Example 4: Litigating for prisoners exposed to TB in South African prisons

Example 4: Litigating for prisoners exposed to TB in South African prisons

Lee v. Minister for Correctional Services, Constitutional Court of South Africa, Case CCT 20/12 [2012] ZACC 30.
Project Type: Litigation

Braamfontein, South Africa
E-mail:  info@section27.org.za
Website:  www.section27.org.za 

Treatment Action Campaign (TAC)
Cape Town, South Africa
Website:  www.tac.org.za 

Wits Justice Project
South Africa
Website:  www.witsjusticeproject.com


Mr. Dudley Lee was incarcerated in Pollsmoor Maximum Security Prison outside Cape Town, South Africa, from 1999 to 2004 on charges of counterfeiting, fraud and money laundering, among others. The prison was at over 200% occupancy and notoriously crowded, with 3 men in single cells and 40 to 60 men in communal cells. Inmates were confined in close contact for as much as 23 hours every day.

Mr. Lee was 53 years old when he entered Pollsmoor and he did not have TB. In June 2003, he was diagnosed with pulmonary TB. According to SECTION27, a public interest law center providing amicus support: “In September 2004—over four years after entering prison—he was acquitted of the charges against him and released. He then sued the Minister of Correctional Services in the Western Cape High Court in Cape Town for negligently causing him to become infected with TB.”

The Problem

South Africa has one of the highest rates of TB incidence in the world. TB is the county’s leading cause of death and is often compounded by HIV co-infection and drug resistant strains of TB. The risk is especially high in prisons, which combine overcrowding, poor nutrition and sanitation, poor health care, and inadequate infection control measures.

Under the South African Constitution, all individuals—including prisoners—have the right to life, to freedom and security of the person, and to be detained in “conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment”. Furthermore, Standing Correctional Orders require prison officials to screen, isolate, separate and treat prisoners infected with or at risk of TB.

In this case, Mr. Lee sued the South African government for negligence in its systemic failure to take preventive and precautionary measures in prison, causing him to be infected with TB. The lawsuit shows how litigation to enforce constitutional and statutory obligations can protect the rights of prisoners at risk of TB.


High Court. Mr. Lee filed suit in 2004. The case went to trial in 2009 and 2010. In 2011, the High Court ruled in his favor. It held that prison authorities failed to take adequate, or even any, steps to protect him against the risk of TB—including prevention, diagnosis and treatment measures, as well as adequate staffing, health care and nutrition.

Supreme Court of Appeal. In 2012, the Minister appealed to the Supreme Court of Appeal (SCA) which ruled against Mr. Lee. It found that prison authorities were in breach of their duties. However, Mr. Lee could not prove that their negligence caused his TB since he could not identify the “source” of his infection or show that reasonable precautions would have “altogether eliminated” the risk of infection.

Constitutional Court. Mr. Lee appealed to the Constitutional Court in 2012. The Treatment Action Campaign, Centre for Applied Legal Studies, and Wits Justice Project, represented by SECTION27, were admitted as amici curiae (friends of the court).

Arguments and Holdings 

The Constitutional Court considered the following issues on the merits: (1) whether the Minister’s negligent conduct caused Mr. Lee to contract TB; (2) if not, whether the common law needed to be developed to give effect to his constitutional rights and to avoid injustice.

The Court found that the SCA applied an unduly inflexible standard in determining the issue of causation. The SCA should have simply considered whether the conditions of Mr. Lee’s incarceration were a more probable cause of his tuberculosis than if the conditions had been different. Instead, the SCA required Mr. Lee to prove that reasonable systemic measures by prison authorities would have totally eliminated the risk of TB—a standard no inmate could ever meet.

The Court upheld Mr. Lee’s claim, noting that important democratic and constitutional issues were at stake:

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

South African Constitution Chapter 2, Bill of Rights

Section 10. Everyone has inherent dignity and the right to have their dignity respected and protected.

Section 11. Everyone has the right to life.

Section 12(1). Everyone has the right to freedom and security of the person, which includes the right:

        • (a) not to be deprived of freedom arbitrarily or without just cause;
        • (b) not to be detained without trial;
        • (c) to be free from all forms of violence from either public or private sources;
        • (d) not to be tortured in any way; and
        • (e) not to be treated or punished in a cruel, inhuman or degrading way.

Section 35(2)(e). Everyone who is detained, including every sentenced prisoner, has the right… to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment….

Analysis and Commentary 

This case is an example of an individual bringing a successful claim for constitutional damages against his government for human rights violations in prison. It is also an examples of lawyers and civil society organizations taking an active role in developing jurisprudence on TB-related rights in South Africa.

The decision takes a humane and pragmatic approach to factual causation in cases of negligent omission by prison officials: instead of mechanistically requiring the applicant to prove that proper action would have eliminated all risk of TB, it simply requires him to show that his actual conditions were likely the cause of his TB infection. It takes a similar approach to legal causation as it relates to the positive duty of the state: proper action simply means taking “reasonable measures to reduce the risk of contagion”—here, complying with the statutory obligation to screen, isolate, examine, report, etc.

The decision illustrates a common theme in health and human rights: that flexibility is often essential to ensuring justice for vulnerable individuals, whether it’s in the provision of tailored treatment for MDR-TB patients or in the provision of legal remedies for prisoners with TB. It is therefore very innovative and sets a precedent for developing favorable case law for prisoners with TB.