Mail & Guardian (Johannesburg) - May 12, 1995
Justin Pearce

Prisoner Lucas Benny Gae didn't know he was being tested for HIV. Nor did he know the result of the test until he was told to pack his belongings and move to the A Section of the prison: the single cells which, according to jailhouse rumour, are reserved for prisoners infected with

The first time he was told officially about his HIV status, Gae claims, is when a prison warder told him, "sorry, you are HIV and no longer free to stay with other prisoners". Once he was in A Section, a notice on his cell door advertised his HIV status to anyone who walked by.

This week the Pretoria Supreme Court heard an interdict application by Gae and three other prisoners aimed at preventing the Department of Correctional Services from making public the HIV status of prisoners, and forbidding the conducting of HIV tests without the informed consent of the prisoner being tested.

The application also sought an end to the physical and verbal abuse --including epithets such as "Aids kaffirs" -- which the four prisoners claim to have received at the hands of prison warders, an allegation denied by the Department of Correctional Services.

The application argued that in terms of generally accepted medical ethics, HIV test results should be confidential between patient and doctor, given the widespread ignorance surrounding HIV infection and the stigma which is attached to people with the virus. The application also calls for prisoners to be informed of the HIV test results with due

Paul Kennedy, counsel for the applicants, argued that while earlier court rulings had upheld the principle that convicted criminals enjoyed only those rights prescribed by particular laws, the Bill of Rights in the present Constitution ensured that prisoners should enjoy the same rights as other citizens -- with the obvious exception of those rights which were contravened by the process of imprisonment itself.

Kennedy argued that taking HIV tests without consent and publicising the test results contravened the prisoners' right to personal privacy, human dignity, and freedom from discrimination, among others.

Questioning Kennedy, Judge Pierre Roux suggested that HIV negative prisoners had the right to protection from HIV infection -- and that since sexual intercourse took place in prisons often without mutual consent, segregation was necessary to protect uninfected prisoners. He argued that, given the policy of segregation, it was impossible to maintain confidentiality around HIV test results.

Kennedy replied that testing -- and hence segregation -- took place arbitrarily: "Those prisoners who remain in communal cells will no doubt include a large number who are HIV positive," Kennedy argued.

Even if segregation were inevitable, he added, there was no reason why all prisoners should know the basis on which prisoners were assigned to certain cells. The court has reserved judgment.

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