant upon the effective screening of inmates upon
their admission so that those
who were ill with TB, or were in
danger of developing TB, could be isolated. Effective screening was
not possible without adequate
numbers of properly trained nursing
staff. Nurses had to be able to perform the screening process when
persons were admitted
to the prison, to advise inmates of the
symptoms of TB, to identify those inmates in the sections who might
have active TB and
to collect sputum for testing. The latter process
required a lot of training and experience. None of these measures
were implemented
in any effective manner during the time that Dr
Theron served at Pollsmoor.
[88.] Dr Theron testified that
screening could not be performed properly by an inmate. It would
even be difficult for a trained
nurse to perform the screening
process adequately, because on average 60 persons would return from
the courts between 5 and 6
pm, which meant that the work had to be
performed in an hour or two. Dr Theron recommended the mass
screening of prisoners from
time to time, because it had been used
in the past as a means of identifying people with active TB. One of
the ways in which
a mass screening could be performed, was by using
a portable X-Ray machine. Such screening never occurred, because
there were
problems in obtaining the particular X-Ray machines and
because the objection was that one would only pick up some of the TB

cases and not all.
[89.] When Dr Theron originally
started working at the prison, a doctor screened prisoners en masse
upon their admission. The
doctor would go from one prisoner to the
next, listening to chest sounds with a stethoscope and would screen
a large number of
prisoners in this manner in a very short time. It
was, however, only possible to do such a screening whilst the
military form
of discipline was applied in the prison. Once the
democratic process was adopted, such screening could no longer be
conducted.
Whereas it was notionally possible for a doctor to line
up every inmate in E-section to check him for TB, such procedure was

not very efficient, would be exhausting for the doctor and would
require good nursing and clerical teams as back-up. If an organised

system had been in place and sufficient numbers of nurses and
security staff had been available it would, however, have been

possible to screen all of the inmates in the prison. One could have
called prisoners out in small groups, could have identified
each one
and could then have checked for TB, much as one would do in triage.
With adequate education, it would have been possible
to produce a
team of qualified people who were able to identify the majority of
TB cases in the prison, which would have facilitated
the gaining of
control over the spread of the disease.
[90.] Dr
Theron stated that if the factors which he had highlighted had been
addressed in a consistent and effective manner, the
incidence of TB
as well as the risk of contracting TB in the prison would have been
greatly reduced. The health system at Pollsmoor
was, however, not
efficient. The doctors as well as the nurses struggled to manage the
situation which Dr Theron described as
x
a
nightmare
that
none of us could wake up'
from.
[91.] Dr Theron conducted a
clinical examination of the plaintiff on 17 November 2009 to
establish whether or not the plaintiff
had suffered trauma as a
result of his arrest and incarceration which contributed to his
vulnerability and subsequent TB infection,
to investigate his
present health and to evaluate his future health prospects relative
to his incarceration experience. He found
that the plaintiff still
suffers from cough with phlegm and wheeze, which signs suggested an
ongoing disability related to the
original TB.
[92.] According to Dr Theron,
the plaintiff did not fit the TB patient profile that he had
developed over the years of his practice.
He explained that every
medical condition that a doctor encounters in practice, including
TB, has a set of guidelines as to the
probability of that condition.
So, for example, males in their mid 40's who complained of swelling
in the inguinal area (the
area next to the scrotum), were likely to
have an inguinal hernia. He could identify persons with a
susceptibility for TB at
a distance, inasmuch as certain clinical
features would suggest that a person either had TB or was in danger
of developing the
disease. Specific features that he would watch out
for were persons who, by their bodily habitus, appeared to be broken
down
in terms of their ability to cope and persons who appeared to
be thin, underweight and undernourished. He had recently seen a
patient who had been referred by the High Court and at a distance of
5 metres identified him as probably having TB. A subsequent
X-Ray
confirmed that the patient suffered from the disease. His profiling
of potential TB patients was nothing other than a clinical

assessment and evaluation of a patient in terms of his risk for
developing TB, just as he would, for example, perform a clinical

assessment of patients in terms of their risk of developing heart
conditions or diabetes, in the course of making a differentiated

diagnosis.
[93.] Dr Theron never saw the
plaintiff before he became ill with TB, but his retrospective
examination showed that the plaintiff
did not fit the TB patient
profile. The plaintiff appeared to have been relatively robust and
well nourished. Dr Theron was of
the opinion that the plaintiff
would not easily have become ill with TB in the outside world, but
that the situation in prison
made him vulnerable to TB. This
assessment was based on his experience as well as his clinical
know-how and expertise.
[94.] Dr Theron agreed with
Prof Van Helden in so far as the latter's report related to
scientific descriptions and standard medical
opinion relating to the
manner in which TB is contracted and spread. Dr Theron also agreed
that infection with the TB bacterium
in the Western Cape commonly
occurs during the first two years of life. Such infection is
referred to as the primary infection/focus
or the Ghon focus (named
after a pathologist, Anton Ghon). He parted company with Prof Van
Helden in so far as the professor
was of the opinion that conditions
in the prison had been ideal. In this regard, he pointed out that
Prof Van Helden himself
made it clear that poverty and similar
socio­economic stress could cause people's immune systems to
break down so that disease
can take hold. Dr Theron also differed
from Prof Van Helden inasmuch as Dr Theron was of the view that
re-activation of sub-clinical
TB which had remained dormant in the
body, is less likely than re-infection, i.e. a fresh TB infection.
Most human beings, however,
have an innate or basic immunity against
TB, as is alluded to in Prof Van Helden's work. Both re­activation
and re-infection
would require a break-down of the patient's immune
system before active disease would result and in Dr Theron's
opinion, the
environment within which the plaintiff found himself in
the maximum security prison, was a factor in him becoming ill with
TB,
inasmuch as the concentration of TB in the environment and the
virulence of the bacteria were important factors in the development

of the disease.
[95.] Prof Van Helden was of
the view that the plaintiff's exposure to TB cases in prison was
probably very low or non-existent.
As is evident from his report, he
came to such conclusion on the basis of information provided to him
by officials of the DCS
to the effect that the plaintiff had been
detained in a single cell for most of the time, that the persons
with whom he shared
such cell did not appear to have active TB at
any stage and that the plaintiff had little contact with other
inmates. Dr Theron
held an opposing view. He testified that from his
experience in walking the corridors of the prison, there were large
numbers
of prisoners moving about. One needs only one person with
active TB to spread the bacteria and it was likely that one would be

exposed to active TB in the course of moving about in the prison.
[96.] Dr Theron emphasised that
the risk of persons being infected with TB bacteria increased in a
closed environment, such as
a prison cell, where there was an
absence of fresh air and sunlight. Bacteria coughed out in a cell
where the air was stagnant
and polluted could drift around for
hours, infecting and reinfecting every person exposed thereto.
Moreover, in prison people
live right next to each other and disease
is accordingly easily spread. For these reasons, he differed from
Prof Van Helden's
view that individuals exposed to active TB
bacteria in open society experienced the same risk as those who were
incarcerated.
Dr Theron held the view that although the TB
guidelines did not require isolation, sound clinical principles
dictated that prisoners
who were ill with TB be isolated at the
onset of the disease and during the infectious stage, because the
closed environment
within which prisoners found themselves, coupled
with the fact that they lived in close proximity to each other,
facilitated
the spread of the disease.
[97.] Dr Theron also took issue
with Prof Van Helden's opinion that active TB cases were moved to a
separate facility which removed
the risk of infection for other
inmates. Dr Theron's evidence in this regard was that prisoners
suffering from active TB were
not effectively isolated from others.
In the hospital section, for example, there were cells which had
been earmarked for isolation
purposes, but if the solid metal door
was shut, the inmate in such cell was unable to have normal contact
with others and did
not have adequate ventilation. In practice
therefore, the solid metal doors were not normally shut and
prisoners in those cells
were separated from others only by a barred
gate. No formal barrier was in place to prevent the spread of TB
bacteria. Dr Theron
also stated that he never saw any single cells
being used for the purpose of isolating inmates, but he could not
categorically
state that this was not done.
[98.] Prof van Helden, in his
expert summary, stated that it was not possible to determine
scientifically whether the plaintiff's
TB episode resulted from
reactivation or reinfection. To the extent that Prof Van Helden
implied that the plaintiff's detention
in prison had nothing to do
with him becoming ill with TB and that the plaintiff's TB just
happened to occur while he was incarcerated,
Dr Theron held a
different view. He referred to a letter published on the internet by
the American Rontgen Ray Society in which
it was pointed out that
recent molecular epidemiologic studies provided definitive evidence
that reinfection contributes substantially
to the TB disease burden.
Studies using a special fingerprinting technique established that
most infections causing active TB
in adults from TB-endemic areas,
represent currently circulating strains that were recently
transmitted. Studies have also shown
that more than 50% of recurrent
disease occurring in endemic settings results from reinfection. Dr
Theron was of the opinion
that the plaintiff's illness with TB
resulted from reinfection, rather than reactivation of an earlier
infection. In his view,
it does not matter much, however, whether
the plaintiff's illness with TB resulted from reactivation or
reinfection, inasmuch
as reactivation normally only occurred in
circumstances where a person's immune system was severely
compromised. Environmental
stressors or pressures could cause the
immune system to break down and, in his view, the peculiar
circumstances of the maximum
security prison caused the plaintiff's
immune system to become compromised, so that he succumbed to the
disease.
[99.] Dr Theron also differed
from Prof Van Helden's view that one could not prevent TB. Dr Theron
stated that one could prevent
TB by applying appropriate measures
such as, for example, screening and the provision of proper
ventilation. As has been alluded
to above, the screening of
individuals would have identified those who were vulnerable to TB
and they could then have been assisted
in becoming less susceptible
to the development of the disease. In this regard, Dr Theron pointed
out that Prof Van Helden is
not a medical doctor and that his
approach is accordingly less practical. Medical doctors have, for
centuries, identified people
who were at risk and have adopted
appropriate measures to minimise such risk.
The Evidence of Dr Craven
[100.] Dr Craven worked at the
maximum security prison from 1988 to September 2003. He was the
doctor responsible for the primary
medical care of all of the
inmates at such institution.
[101.] According to Dr Craven,
disease management was well run when he was first appointed to the
prison. There was an adequate
number of well trained nurses and he
was confident that his requests would be carried out. In the late
1990's, however, the system
slowly started to deteriorate. The
deterioration of the system was an important event, because disease
management is dependant
upon team work and in a prison setting the
team includes nurses as well as warders.
[102.] Eventually, the
deterioration in the management system reached such a stage that Dr
Craven started to keep a daily contemporaneous
record of management
failures or 'derelictions of duty', as he called it. These
derelictions of duty included, for example, prisoners
not being
re-paraded (i.e. brought for follow-up consultation) on due date,
specimens not being collected promptly, laboratory
reports not being
presented to him promptly with the patient's folder so that he could
take action, TB treatment not being supervised
and recorded,
etcetera. Dr Craven made notes of these failures at the time when it
came to his attention in the ordinary course
of his duties. The
notes were made in duplicate and he would leave the top copy at the
prison each day in the hope that management
would take appropriate
action and in order to provide the prison governor (the head of the
maximum security prison, Mr Jansen)
with evidence to motivate for
more staff and fewer prisoners. When he went home, he transferred
the notes he had made to his
computer and for purposes of the trial
he extracted all of the information relevant to the management of
TB. This extract was
attached to the summary of his evidence,
included entries regarding 947 prisoners, ran to 44 pages and
constituted a record of
deficiencies in the management of certain TB
patients and the management of TB in the prison.
[103.] Under cross-examination,
Dr Craven acknowledged that he had not seen the relevant files since
leaving his position at the
prison, that he had no independent
recollection of individual cases and that the context within which
the notes were made, were
of relevance. His notes were somewhat
difficult to interpret when he was in the witness box.
[104.] Dr Craven attributed the
large number of 'derelictions of duty' which he recorded to the fact
that there was a shortage
of staff among warders as well as nurses.
There were simply not sufficient warders to bring persons to the
hospital section and
there were too few nurses to perform the tasks
that were required of them.
[105.] Dr Craven was employed
to work at the maximum security prison for 5 hours per day from
Mondays to Fridays. He admitted
that he sometimes left early for
private commitments and testified that he had in each such case
given advance notice of the
fact. He also sometimes left early when
the noise at the hospital was such that he could not perform his job
and became so irritable
that he would become abusive. He explained
that prisoners were frequently so noisy in the vicinity of the
hospital that he could
not hear a patient's chest or blood sounds,
which impinged upon his ability to treat his patients. He admitted
that he demanded
absolute silence while he was seeing patients and
stated that he was by no means unreasonable to expect silence, it
had been
the norm in the old, military style, of management at the
prison.
[106.] Typically, Dr Craven
would start his day by attending to incoming corres­pondence
such as, for example, laboratory
reports and letters from prisoners,
their solicitors or the courts. He would then attend to any prisoner
who was paraded, i.e.
brought from the section, processed by the
nurses and brought to see him. The nurses would assess any prisoner
who said that
he wished to see the doctor or any prisoner whom they
observed to be obviously injured or ill. As he understood the
system, in
theory a nurse was supposed to go to the appropriate
section each morning to ask if anybody had medical problems and a
nurse
ought to have been available in the afternoons to assess
incoming prisoners who came from the courts.
[107.] In the ordinary course
of performing his duties, Dr Craven would make a note on the
patient's file if he had to come back
for a follow-up consultation.
The nurse would have to work with the relevant warder to ensure that
the patient was re-paraded
on the appointed day. If Dr Craven wanted
samples such as, for example, sputum or blood, to be sent to the
laboratory, he would
similarly make a note in the patient's file and
the nurse would have to collect the specimen and send it off to the
laboratory.
The laboratory sent a runner to the prison on a daily
basis to collect specimens and to deliver reports. It was
accordingly reasonable
to expect a report to be tabled within 2 days
after the date upon which the report had been prepared. It was
important that reports
be presented to him promptly so that he could
take appropriate action at an appropriate time.
[108.] Once the sick parade had
been completed, the prescriptions for medication which Dr Craven had
prepared, would be sent to
the pharmacy so that the medication could
be issued. There was only one pharmacist who was responsible for all
of the prisons
at Pollsmoor, as well as some of the country prisons
and this frequently resulted in the issuing of medication being
delayed.
Even if medication was issued on the same day, prisoners
were locked up at 4 o' clock and sometimes the nurse had gone home
by
then so that prisoners only received the medicine the following
day. Prisoners often complained that they never received the

medication that had been prescribed.
[109.] Dr Craven testified that
the management of TB is different to the management of other
diseases such as, for example, pneumonia,
because TB is a formidable
infectious disease. The law requires that the Medical Officer of
Health be notified and the National
DOH has prescribed guidelines
for the treatment of TB which require that the taking of every
tablet be supervised. The patient
must be watched while taking the
medication, the person supervising must check the patient's mouth to
make sure that the tablets
have been swallowed and must then tick
off the relevant box on the patient's treatment card. In the outside
world, the supervision
is not normally required to be performed by a
nurse. A family member, friend, neighbour or colleague acts as
supervisor.
[110.] Dr Craven testified that
the practice in the outside world is for somebody to visit the home
of a newly diagnosed TB patient
in order to test the other members
of the household for TB. He did not know whether this was done in
the maximum security prison,
but he was aware of the fact that some
prisoners were paraded after having been identified as possible TB
patients by one of
the nurses. On his visit to the maximum security
prison during the course of the trial, he was shown so-called
'suspect registers'
which contained details of persons who had been
suspected of having TB and in respect of whom sputum tests were
obtained. The
registers that he saw, however, related to the time
period subsequent to his employment at the prison.
[111.] Dr Craven corroborated
the evidence of Dr Theron in regard to the manner in which TB is
diagnosed. The first step in making
a diagnosis, involves the taking
of a history to determine what symptoms the patient has noticed. A
clinical examination is then
performed. Such examination consists of
observing the patient to determine whether he is well nourished or
emaciated and whether
he is coughing. The patient's temperature
would be taken and a physical examination would be conduced by,
inter alia, percussion
of the chest and by listening to the chest
with a stethoscope to ascertain whether air was moving in and out of
the lungs on
both sides equally. On percussion a normal chest sounds
hollow and if there is solid material it sounds dull. If air flow is

not equal on both sides, it is indicative of underlying pathology in
the lung. After the physical examination an X-Ray may be taken
and,
if TB is suspected, two sputum samples are obtained which are sent
for laboratory analysis and, if appropriate, culture.
If a prisoner
at the maximum security prison required an X-Ray, he would be sent
to Victoria Hospital as soon as transport and
guarding could be
arranged.
[112.] Dr Craven testified that
his decision whether or not to send an inmate for a chest X-Ray
would depend on the clinical state
of the patient. If he was not
sure that the patient had TB after performing a clinical
examination, he would wait until the sputum
test result was
obtained. If the clinical examination revealed signs of TB, he would
send the patient for an X-Ray straight away.
Likewise, the stage at
which Dr Craven would prescribe medication would depend on the
results of the clinical examination. If
the clinical examination
revealed strong evidence of TB, he would start treatment before the
laboratory results came to hand.
The decision would be made in each
case in light of the patient's condition. Once a prisoner was
diagnosed with TB and received
his medication, he would be sent back
to the section, because the isolation section in the prison hospital
was usually chock-a-block.
Under cross-examination Dr Craven did,
however, concede that TB patients, upon being diagnosed, were
separated as far as was
possible.
[113.] Dr Craven used to visit
the sections in the maximum security prison as part of his public
health inspections. He stated
that there was severe overcrowding, to
the extent that he would regularly see up to 4 prisoners in a cell
designed for occupation
by 1 person and up to 60 persons in a cell
designed for occupation by 20. The cells had narrow slatted windows
along one outside
wall. The door to the cell was situate on the
opposite side of the cell and had a solid steel door as well as a
barred gate or
grille. Once lock down occurred at approximately
16h00, the steel door was closed, so that there was no
cross-ventilation until
such time as the door was opened the
following morning.
[114.] Chapter 2 of the
standing orders provide for the minimum permissible cell area per
prisoner in terms of floor space and
air space. During the visit to
the prison which was conducted by the plaintiff's legal advisors and
experts, Dr Craven measured
some of the cells where the plaintiff
had been detained, more particularly a single cell, an overnight
communal cell where prisoners
were detained when returning from
court and an ordinary communal cell. He then used those measurements
to determine the number
of prisoners which ought to be housed in
those cells according to the standing orders. Dr Craven found that
if one applied the
formulae provided in the standing orders,
different results were obtained depending on whether one had regard
to surface area
or volume. The overnight cells yielded a maximum
capacity of 17 when calculated with reference to surface area and 23
when calculated
in terms of volume. A single cell which had been
occupied by the plaintiff (as well as 2 other inmates) yielded a
maximum of
1 inmate when calculated with reference to surface area
and 2 inmates when calculated in terms of volume and a communal cell

in the section yielded results of 12 and 16 respectively.
[115.] Dr
Craven was referred to a letter under the hand of, inter alia, Mr
Engelbrecht (the Area Manager at Pollsmoor), Mr Jansen
(the head of
the maximum security prison) and Mr Muller, which had been forwarded
to the defendant and the Commissioner of Correctional
Services by
facsimile on 3 October 2003. The subject heading of the letter read:
'POLLSMOOR
A
HEALTH HAZARD FOR WESTERN CAPE'.
The
letter stated, inter alia, that the approved accommodation of the
maximum security prison at 100% occupancy was 1619 prisoners,
but
that the lock-up total for the previous day was 3052 which
constituted 189% occupation. Dr Craven confirmed that he had not

personally verified these figures, but that they were consistent
with his observations. Dr Craven testified that he had visited
other
prisons, such as Goodwood and a privatised prison at Bloemfontein.
What had struck him about both of those, was the lack
of
overcrowding.
[116.] Dr Craven testified that
application of the DOTS system was extremely important, because
prisoners often did not want to
take the TB medication. There were
two main reasons for their reluctance to take the prescribed drugs.
Firstly, nausea was a
common side effect of the medication and
secondly, prisoners frequently did not understand the need to take
the medication. As
far as they were concerned, they were not ill,
they simply had a cough. Failure to take the medication for the
prescribed period
caused patients to suffer a relapse which, in
turn, caused them to become infective again and, in addition, could
lead to them
developing MDR-TB which was extremely difficult to
treat.
[117.] Dr Craven expected the
administration of the TB medication in prison to be performed by a
nurse. Indeed, he expected the
nurse to issue the tablet, to give
the patient a glass of water, to watch the patient swallow the
tablets, to inspect the patient's
mouth and then to tick off the box
on the treatment card and on the hospital folder. Treatment also had
to be recorded in a treatment
register which was held in
quadruplicate. The bottom copy was retained in the clinic and one
copy was to be sent off to the Medical
Officer of Health. In many
cases, however, Dr Craven found that the documents which were
supposed to have been forwarded to the
Medical Officer of Health
were still in the register. The DOTS system was also not applied
consistently. So, for example, treatment
cards were sometimes
completed in advance of the medication having been supplied, or
subsequent thereto and sometimes patients
did not receive their
medication at all. Rifampicin, one of the drugs contained in the
standard treatment, colours the urine
bright orange and Dr Craven
accordingly checked patients' urine to ascertain whether or not they
had taken their medication.
[118.] Under cross-examination
Dr Craven had to concede that although Rifampicin can be detected in
the body by chemical means
for up to 24 hours, he could not find any
information indicating for what period of time after taking the
medication a person's
urine would be orange. The colour of the urine
would depend upon the particular patient's metabolism, the time when
the medication
had been taken and the food which had been consumed.
The colour of a person's urine was accordingly not necessarily a
reliable
indicator as to whether or not the medication had been
taken. Dr Craven, however, pointed out that his observations of a
patient's
urine not being orange, had to be seen against the
background of a large number of patients whose urine was orange.
[119.] Dr Craven also conceded
in cross-examination that not every management failure or
'dereliction of duty' necessarily resulted
in harm to a particular
prisoner or to the prison population at large. Indeed, in some
instances patients who had on occasion
ostensibly not received their
medication, were eventually cured of TB. An unsatisfactory level of
care would, however, have resulted
in inadequate treatment of
persons who were ill with TB so that the plaintiff would have
inhaled far more bacteria than he would
have in the outside world.
Dr Craven's opinion in this regard was based on his practice of
medicine over 30 years and the period
of 16 years during which he
had worked at the maximum security prison.
[120.] Dr Craven further
conceded that it could not be said that there was no functioning
medical system at the maximum security
prison during the period 1999
to 2003. There was a system and sometimes it worked, while at other
times it did not. He saw it
as his ethical duty to get the system
improved and that is why he made representations to a variety of
people, including the
Parliamentary Portfolio Committee.
[121.] Dr Craven agreed that
the nurses, despite being understaffed, prioritised chronic
illnesses, TB and attending to dressings.
He also agreed that some
pro-active screening of potential TB patients did take place.
Indeed, he was prepared to accept that
persons with persistent
coughing were offered a TB test by the nurses, when it was put to
him that Gertse would testify to this
effect. Dr Craven, however,
testified that he never saw any 'suspect registers' while he was
employed at the maximum security
prison and did not know that such
registers existed.
[122.] Dr Craven agreed with Dr
Theron that certain people are at risk for becoming ill with TB,
notably persons of the lower
social orders such as the unemployed,
poverty stricken, homeless and vagrants. The reason why these people
are more susceptible
to TB, is because they are often malnourished
and tend to live in overcrowded flats or shanties one on top of the
other. Dr Craven
also explained that persons of the lower social
orders often only see a doctor once they have been ill with TB for
some considerable
time, because people who live in overcrowded
conditions and who smoke, frequently cough and do not regard a cough
as pathological.
Therefore, they do not seek medical help until such
time as further symptoms have presented such as, for example,
substantial
weight loss, coughing of blood, or night sweats.
[123.] Dr Craven confirmed that
most people in South Africa inhale TB bacteria in early life. Those
who subsequently become ill
with TB either suffer a re­activation
of the bacterium which had been inhaled earlier, or become
reinfected when a fresh
dose of the TB bacterium is inhaled. There
is a difference of opinion in medical circles as to whether
reinfection is more common
than reactivation.
[124.] As far as the plaintiff
himself is concerned, Dr Craven confirmed that he saw the plaintiff
on the morning after the latter's
admission to the maximum security
prison, i.e. on 23 November 1999. He was concerned about the
plaintiff's ischaemic heart disease,
advised him to stop smoking and
to lose weight and ordered that the plaintiff receive half rations.
Thereafter, he saw the plaintiff
from time to time when the latter
had medical complaints and he ordered appropriate treatment.
[125.] On 14 April 2003 the
plaintiff complained of TB symptoms and sputum samples were taken
which produced a negative result.
On 20 May 2003 the plaintiff
complained that he had not received his chronic medication for a
period of 3 weeks and on 27 May
2003 the plaintiff presented with an
inguinal hernia, which was a surgical emergency. Dr Craven ordered
his immediate removal
to Victoria Hospital. He saw the plaintiff
again on 2 June 2003 after his discharge from Victoria Hospital,
when it was reported
that the plaintiff had pulmonary TB. Dr Craven
ordered that sputum samples be taken, that the plaintiff's X-Rays be
obtained
from Victoria Hospital, that the plaintiff be admitted to
the hospital section and be seen again in 8 days' time. On 3 June
2003
Dr Craven saw the X-Ray which had been taken, which showed that
the plaintiff had bilateral infiltration and cavities in the lungs,

which was indicative of TB.
[126.] On 9 June 2003 Dr Craven
received a laboratory report which indicated that both of the
plaintiff's sputum samples tested
positive for TB. On the strength
of the positive sputum tests, Dr Craven ordered that the plaintiff's
illness with TB be reported
to the Medical Officer of Health, that
the plaintiff be started on the standard treatment for TB, Regimen
I, and that the plaintiff
be given double rations. The plaintiff
started his TB treatment on 10 June 2003 and was sent back to his
section, because it
was not logistically possible to isolate him, no
space for isolation being available. On 18 June 2003 the laboratory
reported
a positive culture, which confirmed the diagnosis of TB
which had been made and on 14 August 2003 a further laboratory
report
was obtained which showed that the bacteria were sensitive to
Regimen I. The last time Dr Craven saw the plaintiff in prison was

on 19 September 2003.
[127.] Dr Craven testified that
the measures which were required to control the spread of TB at the
prison included the following:
[127.1] Separating prisoners
who had active TB from the general prison population;
[127.2] Having a sufficient
number of properly trained nurses available who had knowledge of the
basic management of TB, the testing
for TB and the treatment of TB,
so that TB cases could be promptly diagnosed and treated, thereby
reducing the number of TB bacteria
in the environment;
[127.3] Proper application of
the DOTS system, that could easily have been achieved by the nurses.
Warders could have been asked
to assist in this regard;
[127.4] Reducing the
overcrowding of cells;
[127.5] Increasing the number
of nurses;
[127.6] Imposing and
maintaining discipline.
[128.] In regard to the
necessity for discipline, Dr Craven testified that in a disciplined
situation prisoners did what they
were told, warders and nurses did
what they were told and prisoners received their prescribed
medication. In a controlled environment
such as the prison, if a
doctor ordered the isolation of a prisoner, the prisoner would be
isolated and if a logistical problem
arose in this regard, the
problem would be discussed between the warders or governor and the
doctor and efforts would be made
to resolve it. In fact, during the
previous military style of management, this was exactly what
happened.
[129.] In Dr Craven's opinion,
the failure to manage TB in the maximum security prison in
accordance with the guidelines of the
DOH would have caused, or
contributed to, the plaintiff becoming ill with TB. Such failure
would have increased the number of
bacteria per cubic metre of air
and the plaintiff would accordingly have inhaled more of the TB
bacteria than he would have in
the outside world. The increased dose
of bacteria, in other words, would have increased his chances of
becoming infected with
TB if he had not been infected previously and
would have increased the risk of any dormant TB bacteria becoming
re-activated,
thereby leading to the plaintiff becoming ill with the
disease.
[130.] Dr Craven was asked to
comment on the plaintiff's evidence that he had gone to court on
some 70 occasions, whereafter he
was usually placed in a communal
cell with other prisoners until the following day. Dr Craven
testified that in theory when prisoners
came back from the courts,
newly arrived prisoners, i.e. those who came into the prison for the
first time, ought to have been
separated from existing inmates. In
practice, however, he believed that this had not been done for
logistical reasons.
[131.] Dr Craven conceded that
while the plaintiff was detained in a single cell his exposure to TB
bacteria would have been less
than if he had been in a communal
cell. However, the plaintiff would still have been exposed to
bacteria drifting in the passage
on his way to the shower.
[132.] Dr Craven was unable to
comment on the day-to-day system which the nurses adopted in seeing
patients in the sections and
on whether or not a nurse conducted
screening of incoming prisoners, because he had no personal
knowledge of these events. Dr
Craven only heard of a computerised TB
monitoring system at the maximum security prison during the course
of the trial, when
he was shown an extract from the computerised
record. He also saw the TB-wheel, which the nurses used to monitor
treatment of
TB patients, for the first time when he was in court.
[133.] As was the case with Dr
Theron, Dr Craven made many written and verbal recommendations
through the appropriate channels
to the governor of the maximum
security prison, to the Minister, to the Provincial DOH, the
Inspecting Judge of Prisons, the
Medical Officer of Health, the
Medical Association and to the Parliamentary Portfolio Committee.
These recommendations related
to the employment of additional
warders and nurses, the reduction of the number of prisoners and the
imposition of better discipline.
[134.]
Shortly before he was called to testify, Dr Craven became aware of a
letter which the Defendant had written to the Commissioner
of
Correctional Services dated 4 October 2001 which referred to the
report which Dr Craven had provided to the Parliamentary
Portfolio
Committee and certain correspondence which had been exchanged
between various officials in the Department as a consequence
thereof
(Exhibit H). In his letter, the defendant, inter alia, instructed
\he
Acting Provincial Commissioner, Mr Nxele, the Area Manager at
Pollsmoor, Mr Engelbrecht and the entire Pollsmoor Management
to
treat this health problem as a matter of extreme urgency'
and
stated
'This
horrendous situation as reported must not be allowed to continue any
(sic)
day
further, particularly where the Management has the powers to take
immediate remedial steps.'.
In
a letter dated 9 October 2001 written by the Commissioner of
Correctional Services, Mr Mti, to the Acting Provincial
Commissioner,
Mr Nxele, the former stated
'If
the situation as described by Dr Craven, is not addressed, we are
heading for an unprecedented catastrophe. I urge you to
place the
matter at the top of your priorities and
(sic)
report
back to me before the end of October 2001.'
[135.] Despite the serious
tenor of the aforesaid letters, Dr Craven testified that no visible
improvement was brought about in
the health service at the maximum
security prison. Although he had made many representations aimed at
improving the health care
system, nobody liaised with him, or sought
his advice in this regard. Instead, he was dismissed by the
Provincial DOH and testified
that his dismissal had been called for
by the DCS. He subsequently took his case to the Labour Court and
was reinstated. Pursuant
to such reinstatement, he has been working
at the Lady Michaelis Hospital.
[136.] Dr Craven could not
recall a visit to the Pollsmoor Prison complex by the Director of
Health and Physical Care and the
Provincial Heads of the Health Care
Service during March 2001. He saw the report which had been drawn
subsequent to such visit
for the first time while he was in the
witness box.
[137.] In dealing with TB
statistics at the maximum security prison, Dr Craven was referred to
a schedule covering the period
1998 to 2009 which had been prepared
by the authorities at the prison. Dr Craven drew attention to the
fact that the copy of
the actual registers which had been provided,
clearly showed the schedule to be incorrect. So, for example, the
total number
of TB cases for 2001, according to the register, was
177 whereas the schedule referred to only 69 cases. The schedule was
also
patently incomplete inasmuch as no figures were provided for
certain months, such as, for example the months of April to October

in 2001.
The Evidence of Mr Gertse
[138.] According to Mr Gertse,
the DCS uses three categories of nurses - assistant nurses, staff
nurses and professional registered
nurses. Each of the 5 prisons at
Pollsmoor has its own hospital and each has its own health care
personnel consisting of clerks,
nurses and a doctor. During the time
of the plaintiff's incarceration, a total of 4 doctors were employed
on an agency basis
and they worked in the mornings up to lunch time.
Nurses worked day shifts from 07h00 to 16h00.
[139.] From 2001 to 2003 the
head nurse was Mr Slinger. He was in charge at the maximum security
prison and had an office in the
hospital. His second in command was
Mr Hillier, who worked in the hospital itself, as did Sister Ndzabe.
Mr Erasmus was the nurse
in E-section, Mr Tiervlei was in D-section
and Mr Sibeko, who was a staff nurse, was in charge of C-section.
A-section was headed
by Mr Aysley and Mr Van Staden used to work in
the hospital section, but the latter moved to the medium B prison.
Mr Gertse worked
at B-section. The nurses were assisted by 4 clerks
and approximately 4 nurses from an agency, who were employed on a
temporary
basis.
[140.] Mr Gertse testified that
the health system at the maximum security prison is nurse-driven,
with a doctor providing support.
In practice, that means that all
cases have to be seen by nurses and that only those cases which are
not within the nurses' scope
of practice are seen by a doctor.
[141.] In the ordinary course,
nurses came on duty at 07h00. The nurses would gather in Mr
Slinger's office in order to share
information relative to the day's
programme, whereafter medication would be collected from the store.
Each prisoner's prescribed
medication would be placed in a separate
plastic bag. 'Pill parade' would then be conducted in the sections.
There was a sub-clinic
for each floor so that sections E1, E2 and
E3, for example, would share one clinic on E-floor, such clinic
being conducted in
a cell reserved for this purpose. For purposes of
pill parade, each nurse was provided with a special trolley, which
was divided
into compartments into which each prisoner's medication
was placed, a ringbinder containing copies of the relevant
prescriptions
and a medicine administration card for each inmate on
which details of the medication administered, had to be recorded.
Once
the card was full, it would be placed into the person's
hospital file. In addition to the prescribed medication, the nurse
handed
out ordinary over-the-counter type medication such as Panado,
cough mixture, foot powder, ointments, bandages and plasters.
According
to Mr Gertse, all prisoners except those who were in
hospital, received their medication in the sections during pill
parade.
So-called 'ward stock' consisting of Panado, bandages,
ointments and the like were kept in the cell where the clinic was
conducted.
[142.] Mr Gertse testified that
a warder would normally record prisoners' complaints in a complaints
book. Inmates who had medical
complaints would be sent to the nurse
in the section for assessment. The nurse would hand out medication,
if appropriate. If
the prisoner's complaint fell outside of the
scope of the nurse's practice, he would be referred to the doctor in
the hospital
section. A particular day of the week was reserved for
inmates of each section to visit the doctor. If a medical emergency
arose,
an inmate would, however, be sent through to the hospital
immediately.
[143.] During a special course
in the management of TB which Mr Gertse completed in 2003, he was
taught the signs and symptoms
of TB and received training around the
taking of sputum samples which had to be sent to the laboratory for
analysis in order
to make a diagnosis. Mr Gertse stated that once
the doctor had prescribed the applicable TB medication, it was the
responsibility
of the nurse to manage the treatment. The TB-wheel
was used as an aide for the nurse to calculate when follow-up sputum
tests
had to be conducted and to monitor the nature of the
medication that had to be administered. After the first two months,
or the
intensive phase, of the treatment the patient's medication
would be adjusted. The nurse was responsible for handing the
medication
to the patient and for marking off the applicable box on
the patient's treatment card. Mr Gertse said that he did not know
that
the infectious phase of the disease, according to the doctors,
lasted for a period of two weeks after treatment started.
[144.] Mr Gertse testified that
the doctors saw patients in the hospital section and that they did
not go to the sections where
the inmates were housed. The doctors
did not know what the tasks were that the nurses had to perform.
[145.] In regard to the
screening of prisoners, Mr Gertse testified that offenders coming
into prison from the courts would wait
in the yard outside the
prison building to be counted. The nurse on night duty would ask
whether there were any medical complaints
and the names of those who
said they did, were noted. Prisoners would thereafter be called to
enter the building individually
in order to be searched, whereafter
they would be detained in a holding cell. Ordinarily prisoners could
not be taken back to
the sections, because the last vehicles only
returned from court at around 18h00 or 18h30 and by that time the
cells had been
locked down. The night nurse would receive a printout
containing the names of persons who had been admitted to the prison
and
would then go to the holding cells to deal with medical
complaints. Minor complaints would be dealt with there and then and
prisoners
who had more serious complaints would be sent to the
hospital so that the doctor could see them the following day. If
there was
a medical emergency, the prisoner would be sent to
Victoria Hospital. The following day, returning prisoners would be
taken back
to their cells and new arrivals would be screened by the
nurses in the court yard at the hospital section.
[146.] Mr Gertse was referred
to the forms (Exhibits O and P) which had to be completed during the
screening process when persons
first entered the maximum security
prison. He could not explain why certain prisoners who had
ostensibly been allocated to a
particular section had apparently not
been screened, because their details did not appear on the form. It
is also not clear from
Mr Gertse's evidence when these forms were
completed. In his evidence in chief he testified that prisoners'
names were recorded
on computer as they came into the system, prison
numbers were allocated to them and their medical complaints were
noted. The
computerised record would be printed as soon as all of
the prisoners who had arrived from court were inside and the list
would
then be given to the nurse. His answer clearly suggested that
the form was completed that evening. Under cross-examination,
however,
he stated that prisoners' medical details were only filled
out on the form when they were screened at the hospital the
following
day. He then, for the first time, stated that there was a
separate book in which the names of persons who had medical
complaints
would be noted upon admission and that such book would be
given to the hospital the following day.
[147.] Mr Gertse testified that
the maximum security prison relied on a self-reporting system in
terms whereof inmates had to
take the initiative and had to report
if they were ill or required medical assistance. Such system also
applied in instances
where inmates suspected that they might have
TB. Inmates' complaints would be lodged with a warder, who would
make a note in
the complaints register. Either the inmate or the
warder could then bring the complaint to the attention of a nurse.
If TB was
suspected, the inmate would be requested to provide a
sputum sample in the presence of the nurse and the latter would note
such
procedure in the suspect register which, according to Mr
Gertse, was already being used when he first came to Pollsmoor in
2001.
If the sputum test yielded a positive result, such fact would
be noted in the suspect register and the report would be forwarded

to the doctor. Negative results were similarly noted in the suspect
register, but the reports in such cases would not be forwarded
to
the doctor. The inmate would be informed of the negative rest result
and would be advised to return in 6 months' time for
a further
sputum test. Only if a prisoner persisted in complaining after a
negative result had been obtained, would he be referred
to the
doctor so that the latter could decide whether or not he needed to
be referred for X-Rays.
[148.] When asked why Mr
Muller, Dr Theron and Dr Craven appeared to have been unaware of the
existence of the suspect register,
Mr Gertse testified that Mr
Muller was not working inside the maximum security prison, he had an
office outside of the admission
centre and he only worked in the
maximum security prison over week-ends. Drs Craven and Theron did
not know about these registers
and never asked to see them, but the
nurses were told to keep the registers during their training.
Although Mr Gertse testified
that suspect registers were used during
the time when the plaintiff became ill with TB, he stated that he
could not find these.
[149.] Mr Gertse testified that
once an inmate had tested positive for TB, he would be seen by the
doctor, who would issue a prescription
for the required medication.
The doctor would make a note of the medication required, e.g.
Regimen I, on the hospital file, as
well as a note that the person
had to receive double rations. The nurse would fill out the green
patient treatment card as well
as the blue hospital card and would
immediately start the medication. If the person was very ill, he
would be admitted to hospital,
but otherwise he would be sent back
to one of the single cells reserved for isolation in the sections.
After a period of two
weeks, when they were no longer infectious,
inmates would go back to the cells which they normally occupied. (Mr
Gertse's evidence
in this regard clearly implied knowledge of the
fact that persons were still infectious during the first two weeks
of treatment
and contradicted his earlier evidence in this regard.)
[150.] Under cross-examination
Mr Gertse was referred to Chapter 7 of the TB guidelines which
contains a diagram indicating that
broad spectrum antibiotics ought
to be prescribed for 7 days and that repeat microscopy was indicated
in instances where both
sputum tests yielded negative results, but
the patient's condition failed to improve. Mr Gertse stated that
inmates who continued
to complain after negative results had been
obtained, would be given cough mixture and would be referred to the
doctor the following
day. The doctor would then decide what had to
be done. However, he subsequently conceded that the prisoner would
only be referred
to the doctor at some later stage if the cough did
not stop once the cough mixture had been used and that the
particular prisoner
would not be isolated in the interim.
[151.] In cross-examination Mr
Gertse was also referred to the provisions of clause 7.1.15 of the
standing orders which provides
that prisoners who are suspected of
having a contagious disease, such as TB, should be kept separately
from healthy prisoners
until such time as the attending medical
officer has certified that they no longer pose a threat to the
health of others. Mr
Gertse confirmed that persons whose names were
included in the suspect register were not isolated prior to starting
treatment.
[152.] According to Mr Gertse,
the first three single cells in a section would normally be
allocated to isolation. The single
cell in which the plaintiff had
been detained, was further down the corridor. He conceded that the
plaintiff had not been isolated
while he was in the hospital
section, but said that the nurse in the section was responsible for
isolating him. Mr Gertse differed
from Mr Muller's evidence that
isolation was often not possible because the prison was overflowing.
He said that people went
in and out all of the time and that he
tried his best to isolate people who tested positive for TB.
[153.] Mr Gertse testified that
the DOTS system was applied when prisoners had to take their TB
medication. The inmate had to
take the medication in the presence of
the nurse, the nurse would check that the medication had been
swallowed and the inmate
would in fact be asked to make a special
click with his tongue which would ensure that the medication was
swallowed. The nurse
would then tick off the applicable box on the
blue hospital card.
[154.] In cross-examination, Mr
Gertse was also confronted with the fact that the plaintiff's TB
hospital card reflected that
he had been observed taking his
medication on days when he had appeared in court and that he could
not have been so observed.
He then conceded that the nurse would
tick off the card even if he/she had not observed the taking of the
medication as was required,
in instances where the prisoner was
trusted to have done so. He identified the signature at the foot of
the hospital card as
that of Mr Slinger, the head nurse at the time.
He acknowledged, however, that Mr Slinger was not the person who
would have administered
the plaintiff's medication, it would have
been Sister Ndzabe or Mr Erasmus and identified the handwriting on
the front of the
hospital card as that of Sister Ndzabe. When it was
pointed out to him that Sister Ndzabe worked in the hospital and not
in the
sections, he said that she would check with Mr Erasmus, who
performed the pill parade in the section, each day and would then
tick off the card. Mr Gertse subsequently changed his evidence in
this regard again and stated that Sister Ndzabe and Mr Erasmus
both
ticked off the card.
[155.] Mr Gertse testified that
a computerised record is maintained at the maximum security prison
in order to record reportable
diseases and that this system had
already been in place when he first started working at Pollsmoor.
The information recorded
on the system includes the inmate's name,
prison number, date of birth, diagnosis, date of diagnosis, date
when the illness was
reported to the DOH, the place and source of
infection and the preventative measures taken. He stated that is
possible to extract
information from this data base in regard to the
number of TB cases which were reported at the prison in any given
year. A monthly
report would in fact be sent off to the Provincial
office of the DCS. No extract from such data base was, however,
submitted
in evidence.
[156.] According to Mr Gertse,
there was a good relationship between the warders and nurses and
nurses had no difficulty gaining
access to the sections. Ordinarily,
however, nurses only went into the cells if a prisoner was too ill
to walk to the sub-clinic
in the section.
[157.] Mr Gertse stated that he
did not see Dr Theron in the hospital and that the latter did not
work in the sections.
[158.] Mr Gertse contradicted
Dr Theron's evidence that the number of nurses at the prison at one
stage dropped to only 2. According
to Gertse, that was never the
case. At the maximum security prison, there were always at least 5
to 6 nurses on a daily basis
and the only time when there might have
been only one or two nurses on duty would have been if there was a
team building session.
Team building sessions, however, were held
after parades at around 13h00 or 14h00 and, according to Mr Gertse,
most of the time
offenders were locked up by 14h00. Although he
admitted that there was a shortage of nurses to the extent that the
actual staff
complement was only approximately 50% of the number of
approved posts on the staff establishment, he denied that such
shortage
was severe. He was, however, eventually constrained to
admit that there were barely enough nurses to staff the hospital and
the
sections, that there were days when there were not enough nurses
to do the work in the sections and that the warders then had to

bring the prisoners to the hospital.
[159.] With reference to the TB
registers which Dr Theron alleged had not been properly kept, Gertse
testified that the registers
were kept and that neither Dr Theron
nor Dr Craven ever looked at these. Gertse also denied that the
health system in the maximum
security prison had broken down, as was
alleged by both Dr Theron and Dr Craven. Under cross-examination, Mr
Gertse alleged that
at some stage a TB blitz' was conducted when the
nurses went from section to section to take sputum samples from any
prisoner
who wanted to be tested for TB. (This evidence had not been
put to either the plaintiff or any of the witnesses who testified on

his behalf.) When plaintiff's counsel referred him to the fact that
the TB guidelines prescribed the taking of sputum samples
on two
consecutive days, Mr Gertse, for the first time, alleged that
samples were in fact so obtained.
[160.] Mr Gertse testified that
Dr Craven insisted on absolute silence, because he could not assess
patients if it was too noisy.
At times when it was too noisy, Dr
Craven would leave early. Sometimes Dr Craven would have long talks
with some of the patients
which resulted in him not having time to
attend to all of the prisoners who needed to see him before he
knocked off. Mr Gertse
did, however, confirm that Dr Craven made
notes of things that had not been done and that he would leave a
copy of such notes
on the desk of Mr Slinger, the nurse in charge of
the maximum security hospital.
[161.] As regards the after
hours nursing service, Mr Gertse testified that a nurse had to be on
standby at the Pollsmoor premises
from 16h00 until 07h00 the
following day. If the nurse on standby did not live on the premises,
he/she had to come in to be there
physically. The after hours shift
was divided into first watch, from 16h00 to midnight, and second
watch, from midnight to 07h00.
During first watch the nurse would
have to see all of the new prisoners who came in from the courts and
after that the same nurse
would be on standby for calls to any of
the prisons on the Pollsmoor premises until 07h00 the following day.
[162.] After hours, if a
prisoner complained to the warder on duty in his section that he was
not feeling well and needed to see
the nurse, the warder would
inform the person in charge that a nurse was required. The nurse who
was on standby would be called
to see the inmate concerned. This was
the case even if a prisoner complained of a headache. If the
prisoner who complained of
the headache was in one of the communal
cells, the warder on duty in that section would call the warders on
duty in the other
sections of the prison to assist in taking the
particular prisoner out of such cell, because there was only one
warder on duty
in each section after hours.
[163.] Mr Gertse denied that
one of the inmates, Trevor (Blignault), conducted the screening of
prisoners on admission, as was
alleged by the plaintiff. He
testified that Trevor used to assist in writing out the prison card
which is handed out to each
unsentenced prisoner.
The Evidence of Prof Van
Helden
[164.] Prof Van Helden
testified that 65% - 80% of adults in South Africa are thought to be
infected with TB, which means that
they are at risk for developing
the disease. However, not all of the people who have been infected
with the bacterium become
ill. Only approximately 10% of people who
have been infected with the TB bacterium, develop infective disease.
South Africa,
however, has one of the highest incidence rates of TB
in the world (600 per 100,000 persons per annum) and in certain
areas of
the Western Cape the figures are higher. In Khayelitsha,
for example, Medicines Sans Frontiers have measured 1600 per
100,000.
[165.] According to Prof Van
Helden, the annual risk of infection in South Africa has been
measured and estimates of between 3.5
and 4.8% have been made. In
his opinion, the true risk is higher. The proportion of people
infected in some communities - Ravensmead
and Masiphumelele - has
been measured using the skin test referred to above and it has been
shown that 52.5% of children in the
age group between 14 to 17 have
been infected. There is accordingly less than a 40% chance that an
adult South African has not
been exposed to TB infection by age 53
(the age at which the plaintiff came into the prison).
[166.] Under cross-examination,
Prof Van Helden stated that the annual risk of infection as
aforesaid had been calculated by testing
children between the ages
of 5 and 7 in Ravensmead and Masiphumelele (Ravensmead is one of the
former so-called 'Coloured Townships',
one of the less affluent
communities in the Bellville area and Masiphumelele is an informal
settlement near Kommetjie). He conceded
that one would expect a
higher rate of infection and possibly a higher rate of disease in
lower socio­economic groups such
as those. Children in
Constantia, Bishops Court or Plumstead (upper and middle class
suburbs in Cape Town) have not been tested
and the 3.5% or 4.8% risk
of infection would almost certainly not be applicable in those
areas. Persons who live in middle and
higher socio­economic
classes generally have a lower incidence of TB. Prof Van Helden
would, however, not concede that persons
living in the middle and
higher economic classes would be less represented in the overall
group of 10% of infected persons who
actually became ill with the
disease. In this regard, he stated that whether or not a person
becomes ill with the disease, depends
on genetic factors and
inherent susceptibility. His reasoning in this regard is clearly
flawed inasmuch as it does not take into
account that on his own
evidence far less people from the more affluent communities would be
included in the pool of persons
who had been infected with TB.
[167.] The research which has
been done by Prof Van Helden's unit has shown that persons who have
had active TB are innately susceptible
to the disease and that their
risk of developing the disease again is 4 to 7 times higher than
that referred to above.
[168.] As regards the
difference between reactivation and reinfection, Prof Van Helden
testified that if a person has a recurrent
episode of TB, one would
not ordinarily know whether it has been caused by reinfection or by
reactivation. If a period of more
than 2 years has elapsed after the
first episode of TB disease, it is usually referred to as a case of
reinfection. In the plaintiff's
case, it was not possible to state
unequivocally whether his TB episode resulted from transmission in
prison, or from reactivation
of previous infection whilst he lived
in open society. One of the studies which was referred to in a
publication in which Prof
Van Helden participated, however, found
that 56% of active disease episodes in that study community could be
ascribed to recent
transmission.
[169.] Whilst Prof Van Helden
was critical of certain portions of the article, Exhibit E, he
agreed that in high endemic societies,
such as Khayelitsha, most
infections causing active TB in adults, represented currently
circulating strains of TB that were recently
transmitted. He also
agreed that in all likelihood, ongoing transmission causes repeated
episodes of infection.
[170.] Prof
Van Helden pointed out that it was not known whether or not the
plaintiff had been infected with the TB bacterium
prior to his
admission to prison. Inasmuch as there was no evidence that the
plaintiff had not been infected prior to entering
prison, Prof Van
Helden stated that he probably fell into the category of persons who
had already been infected, because 80%
of adult South Africans have
had exposure to the bacterium. Indeed, Prof Van Helden stated that
the chances of plaintiff having
been exposed to TB bacteria prior to
entering the prison were 'exceptionally
high',
because
South Africa has the dubious distinction of having one of the
highest incidences of TB in the world. Under cross-examination,

however, it transpired that Prof Van Helden had been unaware of the
fact that the plaintiff had been detained in the maximum
security
prison for approximately 3 years before he developed the disease and
that he had accordingly not taken such fact into
account in arriving
at his conclusions.
[171.] Prof
Van Helden stated that the plaintiff's exposure to active TB cases
in prison was probably
'very
low or non-existent'.
His
reasons for coming to this conclusion were the following. Mr Gertse
had informed Prof Van Helden that the plaintiff had mostly
been kept
in a single cell, which he shared with persons who had not had
active TB at any stage; that inmates in single cells
were let out to
fetch food twice per day before inmates from communal cells were
released and that the plaintiff stayed in the
prison hospital for
some time. Prof Van Helden accordingly surmised that plaintiff's
exposure to other inmates was low in numbers
and short in time, so
that his exposure to TB cases would probably have been very low.
Prof Van Helden had also been informed
that inmates who were
diagnosed with TB received prompt treatment and knew that when
patients received the prescribed treatment,
they became less
infectious quite rapidly. The aforesaid information and knowledge
led him to believe that even if the plaintiff
had been exposed to
persons regarded as active with TB after they had been on therapy,
those persons were probably not infectious.
[172.] Prof Van Helden was of
the view that the plaintiff had received the best standard of care
that was possible in South Africa.
He was immediately placed on
appropriate therapy once the positive result of the sputum test was
obtained and there was no delay
pending the result of the culture.
He received the full recommended amount of his medication regularly
and for the required period
of time. Indeed, Prof Van Helden stated
that in his view the standard of care in the prison was better than
that in the outside
world. He based this conclusion on information
provided by Mr Gertse that prisoners who had been diagnosed as being
ill with
TB were all moved to a separate facility, which removed the
risk for others, whereas in the outside world TB patients usually
remained at home with their families. He was, however, constrained
to concede that inmates could nevertheless become infected
through
contact with fellow prisoners who had become ill with the disease
but had not yet been diagnosed and that the plaintiff
could have
been infected with TB if he had been in close proximity with
actively ill people. Prof Van Helden, however, held to
the view that
individuals exposed to persons with active TB in open society
experienced the same risk. He also conceded that
if isolation cells
were not sealed off from the main area or section of the prison, it
would be undesirable.
[173.] Prof Van Helden was
sceptical about Dr Theron's TB patient profile' and the latter's
statement that the plaintiff did not
appear to fall into the
category of people who were likely to develop TB. Prof Van Helden
stated that Dr Theron's observations
in this regard had not been
peer reviewed, that he had not heard of such a profile and that even
a top class athlete could develop
TB if he/she had the wrong genes.
He doubted that one would be able to recognise a candidate for TB at
a distance and did not
think that one's mental attitude would affect
one's susceptibility to the disease. Prof Van Helden, however,
agreed with Dr Theron's
evidence that stress affects the immune
system and that prison presents a stressful environment. He also
conceded that he is
not a clinician and that he has never diagnosed
any person who had active TB.
[174.] Prof Van Helden conceded
that in areas with poor ventilation, TB bacteria which had been
expelled could drift around and
would possibly remain alive for
hours. He also conceded that in overcrowded communal cells the
chances of somebody being infected
with TB bacteria that were
coughed up were much higher than it would be in a cell which was not
overcrowded. The risk was also
present when prisoners lined up in
the passage to go out for exercise. In short, if one was in any area
with a high concentration
of TB bacteria, the risk of becoming
infected was higher.
[175.] Prof Van Helden further
conceded that he had not visited the prison to familiarise himself
with conditions and that he
had formulated his opinions on the basis
of information given to him by Mr Gertse and others, which he
assumed to be true.
Evaluation of the Evidence
[176.] The plaintiff clearly
did not always listen carefully to the questions that were put to
him, with the result that his answers
were not always germane to the
issue and questions often had to be repeated. This fact was
particularly apparent when he was
cross-examined about the duration
of his admission to the prison hospital and the corresponding notes
in his medical file. At
times, he was somewhat long winded and
appeared to become confused about events during the period of his
incarceration.
[177.] Given
that prisoners who were awaiting trial spent approximately 23 hours
out of every 24 in their cells, there must clearly
have been little
to distinguish one day from another. Indeed, the plaintiff himself
said that one day was much like the next.
The plaintiff spent
approximately 4
1
/2
years
in prison awaiting trial and attended court on approximately 70
occasions during that time. In these circumstances it does
not
appear to me to be surprising that the plaintiff became confused at
times.
[178.] It was readily apparent
that the plaintiff feels aggrieved by the fact that he was
incarcerated and that his imprisonment
resulted from what he regards
as trumped up charges. However, he blames his incarceration on the
investigating officer and not
on the defendant, or the latter's
officials/employees. The plaintiff was fair towards the defendant in
his testimony and did
not appear to be gilding the lily. So, for
example, he readily admitted that warders tried to help him as far
as they were able
to and that some of them went out of their way to
do so. He also made admissions that could count against him, such
as, for example,
that he had told everybody in prison that he was
going to sue as a result of the fact that he had become ill with TB.
[179.] On the whole, the
plaintiff came across as a witness who was honestly trying, to the
best of his ability, to give an accurate,
truthful and reliable
account of the time he spent in prison and, in particular, of the
circumstances surrounding his illness
with TB. I have no hesitation
in accepting his evidence.
[180.] Doctors Theron and
Craven as well as Mr Muller have been in conflict with the DCS and
for this reason their evidence was
approached with a measure of
circumspection. Their conduct in the witness box was carefully
observed and scrutinised, as was
the evidence that they proffered.
[181.] Albeit that Dr Theron
was critical of the DCS and its management of TB (or lack thereof)
in the prison, he was very much
aware of the fact that he was called
as an expert witness and that he had to be unbiased in the giving of
his evidence. He made
it clear that he does not have any
difficulties or problems with the DCS in his personal capacity, that
his concern was for the
truth and that he was not taking sides.
[182.] Dr Theron was taken to
task in regard to his evidence that he doubted the statistics
relating to the number of nurses employed
at the prison, which had
been provided by the Defendant during the course of the trial. In
the event, however, his evidence regarding
the shortage of nurses
was supported by Mr Muller and the letters which the latter
forwarded to the authorities at the time.
Even Mr Gertse had to
concede that there was a drastic nursing shortage. Moreover, none of
the source documents which had been
used to compile the statistics
were made available so that the figures could be verified. In such
circumstances, Dr Theron's
reservations about the veracity and
reliability of the defendant's statistics does not strike me as
untoward, or unfair, nor
does it detract from the value of his
evidence.
[183.] Dr Theron's evidence
relating to his development of a TB patient profile was the subject
of much scrutiny under cross-examination.
It became clear from the
evidence, however, that such profile consisted of certain clinical
observations and objectively ascertainable
criteria which he applied
in his practice of medicine, such as, for example, an under
nourished appearance, and clinical signs
of depression, which tended
to undermine a patient's immune system. In the final analysis, the
various elements of the TB patient
profile which he developed
consisted of various symptoms and behaviour which he would consider
in arriving at a differentiated
diagnosis, just as he would do if he
had to determine whether or not a patient suffered from, for
example, heart disease. His
medical training and clinical experience
caused him to take account of the various factors which made up the
TB patient profile
in making a diagnosis of his patient's condition.
[184.] On an overall conspectus
of the evidence of Dr Theron and of his demeanour in the witness
box, I am satisfied that he was
an honest and objective witness who
gave a reliable account of the health system in the prison and of
the impact which it had
on the management and spread of TB. His main
concern during the period of his employment at Pollsmoor was clearly
the welfare
of his patients and it was his concern for his patients
that brought him into conflict with the DCS. I have no hesitation in

accepting his evidence.
[185.] It was readily evident
that Dr Craven is somewhat of a martinet. He is clearly a strict
disciplinarian who sets high standards
of performance for himself
and others. He obviously believes that if a job is worth doing, it
is worth doing well. It appears
that at times he may have been
somewhat inflexible in his approach to matters, such as, for
example, his insistence on absolute
silence when he had to see
patients at the prison. He did, however, have a valid reason for
doing so, inasmuch as he could not
perform his job adequately if he
could not hear a patient's lung, heart and blood sounds sufficiently
clearly.
[186.] Dr Craven, like Dr
Theron, appeared to have been genuinely concerned about the
disintegration of the health system in the
maximum security prison,
because this had a direct, negative impact on the welfare of his
patients. His frustration with the
DCS and the manner in which the
health system in the prison was approached, was readily evident. He
clearly took the responsibility
which vested in him by the nature of
his position at the prison very seriously and was, for this reason,
very critical of the
DCS. He testified in a calm and forthright
manner and did not pull any punches.
[187.] Under cross-examination
Dr Craven was referred to a number of patients' hospital files which
had been selected at random,
in order to determine the reliability
and accuracy of his list of derelictions of duty. It was sometimes
difficult to reconcile
the derelictions which Dr Craven had listed
with the contents of the individual hospital file. For this reason,
Mr Jamie submitted
that Dr Craven's evidence was unreliable.
[188.] Dr Craven's notes about
the various derelictions of duty were rather cryptic and he conceded
that these had to be interpreted
in context. He was, however, at
somewhat of a disadvantage when he was confronted with the various
hospital files in the witness
box, without having had a prior
opportunity of refreshing his memory from such files. He conceded
that he could not in all instances
tie in the notes he had made with
the contents of the files.
[189.] In my view, the fact
that it was not possible to reconcile Dr Craven's notes with the
relevant hospital files fully, does
not serve to detract from the
overall value of his evidence. I accept that he may well have been
fairly stringent in his requirements
on some occasions, because he
clearly expected a very high standard of performance and became
extremely frustrated by the circumstances
under which he had to
perform his work at the prison. At no stage, however, did I get the
impression that Dr Craven was anything
less than open and frank with
the Court, or that he was being deliberately unfair or biased
against the defendant. The high standards
of performance which he
set for himself and others may nowadays appear to be somewhat old
fashioned and may be irritating to
persons who tend to have a more
relaxed attitude, but such fact does not detract from the honesty,
veracity or reliability of
his evidence. His evidence is accordingly
accepted.
[190.] Mr Muller was also a
good witness. Albeit that he is still in conflict with the DCS, he
testified in a calm and balanced
manner and there was no indication
that he was partisan. He did not volunteer to support the
plaintiff's case, he came to Court
to testify under a witness
subpoena. His evidence in regard to the critical nursing shortage
and the impact which this had on
the health system at the prison,
was borne out by the letters which he had written at the time. There
was no indication that
he was biased against the defendant, or that
he was deliberately painting a bleaker picture than was necessary. I
am satisfied
that he gave an honest account of the situation at the
prison and that his evidence is both credible and reliable. His
evidence
is accordingly also accepted.
[191.] There is no reason to
doubt the veracity or credibility of the evidence given by Ms
Caldwell. Her evidence, however, did
not substantially contribute to
the determination of the issues herein.
[192.] Mr Gertse was a poor
witness. He obviously had much to lose if he gave evidence which did
not favour the defendant's case
and it was obvious that he tried to
put the DCS in the best possible light. If his evidence were to be
believed, the defendant
had a health system in place which
functioned perfectly, despite the fact that the prison was not only
extremely over crowded,
but also suffered from a critical shortage
of nurses. Moreover, despite the massive overcrowding, he would have
the Court believe
that all TB patients who were in the infectious
stage of the disease, were isolated. In addition, he was obviously
prepared to
draw conclusions favourable to the defendant's case even
though he had no personal knowledge of events. His evidence relating
to the completion of the plaintiff's TB hospital card offers a prime
example of this fact.
[193.] Mr Gertse also
frequently contradicted himself. Some of these contradictions have
already been alluded to herein above.
The record will reveal many
more. Moreover, it was patently obvious that he tailored his
evidence to suit the case. His evidence,
referred to above, relating
to the completion of the plaintiff's TB hospital card, the TB blitz
which had allegedly been conducted
and the taking of sputum samples
on consecutive days, clearly demonstrates his penchant for modifying
the truth.
[194.] On the whole, Mr Gertse
was clearly not an unbiased witness and his evidence is tainted by
many defects. I am not satisfied
that he was truthful, nor am I
satisfied that his evidence was reliable. In so far as his evidence
is contradicted by the witnesses
who testified for the plaintiff,
his evidence is accordingly rejected.
[195.] Prof Van Helden suffered
the misfortune of having been briefed by Mr Gertse. In the result,
many of the facts which underpinned
his opinions are suspect,
incorrect and unreliable. So, for example, Prof Van Helden was told
that persons who were diagnosed
as having active TB were all
isolated so that the risk to other inmates was reduced, that the
DOTS system was consistently followed
and that the plaintiff had
been kept in a single cell and had not been exposed to infection by
other prisoners. On the basis
of such information, all of which was
factually incorrect, Prof Van Helden concluded that the care of TB
patients in prison was
better than in the outside world. The
evidence of the plaintiff as well as that of Dr Theron and Dr Craven
is clear that due
to overcrowding by no means all TB cases were
isolated. Indeed, the plaintiff himself was not isolated.
[196.] Prof
Van Helden also appeared to fall into the trap of losing his
objectivity. So, for example, he used statistical evidence
which was
obtained in lower socio-economic areas such as Ravensmead and
Masiphumelele to justify his opinion that the plaintiff,
who came
from a middle class environment, had probably been infected with TB
prior to coming into the prison, in circumstances
where he himself
had admitted that those statistics would not be applicable in middle
and higher socio-economic areas. Indeed,
Prof Van Helden went so far
as to say that the plaintiff's chances of having been infected with
TB prior to entering prison were
'exceptionally
high'.
[197.] There is no doubt that
Prof Van Helden is an expert is his field, but he is not a medical
doctor and has had no experience
in the diagnosis and treatment of
TB. His experience relates to research. On the whole, Prof Van
Helden's evidence was tainted
with bias and misinformation. As a
consequence, his evidence is, in my view, in many instances
unreliable and inaccurate.
[198.] Both Dr Theron and Dr
Craven have had much experience in the diagnosis and treatment of TB
during the years that they have
practised medicine and their
expertise in this regard is beyond question. By virtue of their
expertise and the fact that they
were directly involved in the
health system at the prison, they were in a unique position to
provide an insight into the circumstances
at the prison which
impacted upon the management of TB during the plaintiff's
incarceration. Whenever the evidence of Prof Van
Helden is in
conflict with that of Drs Theron and Craven, I unhesitatingly accept
the latter versions.
The Legal Position
[199.] In order to establish a
claim in delict, a plaintiff has to prove that the defendant
negligently committed an act which
was unlawful and that the act so
complained of was causally related to the harm which ensued.
[200.] In the instant case, it
was not disputed that the acts of omission which had been alleged by
the plaintiff in his particulars
of claim, if established, would
constitute acts for the purposes of liability in delict. The
defendant has, however, taken issue
with the plaintiff in regard to
the elements of unlawfulness, fault and causation.
[201.]
Negligent omissions are unlawful only if these occur in
circumstances that the law regards as sufficient to give rise to
a
legal duty to avoid negligently causing harm (Minister
of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at
441E-F).
As
was stated in Minister
of
Polisie v Ewels
1975 (3) SA 590
(A) at 597A-B,
negligent
omissions will only be regarded as constituting unlawful conduct if
the circumstances of the case are such that the
omission not only
evokes moral indignation, but the 'legal convictions of the
community' require that it be regarded as unlawful.
The enquiry is a
broad one in which all of the relevant circumstances must be taken
into account (Minister
of
Safety and Security v Van Duivenboden, supra, at 442B-E para [13]
and
cases there cited).
[202.] As
the Constitutional Court has pointed out in Carmichele
v
Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at 961F
the
Constitution, which is the supreme law, embodies an objective,
normative value system which pervades all areas of the law.

Moreover, section 39(2) of the Constitution expressly provides that
x
(W)hen
interpreting
any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit,
purport and
objects of the Bill of Rights.'
In
applying the test laid down in the case of
Ewels
referred
to above, a court must accordingly have regard to the fact that the
'legal convictions of the community' must now be
informed and guided
by the norms and values which have been enshrined in the Bill of
Rights, because norms or values which are
inconsistent with the
Constitution, have no validity (Minister
of
Safety and Security v Van Duivenboden, supra, at 444E-H, para
[17]).
[203.] As
Nugent JA pointed out in
Van
Duivenboden's
case
1
the general
reluctance to impose liability for omissions, which is underpinned
by the concept that individuals are free to
x
mind
their own business', may have been strengthened by the Bill of
Rights in so far as individuals are concerned. Public officials,

however, appear to find themselves in a less advantageous position.
'The
protection that is afforded by the Bill of Rights to equality and to
personal freedom and to privacy might now bolster that
inhibition
against imposing legal duties on private citizens. However, those
barriers are less formidable where the conduct of
a public authority
or a public functionary is in issue, for it is usually the very
business of a public authority or functionary
to serve the interests
of others and its duty to do so will differentiate it from others
who similarly fail to act to avert harm.
The imposition of legal
duties on public authorities and functionaries is inhibited instead
by the perceived utility of permitting
them the freedom to provide
public services without the chilling effect of the threat of
litigation if they happen to act negligently
and the spectre of
limitless liability. That last consideration ought not to be unduly
exaggerated, however,
bearing
in
mind that the requirements for establishing negligence and a legally
causative link provide considerable practical scope for
harnessing
liability within
acceptable
bounds.'
[204.] The
Constitution itself recognises that the State has a duty to act in
order to promote and to protect the rights which
are the subject of
the Bill of Rights. Section 7(2) of the Constitution, read with
section 2 thereof, expressly provides that
the State
must
respect, protect, promote and fulfil the rights in the Bill of
Rights'
and
that the obligations imposed by the Constitution
must
be fulfilled'.
Section
8(1) of the Constitution provides that the
Bll
of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state'.
[205.] In
determining whether or not there is a legal duty to act on the part
of a public official, the relevant factors must
now accordingly be
weighed in the context of the spirit, purport and objects of the
Bill of Rights which recognises a Constitutional
State founded on
dignity, equality and freedom, in which the government has positive
duties to promote and uphold such values.
Given the provisions of
the Constitution which have been referred to in the immediately
preceding paragraph, the Constitutional
Court has found that there
is a duty imposed on the State and all of its organs not to perform
any act that infringes the Bill
of Rights. Indeed, in some
circumstances the State and its organs would be obliged to provide
appropriate protection to everyone
through laws and structures which
have been designed to afford protection against infringement of the
rightscontained in the
Bill of Rights (see Carmichele
v
Minister of Safety and Security, supra, at 957B-D and F).
[206.]
Section 41(1)© of the Constitution, moreover, provides that
\A)ll
spheres of government and all organs of state ... must ... provide
effective, transparent, accountable and coherent government
for the
Republic as a whole'
.
As was pointed out by the Supreme Court of Appeal in
Olitzki
Property Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA) at 1263E:
'(T)he
principle of public accountability is central to our new
constitutional culture, and there can be no doubt that the accord
of
civil remedies securing its observance will often play a central
part in realising our constitutional vision of open, uncorrupt
and
responsive government.'
[207.] The
principle of accountability, however, does not necessarily translate
into a civil remedy in the form of an action for
damages. Other
appropriate remedies, whether judicial or non-judicial, might be
available
2
.
As was said by Nugent JA in
Van
Duivenboden
3
,
'However,
where
the State's failure occurs in circumstances that offer no effective
remedy other than an action for damages the norm of
accountability
will, ... ordinarily demand the recognition of a legal duty unless
there are other considerations affecting the
public interest that
outweigh that norm. For as pointed out by Ackermann J in Fose v
Minister of Safety and Security ...
without
effective remedies for breach ... the values underlying and the
right entrenched in the Constitution cannot properly be
upheld or
enhanced. Particularly in a country where so few have the means to
enforce their rights through the
courts,
it
is essential that on those occasions when the legal process does
establish that an infringement of an entrenched right has
occurred,
it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to ^forge
new tools'
and shape innovate remedies, if needs be, to achieve that goal.'
[208.] In
determining whether or not the breach of a statutory duty is to be
regarded as unlawful so that it would give rise to
a private law
claim for damages, Cameron JA stated the position as follows in the
Olitzki
Property Holdings
case
4
:
Where
the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court has developed
a
supple test. The focal question remains one of statutory
interpretation, since the statute may on a proper construction by

implication itself confer a right of action, or alternatively
provide the basis for inferring that a legal duty exists at common

law. The process in either case requires a consideration of the
statute as a whole, its objects and provisions, the circumstances
in
which it was enacted, and the kind of mischief it was designed to
prevent. But where a common-law duty is at issue, the answer
now
depends less on the application of formulaic approaches to statutory
construction than on a broad assessment by the court
whether it is
"just and reasonable" that a civil claim for damages
should be accorded. The conduct is wrongful, not
because of the
breach of the statutory duty
per
se,
but
because it is reasonable in the circumstances to compensate the
plaintiff for the infringement of his legal right. The determination

of reasonableness here in turn depends on whether affording the
plaintiff a remedy is congruent with the court's appreciation
of the
sense of justice of the community. This appreciation must
unavoidably include the application of broad considerations
of
public policy determined also in the light of the Constitution and
the impact upon them that the grant or refusal of the remedy
the
plaintiff seeks will entail.'
(Footnotes
omitted)
[209.]
Cameron JA added that, in instances where the court has to determine
whether or not a delictual claim arises from the breach
of a
statutory provision, the fact that the provision is embodied in the
Constitution may, depending on the nature of the provision,
attract
a duty more readily than if it had been in an ordinary statute.
5
[210.] Even
if the law recognises the existence of a legal duty to act and even
if such duty has been breached, with the result
that the conduct
complained of is unlawful, the element of fault must still be
satisfied before liability will attach to the
defendant. In order
for fault or culpability to attach to an omission, the test referred
to in Kruger
v
Coetzee
6
is applied,
which means that liability arises if a reasonable person in the
position of the defendant would have foreseen that
his conduct would
reasonably possibly cause harm to another and would have taken
reasonable steps to avert it, but the defendant
failed to do so
(Minister
of
Safety and Security v Van Duivenboden, supra, at 441G-442
).
The test is an objective one which does not depend on the subjective
intent or mind set of the defendant, but rather on the
particular
circumstances of each case.
[211.] Last
but not least, there must be a causal connection between the
unlawful and negligent conduct complained of, and the
harm which is
alleged to have ensued. The element of causation involves two
distinct enquiries. Firstly, in regard to the issue
of factual
causation, it must be determined whether or not the postulated cause
can be identified as the
sine
qua non
of
the loss in question. This has become known as the
x
but-for'
test. In applying such a test, one makes a hypothetical enquiry as
to what would probably have happened, but for the
wrongful act of
the defendant. If the plaintiff's loss would still have ensued
absent the defendant's conduct, factual causation
is lacking and
that is the end of the matter. Secondly, if factual causation has
been established, it must be determined whether
the wrongful act is
linked sufficiently closely to the loss concerned for liability to
ensue. If the damage is too remote, no
liability will accrue.
7
Issues to be Decided
[212.] In order to determine
whether or not the defendant is liable to the plaintiff in the
instant case, it appears to me that
the following underlying issues
need to be decided:
1. Whether or not the
prevailing conditions in the maximum security prison at Pollsmoor,
during the period November 1999 to June
2003, were such that the
spread of TB was facilitated thereby; If the answer to this issue is
in the affirmative,
2. Whether it is more probable
than not, that the plaintiff's illness with TB was occasioned by, or
resulted from, the prevailing
conditions in the maximum security
prison at Pollsmoor during his incarceration. If so,
3. Whether a reasonable person,
in the position of the defendant, would have foreseen that the
prevailing conditions in the maximum
security prison would
reasonably possibly spread TB amongst the inmates in the said prison
and cause inmates, such as the plaintiff,
who had not previously
been ill with TB, to succumb to the disease. If so,
4. Whether or not a reasonable
person in the position of the defendant would have taken steps to
guard against the spreading of
TB as aforesaid? If the latter
question is answered affirmatively,
5. Whether or not the defendant
took reasonable steps to guard against the spread of TB in the
maximum security prison to inmates,
such as the plaintiff, who had
not been ill with TB and, if not
6. whether or not the
defendant's failure to take such steps was unlawful, thereby giving
rise to a private law claim for damages.
Did the prevailing
conditions in the maximum security prison facilitate the spread of
TB?
[213.] When the plaintiff first
came into the maximum security prison at Pollsmoor in November 1999,
TB was already prevalent
in the prison. The evidence of Dr Theron is
clear in this regard. Indeed, throughout the time of the plaintiff's
incarceration,
TB remained a problem in the prison. This much is
clear from the evidence of both Dr Theron and Dr Craven.
[214.] Dr Theron and Dr Craven
were agreed that control over TB in the prison environment was
dependant upon the effective screening
of incoming prisoners, the
isolation of infectious patients and the proper administration of
the necessary medication over the
prescribed period of time. All of
these measures were heavily dependant upon a sufficient number of
suitably qualified nursing
staff being available. The provision of
adequate nutrition and ventilation also played an important role.
[215.] As
has been referred to above, clause 4.1(a) of Chapter 3 of the
standing orders provided that all persons admitted to
prison, should
been seen on admission by a registered nurse for, inter alia,
medical problems, whether acute or chronic. Such
provision is
reiterated in clause 4.4(a) which stated that
\A)ll
admissions must be screened by a registered nurse on admission using
the screening form.'
Clause
6.1 of the said standing orders stated that
x
(F)ollowing
screening
at
the reception, all admissions must be taken to the prison health
facility by the unit manager or reception manager within 24
hours,
for a medical examination by the registered nurse or medical
officer/practitioner as prescribed.'
Clause
6.2 provided that at prisons where there are primary health care
clinics at the housing units, the medical examination
may be
performed at such clinics. The intention of the standing orders
appears to me to be clear and unambiguous. Every incoming
prisoner
must be screened by a registered nurse on admission and every such
prisoner must be medically examined within 24 hours
of admission.
The reasons why such a strict obligation was imposed are, in my
view, self-evident. Firstly, prisoners who were
ill or injured had
to receive medical attention. Secondly, prisoners who posed, or
could reasonably pose, a health risk to others
had to be identified
in order that the necessary steps might be taken to prevent other
inmates from becoming ill. Indeed, clauses
14 and 15 of the said
Chapter of the standing orders contained, inter alia, the following
provisions in regard to communicable
and contagious diseases:
14.6.1
Whenever there is a suspicion that a prisoner... could be suffering
from a communicable, or contagious disease. The case
must
immediately be brought to the attention of the Supervisor: Nursing
and the attending medical officer/ practitioner.
14.6.3
If the registered nurse or attending medical officer/ practitioner
deems it necessary to isolate/segregate the prisoner
... suspected
to be suffering from a communicable, or contagious disease, the
recommendations or prescriptions must always be
adhered to.
15.1
All prisoners with communicable conditions must be isolated in
strict accordance with the medical officer's/ practitioner's
and
registered nurse's orders issued in each case.
15.3
Each prison must have written orders on infection control which must
be monitored and reviewed annually.'
[216.] Mr Gertse initially
testified that incoming prisoners were screened by the nurse who was
on night duty. He subsequently
changed his evidence in this regard
and said that the night nurse conducted a pre-screening and that
incoming prisoners who volunteered
that they had medical problems
were screened at the hospital the following day. The plaintiff's
evidence was that on admission
to the prison one of the inmates,
Trevor Blignault, would ask persons who were ill to come forward. Mr
Muller testified that
there was only one nurse on duty at Pollsmoor
after 16h00 and that nurse was responsible for all 5 of the prisons.
The screening
of prisoners who came from the courts in the
afternoons could accordingly not be performed by the night nurse and
did not form
part of the duties which such nurse was expected to
perform. Mr Muller knew this to have been the case, because he was
in charge
of nursing services at Pollsmoor and prepared the duty
roster. Dr Craven's working hours did not extend to the afternoon
and
there was accordingly no doctor on duty at the time when
prisoners were brought back from the courts. It is accordingly clear
from the evidence which has been accepted, that during the period of
the plaintiff's incarceration, prisoners were not screened
by a
registered nurse or medical practitioner, whether for TB or any
other disease, upon their arrival at the prison.
[217.] Mr Muller testified that
the nurses ensured that incoming prisoners were screened on the
morning after their admission
and that those with medical complaints
were then referred to the doctor. Under cross-examination Mr Gertse
stated that the screening
forms, such as Exhibits O and P,
containing the details of the incoming prisoners were printed out on
completion of the admission
process. The nurse would then fill out
the medical details on such form the following day when incoming
prisoners were screened.
As is evident from the aforesaid Exhibits,
the forms contain only the most basic information in regard to
prisoners' health status
- their body mass and whether or not they
had any medical complaints. It appears that the nurses who conducted
the screening
process did not physically examine any of the incoming
prisoners. They merely noted whether a prisoner provided a positive
or
negative answer to the question as to whether he had any medical
complaints. Only those prisoners who stated that they had medical

complaints were referred to the doctor for examination.
[218.] In the context of the
aforesaid screening process, it is important to bear in mind Dr
Craven's testimony that persons from
the lower economic classes who
smoked and lived in crowded conditions, frequently coughed and did
not regard a cough as pathological.
They only went to the doctor
when additional symptoms manifested. The aforesaid evidence is
clearly based on Dr Craven's experience
and accords with the
probabilities. It is accordingly unlikely that incoming prisoners
who were already ill with TB, but who
had not yet experienced marked
symptoms other than coughing, would have volunteered that they were
ill. Had these prisoners been
properly screened, a simple chest
examination would have revealed that there was an underlying
pathology and they could have
been separated out from the general
prison population. The evidence of Drs Craven and Theron are clear
in this respect. As a
result of the manner in which the nurses
implemented the screening process, which amounted to no more than
asking whether or
not an incoming prisoner had any medical
complaints, the vast majority of such prisoners were accordingly not
medically screened,
inasmuch as no physical examination was
conducted unless a prisoner was referred to the attending doctor.
[219.] The aforesaid screening
process, such as it was, appears to have constituted the only
screening that was conducted. Drs
Theron and Craven testified that
mass screening of prisoners had been conducted in the past when the
old, military style of management
was in place, but not during the
time of the plaintiff's incarceration when the more relaxed
management style had been adopted.
Dr Theron, however, testified
that it would have been possible for a doctor to conduct the
screening of all of the inmates from
time to time on a cell by cell
basis, although such screening had not taken place.
[220.] Instead of screening
prisoners for infectious diseases, such as TB, from time to time
after their admission, the authorities
at the maximum security
prison relied on a self-reporting system in terms whereof prisoners
had to make it known if they were
ill or required medical attention.
With regard to TB in particular, the authorities, according to Mr
Gertse, maintained a 'suspect
register'. If an inmate was suspected
of having TB, whether because he reported it or whether a nurse was
of the opinion that
a prisoner might be suffering from TB, a sputum
test would be conducted and the inmate's name would be recorded in
the such register.
Although Mr Muller testified that all test
results ought to have been referred to the doctor for further
attention, Mr Gertse's
evidence was that only the cases which
yielded positive results would be referred to the doctor. If test
results were negative
for TB, the nurse would merely counsel the
inmate and, if necessary, treat the cough. It is by no means clear
that the suspect
register was used during the period prior to the
plaintiff becoming ill. Mr Gertse's evidence was extremely
unreliable, for the
reasons already adverted to. Mr Muller could not
recall whether the suspect register was used during 2002 and 2003.
Neither Dr
Craven nor Dr Theron had knowledge of such a register
during their period of employment at Pollsmoor and the plaintiff
also did
not know of its existence. Dr Craven only had knowledge of
a suspect register which had been maintained after he had left the
prison. Even if a suspect register had been maintained, however, it
is by no means clear what purpose it was intended to serve.
There is
no evidence that persons whose names had been entered into the
register and whose sputum tests produced negative results
were
followed up on any regular basis or at all. In the absence of
appropriate monitoring of prisoners who were suspected of
having TB,
but who tested negative, the keeping of such a register appears to
have been a wholly useless exercise.
[221.] The prison authorities'
failure to screen incoming prisoners adequately appears to me to
have constituted a contravention
of clause 4 of Chapter 3 of the
standing orders. Such failure obviously permitted persons who were
ill with an infectious disease,
such as TB, to mingle with other
prisoners, at the very least while they were held in the overnight
cell. If they did not volunteer
that they were ill with TB, or that
they were suffering from symptoms which were indicative of TB, upon
their arrival at the
maximum security prison, they would remain in
the general prison population until such time as they did request
medical assistance,
or until such time as they were so ill that one
of the warders or nurses noticed it and caused them to be medically
examined.
In the mean time, those who were ill with TB would be
expelling TB bacteria into their overcrowded cells every time they
sneezed,
coughed or spat.
[222.] It is also clear on the
evidence of Dr Theron and Dr Craven that various further factors
played a role in the transmission
of TB in the maximum security
prison - overcrowding, a lack of free flowing air, lack of isolation
facilities, inadequate application
of the DOTS system in the
administration of the necessary TB medication and a severe shortage
of nurses.
[223.] The evidence of Drs
Theron and Craven in regard to overcrowding was confirmed by Mr
Muller and by the official correspondence
at the time. Although the
approved accommodation at the maximum security prison was 1619
inmates, the lock-up total on occasion
was as much as 3052, which
constituted 189% occupation (Exhibit A p 58). Single cells regularly
housed 3 inmates and communal
cells were filled with double and
sometimes triple bunks. Given that TB bacteria are air borne, these
circumstances must clearly
have facilitated the transmission of the
disease. Indeed, the evidence of Drs Craven and Theron, as well as
of Prof Van Helden,
was to the effect that TB spreads more easily in
crowded conditions, especially in a closed environment. (In the
light of such
evidence, Prof Van Helden's refusal to acknowledge the
necessity of isolation in the prison environment, was particularly
unconvincing.)
[224.] In addition to the
overcrowding, the evidence was clear that there was a lack of free
flowing air in the cells of the maximum
security prison. Dr Theron
described the atmosphere in communal cells as one of dinginess and
squalor. The air was thick with
smoke from cigarettes and
'hondjies'. The cells had windows along one of the cell walls with a
doorway on the opposite side.
Once lock down had occurred at
approximately 16h00, there was no cross-ventilation at all until the
next morning at approximately
07h00 when the steel door to the cell
would be opened. Dr Craven confirmed that during such time prisoners
would be coughing,
sneezing and spitting over each other. Prisoners
were confined to their cells for 23 hours a day - unless they went
to court
- and were only let out for exercise for an hour.
[225.] It is also clear from
the evidence that isolation of infective TB patients was not
routinely practised. Dr Craven and Mr
Muller testified that
isolation of infectious TB patients was not practically possible,
due to the overcrowding of the maximum
security prison and the
concomitant lack of suitable accommodation. Moreover, although
so-called isolation cells were available
in the hospital section of
the maximum security prison, Dr Theron testified that these in fact
did not provide isolation in the
true sense. The evidence was that
the solid metal doors to such cells were seldom closed, because the
prisoners detained in such
cells would then be cut off from contact
with others and would have inadequate ventilation. Mr Gertse would
have the Court believe
that all prisoners who were infective were
isolated, whether in the hospital section or in some of the single
cells in the sections
which had been reserved for this purpose. His
evidence in this regard was, however, contradicted by Mr Muller and
Dr Craven,
does not accord with the probabilities if regard is had
to the measure of overcrowding and does not fit in with the
plaintiff's
treatment.
[226.] The
plaintiff was not isolated at any stage after he had been diagnosed
as suffering from TB. During the period of approximately
4
1
/2
years
while he was awaiting trial, the plaintiff was detained in the
E-section of the maximum security prison at Pollsmoor, save
for a
few months when he was held in the Medium B prison. Albeit that he
spent some time in communal cells, he was incarcerated
in a single
cell for most of the time. He was, however, always in contact with
other prisoners. He shared his single cell with
two other inmates.
On the approximately 70 occasions when he went to court, he was
confined with other inmates in a holding cell
at Pollsmoor, in the
truck that conveyed him to court and in the court cells. On
occasions when he was hospitalised in the prison,
he was in a
communal ward. When prisoners were let out for exercise, they
congregated in the passage before being let out in
the exercise
yard. Indeed, even when the plaintiff was diagnosed as suffering
from TB, he was not isolated from other prisoners,
but returned to
his cell.
[227.] It is clear from the
plaintiff's evidence as well as that of Mr Gertse that the DOTS
system of treatment was not adhered
to in the maximum security
prison. As was explained by Dr Craven, the DOTS system is
particularly important in the treatment
of TB, because patients are
frequently not inclined to take their medication on account of the
side effects. Patients are also
frequently poorly motivated to
continue taking their medication once they feel better. Unless the
entire period of treatment
is completed, however, the patient may
develop MDR-TB or even XTR-TB. Dr Theron held the same view. Indeed,
Dr Theron testified
that the fact that there were cases of both
MDR-TB and XTR-TB in the maximum security prison was indicative of
the fact that
patients had not completed the entire course of
medication. The evidence of the plaintiff and of Mr Gertse
established that patients
were not always seen to take their
medication. The plaintiff testified that he was sometimes given as
much as a week's medication
in advance. Mr Gertse's evidence
established not only that the patient treatment cards were sometimes
filled out in advance of
medication being taken, or subsequent
thereto, but that such cards might be marked off by a person who had
no direct knowledge
of the administration of the medication.
[228.] There was a substantial
nursing shortage at all of the prisons which form part of the
Pollsmoor prison complex. The maximum
security prison, in
particular, had approximately 50% of the nurses which were required.
The letters written by Mr Muller in
this regard provide graphic
detail of such fact. Dr Theron testified as to such shortage, as did
Dr Craven. As a direct result
of the fact that the number of
available nurses was insufficient , clinics were not held in the
sections on a daily basis and
patients had difficulty in obtaining
their TB medication. Dr Craven testified that it was logistically
impossible for the nurses
to do what was required of them. The
shortage of nurses was exacerbated by a shortage of warders and as a
result, inmates who
were ill and who required medical attention
sometimes could not get to see the doctor. Dr Theron testified that
inmates had sometimes
been ill with TB for months before being
brought to the doctor.
[229.] Given the nature of the
disease and the manner in which it is transmitted, each of the
factors adverted to above, on its
own, was capable of facilitating
the spread of TB in the maximum security prison. When these are
regarded cumulatively, as they
must, because none of these factors
operated in isolation, the conclusion is inescapable that the spread
of TB was indeed facilitated
by the prevailing conditions in the
said prison.
Is it
more probable than not that the plaintiff's illness with TB was
occasioned by, or resulted from, the prevailing conditions
in the
maximum security prison
?
[230.] The plaintiff was 53
years old when he was first admitted to the maximum security prison.
His evidence that he had not
ever been ill with TB prior to such
admission, was not challenged. Upon his admission, he was fit and
well, save for some heart
and prostate problems and he appeared to
be well nourished. Dr Craven regarded him as obese and ordered that
he receive half
rations. Although the plaintiff smoked, a factor
which would make him more susceptible to TB, his evidence that he
was fit and
well and had always looked after his physical health,
was also uncontested. Even when he was in prison, he kept an eye on
his
health by requesting regular sputum tests.
[231.] When the plaintiff is
measured against the typical TB patient profile which Dr Theron
referred to, the latter was of the
opinion that the plaintiff had
not been a typical candidate for the development of TB. Per contra,
the plaintiff appeared to
have been robust and well nourished. There
was no evidence that he displayed any of the clinical signs and
symptoms which were,
in Dr Theron's experience as a clinician,
indicative of TB or of susceptibility thereto.
[232.] The plaintiff became ill
with TB after spending some 3 years in the maximum security prison.
Given the plaintiff's medical
history, coupled with the prevailing
conditions in the maximum security prison, Dr Theron concluded that
the prison situation
caused him to become vulnerable to TB, because
his immune system had broken down as a result of the stressful
environment. Dr
Craven testified that the plaintiff would have
inhaled far more of the TB bacteria in prison than he would have in
the outside
world and that the increased dose of bacteria would, in
turn, have increased the plaintiff's chances of becoming ill with
the
disease. Dr Craven also came to the conclusion that the
plaintiff became ill with TB as a result of his imprisonment.
[233.] Prof Van Helden took
issue with the views of Dr Craven and Dr Theron, but his evidence in
this regard was wholly unreliable.
Not only did he attempt to apply
inappropriate statistics to the plaintiff's case, but his opinion
that the plaintiff had in
all likelihood been infected with TB prior
to being admitted to the prison, did not take into account the fact
that the plaintiff
had been incarcerated for a period of
approximately 3 years before he succumbed to the disease.
[234.] During the course of the
trial, much time was spent on the re-activation of TB as opposed to
re-infection. It appears to
me that such debate between Drs Theron
and Craven on the one hand and Prof Van Helden on the other, is of
academic importance
only. Fact of the matter is that the plaintiff
had been tested for TB when he was a child and lived in Edenvale. He
had never
been ill with TB throughout his entire life. He did not
fit the patient profile for persons who would be vulnerable to TB.
He
came into a prison which had an unacceptably high incidence of TB
and 3 years later he was diagnosed with the disease. When regard
is
had to these factors and to the manner in which the disease is
spread, the conclusion is, in my view, inescapable that but
for his
incarceration in the maximum security prison, the plaintiff would
probably not have become ill with TB.
[235.] The fact that the
plaintiff had been aware that TB was prevalent in the prison where
he was detained and that he smoked,
does not take the matter any
further. The plaintiff was unaware as to the identity of the inmates
were who were ill with TB,
because the majority of the inmates
smoked and coughed. However, even if he had known the identity of
the prisoners who were
ill with TB, he could not necessarily have
avoided them. Although he spent most of his time in a single cell,
which he shared
with 2 other inmates, he was incarcerated in
communal cells for some time during his incarceration and, in
particular, when he
had to attend court on 70 separate occasions. He
also came into contact with other prisoners when they congregated in
the passage
leading to the court yard where they exercised. Just as
smoke drifted down the corridor during the day, a fact which was not

disputed, Dr Craven expected the TB bacteria to come drifting down
the corridor. The fact that the plaintiff smoked might have
caused
him to be more susceptible to TB, but even if he had not smoked, he
could not have avoided coming into contact with smoke.
[236.] On the totality of the
evidence, I am accordingly satisfied that it is more probable than
not that the plaintiff contracted
TB as a result of his
incarceration in the maximum security prison at Pollsmoor.
[237.] Once the plaintiff had
been diagnosed as suffering from TB, he was promptly treated by
means of the required prescription
drugs. He completed the full
course of treatment and was cured of TB. In these circumstances, the
allegations made in paragraphs
15.2 and 15.3 of the plaintiff's
Particulars of Claim, to the effect that the responsible authorities
failed to provide the plaintiff
with adequate medical treatment, are
without foundation.
Would a
reasonable person, in the position of the defendant, have foreseen
that the prevailing conditions in the maximum security
prison would
reasonably possibly spread TB amongst the inmates and cause inmates,
such as the plaintiff, to succumb to the disease
?
[238.] As has been alluded to
above, TB is a formidable infectious disease which is easily spread.
It is also a notifiable or
communicable disease which must be
reported to the Medical Officer of Health, because of the danger
which it poses to society.
It is, moreover, a disease which is
difficult to treat, because patients are frequently not compliant
once the symptoms have
lessened. Incomplete treatment may result in
infectious patients with chronic TB and in the development of
resistant strains
of TB such as MDR-TB and XTR-TB which are more
difficult to treat.
[239.] It is well acknowledged
that TB, because it is an airborne disease, spreads more easily in
confined environments which
are not exposed to adequate sunlight and
ventilation. The cells which housed prisoners at the maximum
security prison are not
properly ventilated for a great part of the
day and there is inadequate sunlight. Notably, cross-ventilation is
absent after
lock down and the free flow of air and light in the
communal cells are further restricted by blankets and the like which
are
put up to provide privacy, thereby causing such cells to be dark
and dingy. Prisoners are confined to such cells for 23 hours per
day
in severely overcrowded conditions. Whereas the TB guidelines do not
stipulate that persons in the outside world who are
ill with the
disease must be isolated from their families, Dr Theron and Dr
Craven were agreed that isolation was extremely important
in the
closed prison environment. Their evidence in this regard is logical
and, in my view, any person with a modicum of common
sense would
appreciate that in the prison context, or for example in an army
camp, or any other place where people are confined
in close
quarters, TB patients have to be separated out lest they spread the
disease.
[240.] Given the prevalence of
TB in the maximum security prison, it appears to me that any
reasonable person in the position
of the defendant would also have
realised and appreciated that the measure of overcrowding would
facilitate the spread of the
disease, especially in circumstances
where there was inadequate screening of incoming prisoners,
inadequate treatment of those
who were ill with TB and inadequate
numbers of nursing staff, in addition to overcrowding and the lack
of isolation facilities.
Once again, it is a matter of logic and
common sense, having regard to the nature of the disease and the
manner in which it is
transmitted.
[241.] The evidence of Drs
Theron and Craven established that the greater the pool of bacteria,
the greater the chances are of
becoming infected with the disease.
Persons who had previously had TB were also, according to Prof Van
Helden, more susceptible
to a recurrence. Even persons who had not
previously been ill, but whose immune system had become compromised,
were at risk for
developing the disease. A reasonable person in the
defendant's position, who was responsible for the health and welfare
of prisoners,
would no doubt have ensured that he/she had been
informed of the risk factors and would accordingly have appreciated
these facts.
Defendant's attention had been drawn to the problems
posed by overcrowding, nursing shortages and the spread of TB, as is
evidenced
by the letters written by Mr Muller and the alarms raised
by Dr Theron and Dr Craven which culminated in the approach to the

parliamentary portfolio committee.
[242.] In the result, I am
satisfied that a reasonable person in the position of the defendant
would have foreseen that the prevailing
conditions in the maximum
security prison at Pollsmoor would reasonably possibly spread TB
amongst inmates and cause inmates,
such as the plaintiff, who had
not previously been ill with TB, to succumb to the disease.
Would a
reasonable person, in the position of the defendant, have taken
steps to guard against the spread of TB
?
[243.] Given the serious nature
of the disease, the ease with which it is transmitted and the risk
which the disease posed to
the health of the general prison
population, warders and nurses included, a reasonable person in the
position of the defendant
would, in my view, have taken steps to
guard against the spread of the disease, if it was at all feasible
to do so. It has to
be determined, however, what steps could
reasonably have been taken.
[244.] It is readily evident
that the lack of proper ventilation and sunlight in the cells of the
maximum security prison was
due to the manner in which the building
had been designed and constructed. Incarceration under such
circumstances is clearly
undesirable and may constitute a breach of
the plaintiff's right in terms of clause 12 of the Constitution not
to be treated
or punished in a cruel, inhuman or degrading way.
There is no doubt that the lack of proper ventilation and sunlight
in the prison
cells materially contributed to the spread of TB in
the prison. The plaintiff, however, proffered no evidence that such
design
flaw is practically capable of remediation and it is not the
task of this Court to speculate on measures that could or could not

have been instituted to remedy such defect.
[245.] Overcrowding of the
prison was clearly a major problem and certainly contributed to the
spread of TB in the prison. It
is, however, by no means clear what
steps could have been taken to alleviate the situation. Reference
was made to the fact that
some prisoners were let out on early
parole in order to reduce the number of inmates and that other
prisons, such as Goodwood,
did not suffer from overcrowding, but the
maximum security prison remained overcrowded. Whilst it is true that
the defendant
did not offer any reasonable explanation as to why the
overcrowding was permitted to continue, other than for Mr Gertse's
evidence
that the courts sent prisoners there and that the
authorities at Pollsmoor had no choice in the matter, the plaintiff
failed
to tender any evidence as to reasonable steps that could have
been taken to reduce the overcrowding. Once again, the Court is not

entitled to speculate about the steps that could or could not
reasonably have been taken to do so.
[246.] The evidence tendered by
Dr Theron does, however, establish that the spread of TB can be
curtailed by introducing some
relatively simple, cost effective,
measures as had been demonstrated during his experience at the low
cost, community hospital,
ran by Dr Barker in Kwazulu Natal during
the period 1971 to 1973. What is required, is early identification
of persons who are
deteriorating and who may accordingly become
vulnerable to TB, early diagnosis of the disease, effective
treatment and proper
nutrition.
[247.] It appears to me that in
the context of the maximum security prison at Pollsmoor, the
aforesaid measures would translate
into the proper screening of
incoming prisoners, inclusive of a physical chest examination;
separating out those who had, or
were suspected of having TB, or who
were obviously under nourished and vulnerable to TB; the provision
of adequate nutrition
to those who were undernourished and otherwise
vulnerable to TB; regular and effective screening of the prisoner
population,
inclusive of examinations by means of X-Rays and/or
physical chest examinations by means of a stethoscope, to identify
possible
TB infection; isolation of infectious inmates and effective
implementation of the DOTS system over the prescribed period of
time.
[248.] The measures referred to
in the immediately preceding paragraph, other than isolation, are
all obviously dependant on sufficient
numbers of nursing staff and
doctors to perform the various tasks. The shortage of nursing staff
had been a major problem at
Pollsmoor in general and, at the maximum
security prison in particular, for a considerable period of time.
The correspondence
by Mr Muller and Mr Engelbrecht which form part
of Exhibit A referred expressly to the under staffing of the health
care service
in the prison and the effect thereof on the standard of
care. The report by Ms Magoro, the Director Health and Physical Care

dated March 2001 (Exhibit A p 53 et seq) similarly drew attention to
these matters. However, as is apparent from subsequent
correspondence,
posts remained vacant. By facsimile dated 21 January
2002 forwarded to the Commissioner of Correctional Services, the
Area Manager,
Mr Engelbrecht, drew attention to the fact that 10
posts for professional nurses were vacant and that a memorandum
regarding
the appointment of additional nurses which had been sent
in October 2001, had not been answered (Exhibit A, p 29 -30).
Facsimiles
sent by Mr Muller to the aforesaid Commissioner on 28
November 2001 and 16 January 2002, drew attention to the fact that
vacant
posts for registered nurses had been advertised in August
2001, interviews had been conducted from 29 October to 2 November
2001,
but appointments had not been made (Exhibit A p 32 - 34).
[249.] According to the
evidence given at the trial of the matter, staff shortages remained
a problem throughout the time of the
plaintiff's incarceration. In
my view, a reasonable person in the defendant's position would have
realised that adequate staffing
was the key to the prevention and
control of TB and would have taken steps to ameliorate the staff
shortage as a matter of some
urgency.
[250.] The overcrowding of the
maximum security prison obviously made it difficult, if not
impossible, to isolate all of the persons
who were in the infectious
stage of TB in the prison hospital. The evidence of Dr Theron and Dr
Craven made it clear that isolation
was an important element in the
prevention of the spread of TB in a closed environment, such as the
prison and logic dictates
that infectious prisoners ought to have
been separated from the general prison population if the spread of
TB was to be curtailed.
[251.] Whilst the evidence has
established that some so-called isolation facilities were available
in the hospital section, it
was apparent from Dr Theron's evidence
that the design of the so-called isolation cells was such that
isolation was not capable
of practical implementation. There is no
evidence that such problem was capable of remediation, given the
physical constraints
of the prison building. Mr Gertse, however,
testified that some of the single cells in the sections were also
used as isolation
facilities. If it is accepted that some of the
single cells were set apart for isolation purposes, it tends to
indicate that
with a measure of re-organisation, more cells could
have been used for such purpose. However, no evidence as to whether
or not
it would have been feasible to do so, was presented.
[252.] In conclusion, a
reasonable person in the defendant's position would, in my view,
have taken steps to guard against the
spread of TB in the maximum
security prison, because it is such a formidable disease which is
easily spread. More particularly,
a reasonable person would have
ensured that sufficient numbers of nursing staff were employed to
perform the various tasks involved
in the control and prevention of
TB in the said prison.
Did the
defendant take reasonable steps to guard against the spread of TB
?
[253.] On the evidence before
the Court, one could not reasonably have expected the defendant to
re-design the prison, or to remedy
the design defects. The evidence
tendered is also insufficient to determine whether or not the
defendant could reasonably have
gained control over the
overcrowding.
[254.] The failure to isolate
infectious TB patients may well have breached the defendant's
obligations in terms of clause 15
of Chapter 3 of the standing
orders which provides that prisoners with communicable conditions
must be isolated. Given the constraints
imposed by inadequate
accommodation and overcrowding I am, however, not satisfied that it
has been established that it would
have been reasonably possible to
provide isolation for all of the infectious prisoners.
[255.] The evidence has,
however, established that if sufficient members of nursing staff had
been available, proper and effective
screening could have been
conducted, which was one of the key elements in gaining control over
the spread of TB in the prison.
In addition, nurses would have been
able to conduct clinics in the various sections on a daily basis,
which means that it would
have been possible to identify potential
TB patients more expeditiously and to implement the DOTS system
effectively. In short,
the evidence has established that sufficient
numbers of nursing staff were essential in combatting and
controlling TB in the
prison. Put differently, the serious shortage
of trained nursing staff was one of the main factors which resulted
in the loss
of control over TB in the maximum security prison.
[256.] The
defendant, obviously had the power and authority to appoint
additional staff, but failed to do so. The reasons why
vacant
positions were not filled, are obviously within the exclusive
knowledge of the defendant, but the defendant tendered no
evidence
to show that it was impossible, inappropriate, or unreasonable, to
fill vacant posts on the nursing staff establishment,
or that there
were alternative means of curtailing the spread
of
TB in the maximum security prison. The high water mark of the
defendant's case was that a self-reporting system was in place
in
the prison, that it was up to inmates to report if they were ill and
that sputum tests were conducted for prisoners who requested
these.
[257.] The authorities'
reliance upon a self-reporting system, in terms whereof prisoners
had to come forward if they were ill,
appears to me to have been
ill-advised, inappropriate and wholly insufficient in the fight
against TB in the prison environment
for, inter alia, the following
reasons:
[257.1] According to the
evidence, most of the inmates smoked, cells were filled with smoke
and drifted down the corridor and
most of the inmates coughed. Mere
coughing was accordingly unlikely to precipitate any action on the
part of an affected inmate.
Indeed, Dr Craven's evidence was that
people who usually cough do not regard a cough as pathological and
only go to the doctor
once additional symptoms have manifested. Such
evidence also accords with common sense and with the probabilities.
In instances
where people have become ill with TB, they accordingly
cough up bacteria until such time as they have manifested additional
symptoms
which make them realise that they are ill. In the closed
prison environment which is characterised by poor ventilation and a

lack of sunlight, this means that the bacteria remain active for
some time. Moreover, with each person who has become ill with
TB,
but has not been diagnosed, the pool of TB bacteria increases.
Fellow inmates who are not ill with TB are, however, exposed
to the
TB bacteria which may be present in a cell for 23 hours each day;
[257.2] According to the
evidence, prison gangs had their own 'doctors' or 'inyangi', who
exercised control over inmates and who
dictated when inmates could
see the prison doctor. Inmates who were ill with TB could
accordingly be prevented from seeking timeous
medical assistance,
thereby increasing the pool of bacteria in the prison environment;
[257.3] the number of nurses
employed at the maximum security prison were wholly insufficient to
cater for the needs of inmates.
As Mr Muller testified, it was
accordingly not possible for a nurse to visit each of the sections
on a daily basis so as to attend
to inmates' complaints. It was also
practically difficult for inmates to get to the hospital to see the
doctor, as was testified
to by Dr Theron and the plaintiff. The
number of warders was insufficient and there were many gates and
check points to traverse.
Dr Theron testified that there had been
several cases in the maximum security prison where prisoners with
active TB had been
incarcerated for 3 or 4 months without having
been referred to the hospital, because of difficulties with access;
[257.4] There was insufficient
monitoring of suspected TB cases. Nurses did not get to see inmates
in the sections on a daily
basis, due to the staff shortage.
Although Mr Gertse tended to suggest that the 'suspect register' was
already being used at
the time of the plaintiff's incarceration, it
is by no means clear that this was the case. Mr Gertse's evidence
was tainted by
unreliability on account of his bias in favour of
defendant's case and the fact that he did not appear to have much
respect for
the truth. However, even if one were to accept that the
register was being maintained, Mr Gertse testified that in instances

where sputum tests produced negative results, such results were not
brought to the attention of the doctor. Sputum tests do not
always
produce positive results in instances where a patient is already ill
with TB. This was illustrated in the plaintiff's
own case. If
prisoners whose sputum tests produced negative results were referred
to the doctor, the latter would, at least,
have been able to perform
a proper chest examination in order to determine whether there was
evidence of any underlying pathology
which required further
investigation and/or treatment. Given the failures in the system
alluded to above there was, however,
no proper follow-up of
suspected TB cases.
[258.] In light of the
circumstances adverted to above, the crisp answer to the question as
to whether the defendant took reasonable
steps to guard against the
spread of TB, or to curb its spread in the maximum security prison,
is no. There is no evidence that
the defendant, or members of the
DCS took any steps whatsoever to guard against the spread of TB in
the maximum security prison.
It follows that the defendant's
omission(s) referred to above, constituted negligence.
Allegations of Negligence
Found to Have been Proved
[259.] On the totality of the
evidence, at appears to me that the Plaintiff has proved the
following elements of his claim on
preponderance of probabilities:
[259.1] That it was common for
inmates, including the plaintiff, to be congregated in close
proximity to one another and to be
housed in mass cells;
[259.2] That a considerable
proportion of prisoners were ill with TB and were infectious, but
that they were not isolated from
the general prison population;
[259.3] That it was reasonable
to expect that persons who were in the infectious stage of the
disease, would expel TB bacteria
by coughing, sneezing or spitting
and that such bacteria would infect fellow inmates who were in close
proximity to them;
[259.4] That it was reasonable
to expect that some of the inmates who were infected with TB
bacteria as aforesaid, would themselves
become ill with the disease;
[259.5] That the plaintiff was
infected with TB bacteria during his imprison­ment and became
ill with the disease;
[259.6] That the responsible
authorities could have prevented, or curtailed, the spread of TB in
the maximum security prison by
providing sufficient numbers of
adequately trained nursing staff to properly screen incoming
prisoners for TB, to screen inmates
regularly for TB, to effectively
counsel those inmates who had been in close contact with freshly
diagnosed TB patients and to
apply the DOTS system effectively;
[259.7] That the responsible
authorities failed to prevent or curtail the spread of TB as
aforesaid and failed to provide adequate
numbers of nursing staff to
perform the aforesaid tasks;
Was the
defendant's failure to take reasonable steps as aforesaid unlawful
?
[260.] As appears from the
extract of the Plaintiff's Particulars of Claim which has been
referred to in paragraph [6] above,
the plaintiff has alleged that
the conduct of the responsible authorities was unlawful in that the
plaintiff's rights at common
law, under the Correctional Services
Act 1959 and under the Constitution, were violated.
[261.] If it
is found that an omission is culpable, because a reasonable person
in the position of the defendant would not only
have foreseen the
harm, but would also have acted to avert it, that is not the end of
the matter. Negligent conduct consisting
of an omission is only
visited with liability in circumstances that the law regards as
sufficient to give rise to a legal duty
to avoid negligently causing
harm. Whether or not such a legal duty is to be imposed, must be
determined by the courts upon a
consideration of public and legal
policy which is consistent with constitutional norms
8
.
[262.] As
was pointed out in
Van
Du'wenboden
9
the
reluctance to impose liability for omissions is often founded on the
concept that individuals are free to mind their own business
and the
protection which is afforded by the Bill of Rights to equality,
personal freedom and privacy may further militate against
imposing
legal duties on private citizens. Different considerations, however,
apply in instances where the conduct of a public
authority or
functionary is in issue. Public functionaries are, after all,
usually charged with serving the interests of the
community so that
their failure to act cannot be dealt with on the same footing as an
omission on the part of private individuals.
In the interests of
effective government, public functionaries must be afforded the
freedom to arrange their affairs and to provide
public services
without the constant threat of litigation if they were to act
negligently. The position of public functionaries
is, however,
different from that of private individuals in a most important
respect. The Constitution expressly imposes certain
obligations upon
the State. So, for example, section 7 of the Constitution requires
the State to protect, promote and to fulfil
the rights embodied in
the Bill of Rights. Section 2 of the Constitution demands that the
obligations imposed by the Constitution
be fulfilled and section
41(1) expressly provides that all spheres of government and all
organs of State within such spheres
must provide government that is
accountable, in addition to being effective, transparent and
coherent.
[263.] The
defendant is ultimately responsible for the safety, health and
well-being of prisoners. In fulfilling that responsibility
the
defendant, in accordance with his obligations in terms of the
1958-Act and the Constitution, must clearly take such steps
and do
such things as may be necessary to ensure
that
the right of a prisoner to treatment which is not inhuman or
degrading, is preserved, as well as his right to dignity.
[264.] In the instant case, it
appears to me that the plaintiff's rights as aforesaid have been
violated. The evidence clearly
shows that the plaintiff was detained
in extremely overcrowded and poorly ventilated cells. Although the
plaintiff received adequate
medical treatment once he had been
diagnosed with TB, the severe shortage of qualified nurses caused
health services in the prison
to break down. As a consequence,
persons who were ill with TB were not routinely provided with
adequate treatment and TB, inclusive
of MDR-TB and XTR-TB became
prevalent in the prison. In addition, the defendant and/or his
officials at the maximum security
prison failed to act in accordance
with the provisions of section 23 of the 1959-Act and the standing
orders, inasmuch prisoners
with infectious diseases, such as TB,
were not routinely separated from the remainder of the prison
population, thereby facilitating
the spread of the disease, given
that the inmates found themselves in a closed, poorly ventilated
environment. Instead of adopting
measures to curtail the spread of
TB in the maximum security prison, such as adequate screening, the
authorities relied on a
wholly inappropriate self-reporting system
which permitted persons with TB to remain in the general prison
population. The authorities
had been warned in graphic terms that
the situation at Pollsmoor, inclusive of the maximum security
prison, was grave cause for
concern and that conditions at the
prison were conducive to the risk of spreading TB, bur failed to
address the problems in any
meaningful manner.
[265.] The
conditions under which the plaintiff was detained show considerable
similarity with those in the case of Kalashnikov
v
Russia,
an application decided by the European Court of Human Rights under
the Convention for the Protection of Human Rights and
Fundamental
Freedoms. Kalashnikov had been detained in a pre-trial prison which
was particularly overcrowded. His cell was so
overcrowded that
inmates had to take turns to sleep. There was an absence of adequate
ventilation, but despite such situation
prisoners smoked in the
cell. He was allowed outside for exercise for 1 or 2 hours per day,
but spent the rest of the time in
the cell with limited space for
himself and in a stuffy atmosphere. The cell was infested with pests
and he contracted various
skin diseases and fungal infections
throughout his detention. On occasion he was detained with persons
suffering from TB and
syphilis.
[266.] Albeit that the European
Court of Human Rights found that the Russian government had not had
the direct or positive intention
of humiliating or debasing the
applicant, it found that the conditions of detention, in particular
the severely overcrowded an
insanitary environment and its
detrimental effect on the applicant's health and well-being,
combined with the length of his detention
(from June 1995 to October
1999, i.e. a period of approximately 4 years) amounted to degrading
treatment.
[267.] The circumstances under
which Kalashnikov was incarcerated, appear to have been somewhat
worse than those which prevailed
at the maximum security prison
where the plaintiff had been detained. However, whereas there was
evidence before the European
Court that the Russian government were
doing their best to improve conditions of detention in Russia, the
defendant has not proffered
any such evidence. Although Mr Jamie
mentioned in argument that the defendant was subject to certain
financial constraints, there
was in fact no evidence to that effect.
[268.] Prison inmates live in
an environment which is closed and which puts them at the mercy of
defendant and his officials.
It was the duty of the defendant and
his officials, in terms of the 1958-Act and the Constitution, to
provide prisoners with
treatment which is neither inhumane nor
degrading and to preserve prisoners' right to dignity. The failure
of the defendant and
his officials to do so is, in my view, not
justifiable, whether in terms of section 36 of the Constitution or
otherwise. These
considerations must weigh heavily in favour of a
finding that the defendant's conduct, and that of his officials, was
unlawful.
A further factor which must be borne in mind is that the
plaintiff would have no means of redress if the defendant's conduct

- and that of his officials - was held to be lawful. The result
would be that the responsible authorities could ignore their duties

to prisoners with impunity. In my view, neither public nor legal
policy, nor the provisions of the Constitution, could have intended

such a wholly inequitable and unjustifiable result.
[269.] It follows that, in my
view, the conduct of the defendant and his officials in omitting to
take steps to guard against
the spread of TB in the maximum security
prison as aforesaid, was unlawful.
[270.] In the result, the
following order is hereby made:
1. The defendant is declared to
be liable to the plaintiff in delict pursuant to the plaintiff
having become ill with TB whilst
he was incarcerated in the maximum
security prison at Pollsmoor;
2. The registrar is requested
to set the matter down for hearing, in consultation with the Judge
President, in order for the parties
to lead evidence pertaining to
the quantum of the plaintiff's damages in respect of his illness
with TB as aforesaid and the
sequelae thereof;
3. Defendant is to pay the
plaintiff's costs of suit as between party and party.
A M DE SWARDT, A J
1
AR
445B-F, PARA [19]
2
Minister
of Safety and Security v Van Duivenboden, supra, at 446G-H
3
At
447B-E
4
At
125B-F para [12]
5
At
1258E-F, para [14]
6
1966(2)
SA 428 (A) at 430E-F
7
mCubed
International (Pty) Ltd & Another v Singer & Others
2009 (4)
SA 471
(SCA) at 479F-J and cases there cited
8
Minister
of Safety and Security v Van Duivenboden, supra, paras [12] - [17]
at 441E-444G. See also Mcintosh v Premier Kwa Zulu
Natal
[2008] 4
All SA 72
(SCA) at 77d-f
9
Supra,
paras [19] - [20] at 445B-446E