But the South African government is now consciously and deliberately allowing inmates with HIV/AIDS at Westville Correctional Services to suffer fear, anxiety, illness and potential death by refusing to obey an interim Court order of the Durban High Court to provide antiretroviral therapy to prisoners who need it expeditiously. The AIDS Law Project represents more than 50 prisoners of whom 46 have CD4 counts far below 200. Many have been ill with TB and other infections.

Today, the Government of South Africa, in particular, the Ministers of Correctional Services and Health decided to appeal an order that is unappealable because it is by its very nature an interim execution order. The government is also causing untold anxiety and suffering to the families of people with HIV/AIDS incarcerated in its prisons.

On 25 July 2006, Judge Pillay of the Durban High Court ordered that, while the government was allowed to appeal the earlier judgment in which he found in favour of the prisoners and the TAC, that the government must in the interim execute the order made in that judgment. That order required the government to devise and execute a plan to provide ARVs to prisoners at Westville expeditiously and to report to the Court on the progress of its implementation. The Judge gave the interim order because of the urgency of the matter.

The lives of prisoners with HIV are now unnecessarily being put at risk. They should not have to wait until the outcome of a lengthy appeal process before they can exercise their rights to adequate medical treatment.

In the interim order (execution judgment), Judge Pillay gave the following reasons making the order :

”I take the view that the prejudice to the Respondents [government], if any, pales into insignificance when compared to the potential for prejudice to the Applicants [inmates] and other similarly situated prisoners. For the Applicants it is a matter of life and death. For the Respondents it involves no more than the conduct of an exercise and thereafter setting out in affidavit form how it intends to carry out its obligation in terms of its Operational Plan and Guidelines, which the Respondents have consistently maintained they are already complying. With the resources at their disposal, it would be a matter of relative ease for them to comply with the order.”

On 20 December 2005, the Regional Commissioner of Correctional Services in KwaZulu-Natal wrote to the Department of Health stating:

”The issue of HIV and AIDS at Westville Correctional is a reality with ± 110 HIV and AIDS related deaths since the beginning of 2005 ± 50 offenders whose CD 4 cell count of less than 200 etc... Looking at the seriousness of the whole exercise, which is a matter of life and/or death, and the urgency that it deserves this office deems it necessary to urge your office to fast track the ART issue at Westville Correctional Services on receipt of this communication.”

In three Court appearances, government’s legal team has failed to respond to these admissions by the DCS.

The inexplicable appeal by government and its legal team is an egregious abuse of the legal system. Government was granted the right to an appeal on the merits but the rights to life and health of the inmates in their care required immediate action. Instead of reporting to the Court on 14 August 2006 as it was obliged to, government decided to appeal the interim execution order.

Government deliberately smears the integrity of Justice Thumba Pillay by arguing that he was biased because his daughter and her firm of attorneys were representing the inmates and the Treatment Action Campaign.

The facts are: our attorneys are the AIDS Law Project. Attorney Sue Pillay acted as a correspondent to the Durban High Court because the ALP offices are in Johannesburg. Her offices attend to the filing and serving of our court papers in Durban. There was nothing improper in this.

The tactic of appealing against an interim execution order on the basis that the judge should have recused himself was used by the government in the Prevention of Mother to Child Transmission case, which they lost. They failed in that attempt. The real issue at stake is the failure of government to lead on HIV/AIDS, to comply with a duty of care to people in need of health services including those who need antiretroviral therapy. Instead, the government uses this “blood relationship” to disguise its callous AIDS denialism, bureaucratic obstructionism and disregard for the right to life of people living with HIV/AIDS. If government had a real case, it would not undermine the judiciary.

- We call on the government to respect the judicial process and the integrity of judges.

 Most importantly, we call on the South African government to show leadership and to expeditiously treat people living with HIV/AIDS who need antiretrovirals including the inmates of Westville Correctional Centre and other prisons.