One of the group of 15 prisoners who applied in May to the Durban High Court for access to ARV treatment ‘ known by his initials MSM ‘ died three weeks ago (6 August).
Three other prisoners identified only as EN, DM and EJM, have CD4 counts of below five. A fourth, BM, has a CD4 count of 25 and was recently hospitalised with a potentially fatal infectious disease, toxoplasmosis.
Only two of these four prisoners are on ARVs, which they started less than a month ago. Government’s treatment guidelines recommend that patients start ARVs once their CD4 count (which measures immunity) drops below 200.
Jonathan Berger from the AIDS Law Project, which is representing the prisoners, said this week that the ALP had not been able to see its clients for at least two weeks (CHECK).
‘We are not able to say what the state of their health is as we are having difficulty getting access to our clients,’ said Berger. ‘The Department of Correctional Services has now decided that we have to apply to the State Attorney if we want to see them.’
Berger said he was particularly concerned about ‘BM’, who was very sick ‘and might not make it’.
The court battle has been going on since April, when the ALP lodged an urgent application for the removal of all obstacles preventing the 15 men from getting ARVs.
At that stage, none of the men were on ARVs despite the fact that the Department of Correctional Services had known for many months that some were in urgent need of the medication.
In the case of the dead prisoner, MSM, the Department of Correctional Services had known since November 2004 that he qualified for ARV treatment ‘ yet he was not given ARVs until last month.
KwaZulu-Natal Correctional Services Commissioner Nathi Nhleko this week refused to comment on why prison authorities had not ensured ARV treatment for MSM, saying he ‘did not have the particulars of that case’.
Addressing a press conference, Nhleko said that the Department of Correctional Services (DCS) had a ‘comprehensive HIV and AIDS programme’ and that ARVs were available for prisoners who needed them.
However, the government has consistently opposed the prisoners’ application for the removal of obstacles to their ARV treatment.
In June, Judge Thumba Pillay ordered government to remove all obstacles barring Westville prisoners from getting ARVs, get an immediate medical assessment of all prisoners needing ARVs and report back to the court on its plans to do so.
However, government appealed against this judgement and applied for Pillay to recuse himself (see box).
In mid-July, the ALP argued that it would be outrageous to suspend the court order until the appeal had been heard as the prisoners’ lives were at stake.
On 25 July, Judge Pillay then granted an interim order that his June judgement be implemented immediately.
Last Wednesday (23 August), the ALP and government met again in court as government is also appealing against the interim order. Judgement in this matter is expected tomorrow (28 August).
Nhleko says that it currently takes 42 days for a prisoner to get ARV treatment from the time that he reports sick and that 47 Westville prisoners are now on ARVs. The DCS follows an 11-step process, based on the health department’s treatment guidelines.
Health department spokesperson Sibani Mngadi added that government was committed to progressively ensuring that the prisoners had access to healthcare, as required by the Constitution.
The Health Department is also considering making Westville Prison an ARV treatment site.
However, the ALP is concerned that the prison authorities wait until HIV positive prisoners get sick before putting them on a treatment programme.
Chronology of the court case
12 April 2006: The AIDS Law Project (ALP) lodges an urgent application for all obstacles preventing its clients, 15 HIV positive prisoners at Westville Prison, from getting antiretroviral (ARV) treatment to be removed. The government, head of Westville Prison, Minister of Correctional Services, KZN Area Commissioner of Correction Services, Minister of Health and KZN Health MEC are cited as respondents.
3 May: The matter comes to court and is adjourned till 30 May for the government to file answering papers.
30 and 31 May: The government applied for the recusal of Judge Thumba Pillay on basis that his daughter is the ALP’s correspondent attorney. This means that she is ALP’s agent, not the prisoners’ attorney, and serves, files and receives documents on behalf of the ALP. The application denied and the state seeks leave to appeal.
22 June: Judge Thumba Pillay rules that government must remove any obstacles preventing all prisoners at Westville Prison from getting access to ARV treatment, provide ARVs to all those who need them and state in an affidavit filed in court what steps it plans to take to ensure that this happens. Judge Pillay also grants government the right to apply to a full bench of the Natal Provincial Division for his recusal.
6 July: Government applies for leave to appeal against the judgement.
20 July: The ALP argues that the original court order granted on 22 June should be implemented, as a delay would cause the prisoners irreparable harm.
25 July: Judge Pillay grants an interim order that government must remove obstacles to ARV treatment for Westville prisoners and provide them with ARV treatment and that government must report back to the court on steps taken to do so by 14 August.
14 August: Government does not report back to court as ordered, so is technically in contempt to court.
15 August: Government lodges an application for leave to appeal against the interim order.
18 August: The ALP lodges an application for a second interim execution order to get ARVs for the prisoners.
23 August: The matter is argued before Judge Chris Nicolson, as was Government’s application for leave to appeal against Judge Pillay’s interim execution order of 25 July.
28 August: Judgement is expected on government’s leave to appeal. If this is not granted, Judge Nicolson will not have to rule on the ALP’s application for a second execution order, as the first execution order will stand.