South African Constitutional Court affirms prisoner rights

Dudley Lee v Minister of Correctional Services [2012] ZACC 30 (11 December 2012) Summary

The Constitutional Court of South Africa affirms that domestic law must provide an effective remedy for breach of rights contained in the South African Bill of Rights and that failure to minimise the risk of contracting a tuberculosis infection in prison breaches the right to humane conditions in detention.

Facts

Mr Lee contracted tuberculosis (TB) while incarcerated in a crowded, maximum security prison with poor hygiene standards in South Africa. The responsible authorities acknowledged that they relied on a system of self reporting of symptoms upon admission and during incarceration, even though TB is an airborne disease requiring isolation, medication and constant vigilance to contain the spread of infection.

Mr Lee sued the Minister for Correctional Services in tort alleging the Department of Correctional Services, controlled by the Minister, had negligently failed to assure Mr Lee’s rights to life, freedom and security of person and the right to humane conditions of detention consistent with human dignity contained in the South African Constitutional Bill of Rights.

Lower court decisions

At first instance the Western Cape High Court (Cape Town) held that the acts and omissions of prison authorities amounted to a dereliction of statutory and constitutional duty to protect human rights as there were a number of steps that a reasonable person in the Minister’s position would have taken to manage and mitigate the spread of TB.

The Supreme Court of Appeal accepted the lower court’s findings that the Minister and the responsible authorities had failed to adequately protect inmates from contagion, and the Court affirmed the obligation on state authorities to assume responsibility for prisoner welfare when a person is delivered into the absolute power of the state.

However, the Court of Appeal held that under the operative “but for” test for causation the applicant could not establish the state’s actions had caused his injury since it was possible that, regardless of how many measures were adopted to reduce the risk of TB infection it could not be eliminated and it was possible that Mr Lee could have been infected by someone who the prison authorities could not reasonably have known was infected.

Decision

On final appeal, a 5:4 majority of the Constitutional Court of South Africa reversed the Court of Appeal’s decision holding that the principle of probable causation, which was a settled aspect of the common law test of causation, applied to deal with situations where “common sense may have to prevail over strict logic”. The practical impossibility of eliminating TB, the Court said, did not lessen the state’s duty to try to reduce the risk.

Notably, both the Court of Appeal and the Constitutional Court determined that to give practical effect to constitutionally protected rights, which the state has an obligation to uphold under section 7(2), the law must provide a mechanism for compensation for breach of those rights; and if the Court of Appeal’s formulation of legal causation had been adopted, it would be practically impossible for a prisoner to establish their cause of action since they could not prove the authority’s omissions were the direct cause of infection.

The dissenting judges accepted the Court of Appeal’s “stricter” formulation of the but-for test represented current South African law but that it “is an over-blunt and inadequate tool for securing constitutionally tailored justice” (citing developments in other common law jurisdictions to achieve more just outcomes). Nevertheless, the minority considered the matter should be remitted to the trial court to receive additional evidence and to consider how the common law could be developed to remedy the injustice.

Commentary

This case highlights the limitations of archaic common law causes of action to respond to and redress human rights abuses and the need for redress to protect and advance the status of rights.

Section 7 of the South African Constitution states that authorities have an obligation to protect and enhance rights but does not go as far as the UK Human Rights Act, the European Convention on Human Rights and the ACT Human Rights Act, which positively state that remedies shall be available for breach of rights (but only certain rights in the ACT). Nevertheless, the Court (without examining international jurisprudence) determined that compensation in the form of damages was a necessary corollary of the rights contained in the Constitution and to uphold other constitutional principles of government accountability.

By comparison, under the Victorian Charter of Human Rights damages are specifically excluded as compensation for breach of protected human rights (section 39(3)) and breach of a right contained in the Charter can only be raised as an adjunct to another statutory or common law cause of action (like this case, these causes of action are often not adapted to a rights-based framework).

While damages were the focus of this proceeding, it is also important to note that in international law, the obligation to provide an effective remedy may, depending on the facts of the case and the rights engaged, encompass reparation, rehabilitation, a public apology, independent investigation of the breach and measures to prevent future breaches.

This case also adds weight to the existing body of international case law that confirms that the right to humane treatment in detention in article 10 of the ICCPR encompasses proper standards of health care, hygiene and nutrition to prevent and respond to known health concerns.

This decision is available online at: http://www.saflii.org/za/cases/ZACC/2012/30.html

Madeleine Forster is a secondee at the Human Rights Law Centre.