Jan 24,2013 / News / Legal Brief

Not only prisoners but all South Africans should be heartened by the Constitutional Court’s recent finding in favour of a former inmate who contracted tuberculosis (TB) while in prison.

“On the face of it, the case of Lee vs Minister of Correctional Services and Others seems relevant only to the prison population of South Africa. I however believe it goes much further than that,” says Neil Kirby, director of healthcare and life sciences at Werksmans Attorneys.

“In fact, this judgement has a bearing on everyone’s constitutional right to access reasonable and quality healthcare services,” Kirby says. “It is especially important in the context of the current debate on the proposed implementation of a National Health Insurance Scheme.”

In this matter, Dudley Lee, a former awaiting-trial prisoner at Pollsmoor Prison in Cape Town, said he did not have TB when he arrived at the prison. He argued that he would not subsequently have contracted the disease had the Department of Correctional Services taken adequate steps to ensure it was controlled within the prison population.

At the time, conditions at Pollsmoor were rife for the spread of TB. Among other things, there was severe overcrowding, confinement in close contact for up to 23 hours a day, no effective screening of incoming inmates and the authorities’ failure to isolate infected patients.


The Constitutional Court agreed that if proper processes had been followed, Mr Lee – who was later acquitted – would probably not have contracted TB while in prison. The Court also said Correctional Services had a duty to provide adequate healthcare services as part of the constitutional right of all prisoners to conditions that are consistent with human dignity.

“Going further, the Constitutional Court spelt out reasonable steps that should have been taken to address the prison community’s exposure to the risk of contracting TB,” says Kirby. Reasonable steps listed by the Constitutional Court included proper screening of incoming inmates, separating out those who had or were suspected of having TB, providing adequate nutrition to undernourished inmates vulnerable to TB, regular and effective screening of the prison population, and isolating infectious inmates.

“However, TB is not only an issue within prison communities, but within the South African population as a whole – as are HIV and AIDS and the state of public health establishments. Thus, the Lee judgment sheds further light on the meaning of access to reasonable and quality healthcare services, as well as on the State’s constitutional obligations for the provision of such healthcare services,” he says.

This is where the current debate about an appropriate system of National Health Insurance for South Africa comes into play.

“The Lee decision places responsibility and accountability for the provision of reasonable, quality and effective healthcare services to the population squarely on the shoulders of the State,” Kirby says. “The implication is that where the resources available to the State are not deployed reasonably, the State will have to deal with possible exposure to litigation by patients as a possible consequence.”

“Certainly, the Lee judgment marks an important turning point in the manner in which healthcare services are to be evaluated by the population receiving those services,” Kirby says. “Similarly, it represents a further turning point in how the State is to deploy resources to provide those services – especially in the context of the burden of disease currently prevailing in South Africa.”