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 ã 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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions