Important note: Information in this article was accurate in 2006. The state of the art may have changed since the publication date.
South African Press Association - July 25, 2006
The court simultaneously ordered prison authorities to provide the service pending the appeal.
Judge Thumba Pillay granted the six respondents -- the government, the head of Westville correctional centre, the minister and area commissioner of correctional services, and the minister and KwaZulu-Natal provincial minister for health -- leave to appeal to the Natal Provincial Division against the order, rather than to the Supreme Court of Appeal.
At the same time, he ordered that his original order to speed up the provision of ARVs to all needy prisoners at Westville, issued on June 22, be implemented pending the outcome of the appeal.
The original application for provision of ARV treatment was brought by 15 Westville prisoners and the Treatment Action Campaign, represented by the Aids Law Project. One of the 15 has been released and another is on treatment. The order applies to all prisoners at Westville.
Tuesday's simultaneous applications arose when the Aids Law Project applied for an order to compel the state to expedite the provision of ARVs in terms of the June 22 ruling, despite the pending appeal. Both applications were opposed.
Pillay said "there are reasonable prospects of success on appeal" and noted that he had already granted the state leave to appeal against his earlier refusal to recuse himself from the matter.
At the same time, he said the June 22 order should be implemented as any prejudice to the state "pales into insignificance" when compared to the potential for prejudice to the prisoners.
"I am fully aware of the prejudice to the health and life of the applicants if the usual effect of the appeal process results in the suspension of the order," said Pillay.
"For the applicants it is a matter of life and death. For the respondents it involves no more than the conduct of an exercise and thereafter setting out in affidavit form how it intends to carry out its obligation in terms of its operational plan and guidelines, [with] which the respondents have consistently maintained they are already complying."
Pillay said the June 22 order had already resulted in action by the prison authorities in respect of the remaining 13 prisoners.
"There is, however, a deafening silence on what is being done for the remaining similarly affected prisoners."
Pillay said it was not enough to say that the prisoners were on therapy, as the court had been told some were seriously ill. He noted that prison authorities had referred to 50 prisoners who would require urgent treatment. Prison authorities had also said that nine prisoners a month died of Aids since the beginning of 2005.
Pillay said "much more needs to be done" by the prison authorities to comply with their constitutional obligations.
He emphasised the need for a "speedy conclusion".
Costs in both matters were reserved pending the outcome of the appeal. Pillay recommended a preferential date for the hearing of the appeal.
The Aids Law Project welcomed the judgment.
"We're happy with the fact that our applicants and other prisoners won't be prejudiced by the appeal process," said an organisation spokesperson.
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