Step towards protecting inmates
June 26, 2005 Edition 1
Juggie Naran
There has been mixed reaction to an out-of-court settlement between the Department of Correctional Services and a Chatsworth man who was sodomised and infected with HIV/Aids at Westville Prison. Juggie Naran reports
In what was believed to be a test case, a former detainee sued the government for more than R4.5 million in damages for allegedly being assaulted and sodomised in prison in November 1998.
The case was set down in the Pietermaritzburg High Court on Monday, but was struck off the roll at the request of both parties on the grounds that the matter had been settled.
The man had been arrested on November 24, 1998, on a theft charge. He was granted R500 bail but was unable to pay it and was taken to Westville Prison.
The man reportedly said he had been held in a cell with 20 other prisoners from November 25 to 29 and that he had been assaulted and sodomised by other inmates. He became aware in June 2000 that he had contracted HIV.
He said his illness was due to the negligence of the Department of Correctional Services which had failed to ensure he was not assaulted or sodomised while under their care in prison. He also said the department failed to ensure that he received proper medical treatment after the assaults.
Manelisi Wolela, spokesman for Correctional Services, confirmed that an out-of-court settlement had been reached. He would not disclose details.
This is believed to be the first time a former prison inmate has taken such action against the state. However, Jaqui Sohn of Cape Town attorneys Sohn, Gordon, Martins and Branford, said they were also acting on behalf of a prisoner who had been sodomised and contracted Aids while at Goodwood Maximum Security Prison.
Sohn said each case had to be treated on merits. She said it was difficult to give an opinion on the Durban case because more details were not available.
However, she added, it was the state that imprisoned a person and it was the duty of the authorities to take care of the safety of the prisoner while he was serving his sentence.
The Chatsworth man's claim of not receiving proper medical treatment was this week echoed by Dr David Reddy of Turning Point Ministries, who was invited to speak to Westville medium B prisoners suffering from HIV/Aids.
Plea
Following his visit to the prison, he made a desperate plea for assistance to the state and public because he claimed the HIV/Aids- infected prisoners were receiving very little help from the
department.
"I am astounded that a government advocating justice, righteousness and non-corruption should be the very one that is allowing a violation of human rights, by watching these incarcerated Aids sufferers die before their very eyes daily, when their lives could be prolonged," said the international evangelist.
"It is very touching to hear these prisoners says that they do not know which one of them will be alive the following day," said Reddy.
In June 2002, Judge Thabani Jali - commissioned by the government to conduct a wide-ranging inquiry into prison conditions - detailed in a damning report some of the horror findings of his inquiry.
This included evidence of a "sodomy ring" involving warders at the infamous Grootvlei Prison. Other damaging evidence also emerged about the same time on SABC 3's Special Assignment programme. Millions of viewers were shown, among a host of other irregularities, prison warders, as accomplices, accompanying young prisoners to have sex with other inmates.
Jali said the video evidence had not been disproved by any of the warders. He further detailed the sale of young prisoners for sex with older prisoners and a sodomy ring involving juvenile prisoners and warders.
Some legal experts, however, believe an out-of-court settlement cannot be interpreted as a precedent while others say it can, and could open the floodgates of litigation against the state.
This is based, according to them, on the fact that it is the state's responsibility to look after the safety of prisoners once they are incarcerated, and especially if it is found the officials have been negligent.
They further point out that if the that prison officials can foresee or prevent behaviour that could cause harm to the prisoner, and fail to take adequate precautions, this could also be interpreted as
negligence.
Precedent
Umesh Raga, of the Judicial Inspectorate of Prisons, legal services department, said he was not aware of the Westville case.
Because it was an out of court settlement, it could not necessarily be seen as a precedent for other similar issues, he said.
"It is a pity that the full facts were not pronounced on by the court.
"The constitution sets out clearly that the safety and security of prisoners is left in the hands of the Department of Correctional Services," said Raga.
"This case, it is difficult to draw the inference that the Department of Correctional Services has failed to provide the constitutionally guaranteed safe custody of this prisoner," he said.
It highlights the problems of sexual assault in prisons, problem furthered by chronic overcrowding and unmanageable numbers, he said.
In this regard the Judicial Inspectorate of Prisons felt that President Thabo Mbeki should have remitted the sentences of certain categories of prisoners recently, said Raga.
Prominent Chatsworth attorney Siven Samuels said he also believed overcrowding compromised the safety of prisoners. Warders found it difficult to monitor and control the situation. It was the state that took the prisoner from society, so it was the duty of the authorities to provide a safe and secure environment for that prisoner, said Samuels.
If some harm came to the prisoner while under the care of the state, the prisoner had the right to sue, he said.
"It is up to the prison officials to see to the safety and security of the prisoner. If the prison official can foresee and prevent any harm coming to the prisoner and he fails to take the necessary action to protect the inmate, then the prisoner also has cause to take legal action against the state.
"It is natural for men to have sexual urges and unless these men are properly monitored, instances of sexual abuse are going to take place. The state punishes one by imprisonment and if a prisoner is raped and gets HIV, it effectively means that the death sentence has been imposed on the prisoner," said Samuels.
University of KwaZulu-Natal Faculty of Law Deputy Dean, Prof John C Mubangizi said the effect of an out-of-court settlement was that it absolved the parties from any further claims against each other.
He said that if the Department of Correctional Services honoured the settlement, then the claimant would be precluded from instituting any further proceedings on the same matter against the department.
Settlement
"An out-of-court settlement should not be interpreted as an admission of guilt. In other words, the offer by the department to settle out of court does not necessarily mean that it accepts legal responsibility or culpability," said Mubangizi.
Such culpability could only be established through the normal court process that would ordinarily end in a judgment and an order of the court, said Mubangizi.
The settlement should not, he said, and could not, be seen or used as a precedent, as it had not had the benefit of a court's reasoning and judgment. The legal doctrine of judicial precedence required that a court referred to the reasoning and applied the legal principles established in an earlier case in order to use it as a precedent, he said.
"As such, the out-of-court settlement reached between the Department of Correctional Services and the Durban man cannot serve as a precedent in future cases of a similar nature," he said.
