South Africa: The Wards Of The State

Last Updated: 11 February 2013
Article by Neil Kirby

A recent decision by the Constitutional Court of South Africa in Lee v Minister of Correctional Services and Others case CCT 20/12 [2012] ZACC 30 ("the Lee decision") has shed further light on issues concerning the meaning of access to reasonable and quality healthcare services.

This judgment, although confined to matters within the Department of Correctional Services, does indicate how the provisions of section 27 of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), which deals with everyone's right to access healthcare services, is being developed by our courts. This development is important within the context of the current debate on the proposed implementation of a National Health Insurance Scheme (NHIS).

Is the State to blame?

The Lee decision ultimately was concerned with a claim in delict by Mr Lee against the Minister of Correctional Services due to the fact that Mr Lee, during his stay in Pollsmoor Prison in the Western Cape, contracted tuberculosis. Mr Lee argued that contracting tuberculosis in Pollsmoor Prison could have been avoided had the Department of Correctional Services taken adequate steps to ensure that tuberculosis was controlled within the prison population:

The following appeared from the Statement of Agreed Factual Findings: the applicant was not infected with TB when he arrived at Pollsmoor; the responsible authorities were 'pertinently aware of the risk' of inmates contracting TB; TB is an airborne communicable disease which spreads easily especially in confined, poorly ventilated and overcrowded environments; Pollsmoor is notoriously congested and inmates are confined to close contact for as much as 23 hours every day – this providing ideal conditions for transmission; on occasion, the lock up total was as much as 3 052 inmates and single cells regularly housed three inmates; communal cells were filled with double and sometimes triple bunks; the responsible authorities relied on a system of inmates selfreporting their symptoms upon admission to the prison and during incarceration; and the control of TB at Pollsmoor depends upon effective screening of incoming inmates, the isolation of infectious patients and the proper administration of the necessary medication over the prescribed period of time.1

The element of causation

Primary amongst the matters for decision by the Constitutional Court was whether or not Mr Lee was able to prove that his tuberculosis was caused as a result of his presence at Pollsmoor Prison. These matters resulted in a number of findings by the Constitutional Court on the element of causation in the legal test that is applied to determine whether or not a delict has occurred in South African law. However, within the context of the debate about whether or not Mr Lee's infection was caused by his incarceration at Pollsmoor Prison and the lack of control by the prison authorities of TB or a programme to control TB, issues arising in respect of access to proper and reasonable healthcare services formed part, crucially, of the debate:

There was thus nothing in our law that prevented the High Court from approaching the question of causation simply by asking whether the factual conditions of Mr Lee's incarceration were a more probable cause of his tuberculosis, than that which would have been the case had he not been incarcerated in those conditions. That is what the High Court did and there is no reason, based on our law, to interfere with that finding.2

The State has a duty

Therefore, the issue of the healthcare conditions within which Mr Lee was incarcerated becomes vital to the inquiry on whether or not the State had acted or failed to act and thus caused an injury, which was unlawful, to Mr Lee. Therefore, the duty that was required to be fulfilled by the State was one of ensuring that Mr Lee's conditions were conducive to his health and not his ill health in relation to him contracting tuberculosis whilst imprisoned:

That there is a duty on Correctional Services authorities to provide adequate healthcare services, as part of the constitutional right of all prisoners 'conditions of detention that are consistent with humane dignity', is beyond dispute. It is not in dispute that in relation to Pollsmoor the responsible authorities were aware that there was an appreciable risk of infection and contagion of TB in crowded living circumstances. Being aware of that risk they had a duty to take reasonable measures to reduce the risk of contagion.3

Respecting the individuals' right to healthcare

The issue therefore is what steps Correctional Services, which in this case is the State for all intents and purposes, should have taken to respect the rights in the Bill of Rights including, but not limited to, section 27, dealing with the right to access healthcare services, and the rights enjoyed by prisoners pursuant to section 35(2)(e) of the Constitution vis ă vis Mr Lee? This is an important aspect of how one is to approach healthcare services within the context both of what it is that the State should do in light of an appreciable harm to which the population in general or a particular population is exposed and steps that it must take within its reasonable resources to address the exposure of that population to that risk. Tuberculosis is not only an issue within the context of prison communities but within the context of the South African population as a whole.4 The Constitutional Court in examining the judgment by the Supreme Court of Appeal summarised the approach that must be taken to issues concerning healthcare by the State as follows:

The Supreme Court of Appeal acknowledged that an effective programme did not exist during Mr Lee's incarceration, as evidenced by superficial screening and the failure to isolate inmates who had TB. If the proper process has been followed, this would not have happened. In my view, it is legitimate to draw the inference that this is probably how Mr Lee contracted the disease. As I understand the logic of the Supreme Court of Appeal's approach, it is not possible to make this kind of inference of likely individual infection from the fact that a non negligent system of general systemic control would generally reduce the risk of contagion. I do not agree.5

Matters concerning therefore what is and is not reasonable as steps for the State to take to address issues concerning healthcare turn on:

  • the nature of the disease in question;
  • its spread across a population;
  • the vulnerability of that population to infection;6 and
  • the ability of the State to appreciate and be able to take steps to implement programmes to prevent contagion.

All of the steps mentioned above are reasonable steps for the State to take within the context of providing access to healthcare services that are consistent with the Constitution. :

" [Reasonable measures] [in casu] which translate into the proper screening of incoming [inmates], inclusive of a physical chest examination; separating out those who had, or were suspected of having TB, or who were obviously undernourished and vulnerable to TB; the provision of adequate nutrition to those who were under nourished and otherwise vulnerable to TB; regular and effective screening of the prisoner population, inclusive of examinations by means of X Rays and/or physical chest examinations by means of a stethoscope, to identify possible TB infection; isolation of an infectious inmate and effective implementation of the DOTS system over the prescribed period of time."7

Defining the accountability of the State

The meaning of constitutional access to healthcare services therefore is a matter that now is to be addressed with reference to a particular criteria determined by the Constitutional Court within the context of the traditional system of delict law within the South African common law. Whilst, at first blush, one may simply dismiss the Lee judgment as a judgment dealing with this development of the law of delict, more particularly, the element of causation within the test for a delict, this is not the case when one views the Lee judgment within the current debate concerning what should or should not be an appropriate system of National Health Insurance for South Africa.

The State bears direct constitutional obligations in respect of the provision of healthcare services and whilst its obligations must be executed within the resources available to the State, the ability of the State effectively to plan for dealing with matters concerning healthcare does, within the context of what is or is not foreseeable, require, arguably, the State to begin ensuring that resources are available to address matters concerning particular healthcare concerns within the Republic of South Africa including those healthcare concerns identified in the annual report, referred to above, which include tuberculosis and HIV and AIDS and the state of public health establishments:

The responsible authorities' function is to execute its duties in accordance with the purposes of the Act which include detaining all inmates in safe custody whilst ensuring their human dignity and providing adequate healthcare services for every inmate to lead a healthy life. The rule of law requires that all of those who exercise public power must do so in accordance with the law and the Constitution. This, including the requirements, the accountability and responsiveness provides 'additional' reasons for finding in favour of the applicant and imposing delictual liability. This will enhance the responsible authorities' accountability, efficiency and respect for the rule of law.8


Matters concerning the manner in which South Africans will access healthcare services and should be accessing healthcare services rest squarely now on matters of –

  • expenditure by the State in so far as deploying reasonable healthcare services to the population are concerned and potentially, in circumstances where those resources are not deployed reasonably, to deal with possible exposure to legal liability as a consequence; and
  • an assessment of other vulnerable communities or populations who may be susceptible to healthcare risks, especially those in or relying upon public health establishments.

Certainly, the Lee judgment marks an important turning point in two fundamental respects –

  • the manner in which healthcare services, or a lack thereof, are to be evaluated by the population receiving those services; and
  • the manner in which the State is required to deploy resources to provide those services, especially within the context of the burden of disease currently prevailing in South Africa, and consequently the State's liability where it fails to do so.


1 At paragraph 8 of the Lee judgment

2 At page 55 of the Lee judgment

3 At paragraph 59 of the Lee judgment

4 See the annual report published by the Department of Health for 2011 – 2012 dated 30 August 2013 at pages 50 to 58

5 At page 62 of the Lee judgment

6 See paragraph 65 of the Lee judgment in respect of vulnerable populations

7 See paragraph 66 of the Lee judgment as well as paragraph 58 of the decision by the Supreme Court of Appeal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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