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 - August 30, 2006
"The department does not agree that the decision to appeal against the orders of the Durban High Court was intended to create a constitutional crisis," the department said in a statement.
"That was not argued in court, nor can it be raised to undermine the right of the state to appeal where it is appropriate. Democracy means that we are all subject to the Constitution and the laws of the country."
This was in reaction to a judgment issued by Judge Chris Nicholson on Monday. He dismissed the department's appeal to set aside an execution order compelling it to expedite antiretroviral (ARV) treatment to HIV-positive inmates of Durban's Westville prison.
In his judgment, Nicholson said: "If the government of the Republic of South Africa has given such an instruction [not to comply with the order] then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers.
"Should that continue, the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench."
The department added in its statement: "Correctional services also wishes to state unequivocally that at no stage has it ever defied or ignored court orders."
Nicholson had said in his judgment that the respondents -- who include the government as a whole -- were in contempt of the June 22 court ruling, which obliged them to file an affidavit explaining how they were going to implement the treatment.
The department said it respected the decision of the judiciary, its independence and will implement court orders.
"The department also accepts the ruling of the court regarding ... offender access to ARV therapy and treatment and will accordingly expedite the ARV treatment programme, which we have already been implementing with progressive success."
In May, the 15 inmates and the Treatment Action Campaign, represented by the Aids Law Project, filed an urgent application to compel the department to speed up ARV treatment in the prison.
On June 22 Judge Thumba Pillay granted the order, saying it applied not only to the 15, but to all inmates at the prison who required the treatment.
On July 25 Pillay granted the department leave to appeal, but ruled that it had to provide ARVs "with immediate effect" to all needy prisoners at Westville pending the outcome of the appeal.
Referring to its ARV therapy and treatment programme, the department said it was on course "to facilitate the accreditation" of Durban Westville Prison as an "ARV site".
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