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Aids prisoners go free

Court grants parole for man with six months to live

September 14, 2004 Edition 1

Siyabonga Mkhwanazi

Two terminally ill convicts have, after a long struggle to be paroled on humanitarian grounds, been ordered released with immediate effect by the Johannesburg High Court.

Their case could have implications for other prisoners who are HIV-positive or have full-blown Aids. Earlier this year the inspecting judge of prisons, Judge Hannes Fagan, in arguing for a large-scale release of prisoners to prevent prison overcrowding, said a couple of thousand terminally ill patients could be safely released.

According to official statistics, in March this year there were 7 382 prisoners countrywide who were HIV-positive or had full blown Aids. Natural deaths in prison have increased by about 800% over seven years, largely because of HIV/Aids and related opportunistic diseases, Fagan said.

Prisoner RS and Prisoner MT*, who are both infected with HIV, are part of a group of 108 prisoners who yesterday began taking the Minister of Correctional Services, Ngconde Balfour, and his department to court to challenge parole conditions.

The prisoners, 29 of whom were heard yesterday, argued that inefficiency within the Department of Correctional Services and in the office of the State Attorney had led to their parole applications being delayed for up to three years - and that they wanted their applications heard before the end of the month, when a new Parole Act comes into being.

In terms of the new law, prisoners will have to serve at least half of their sentences before being considered for parole - as opposed to the third they now have to complete, and their victims will from next month have a say in whether or not they are freed.

In their application, argued by their counsel, advocate Isabel Ehlers, Prisoner RS and Prisoner MT said their deteriorating health warranted their release. "One is entitled, even if he is a prisoner, to die a dignified death," said Ehlers.

The intransigence of the authorities in refusing to release the two men was uncalled for as both prisoners were terminally ill, she said.

She argued that Prisoner RS's situation was so serious that two doctors had confirmed earlier this month that he had only six months to live.

Prisoner MT's situation was also acute in that he had not been receiving anti-retroviral drugs in prison. Ehlers said her clients' predicament was similar to that of William du Plooy, who was released from prison in March this year because he was also terminally ill.

The Department of Correctional Services had refused to release Du Plooy, who had been suffering from cancer, on medical parole. But Pretoria High Court Judge Essop Patel rebuked the department, saying it had violated Du Plooy's right to dignity.

Opposing the application, State counsel advocate Graham Bester argued that the facts in the two cases differed from those of Du Plooy.

Quoting Patel's ruling, he said: "Du Plooy was on his deathbed. He was staring death in the face."

This was not the case with the two applicants, he said, adding "release on medical parole should not be construed as a right".

Bester said it was untrue that Prisoner MT, whose CD4 cell count is 119, had not been receiving treatment.

"He has been prescribed a high-protein diet. He has been treated on a daily basis. He has been monitored at Baragwanath hospital on a monthly basis".

Release

Passing judgment yesterday, Judge Kathy Satchwell ordered that the two applicants be released immediately. "This court is responsible for ensuring that the rights of prisoners are honoured," she said, adding that the constitution provided that prisoners had a right to human dignity.

Satchwell said it was unacceptable that Prisoner MT had yet to receive adequate treatment for his illness.

With regard to Prisoner RS, the judge said: "Both doctors (who examined him) confirmed that he has reached a stage where he has a short life expectancy. They recommend that he be placed on medical parole. Prisoners, like free people, have health needs."

Satchwell also ordered that 15 prisoners, who had already served a third of their sentence and were eligible for parole, be considered for possible release on parole before the end of this month.

The court postponed to October 7 the applications of 12 other prisoners who had not yet completed a third of their sentence.

Judge Satchwell will continue to hear prisoners' applications until the end of the week.

*The prisoners' names have been withheld to protect their privacy.