What should the state do now that it has lost the Dudley Lee case?

He won first. Then the Minister of Correctional Services appealed to the Supreme Court of Appeal (SCA) and Lee lost. He lost big time.

Not only did he lose, but the way he lost was so spectacularly devastating that it seemed no one would ever win a case like his ever again. It also seemed there would be no other way for Lee or anyone else in his position to vindicate their rights. Indeed, the Constitutional Court later wrote:

“I stress that on the approach adopted by the Supreme Court of Appeal it is unlikely that any inmate will ever be able to overcome the hurdle of causation and further, no effective alternative remedy will be available to a person in the position of [Mr Lee]”.

In reality, Lee’s trouble with the legal system began in 1999. That year, he was arrested then incarcerated in Pollsmoor Prison outside Cape Town.

In 2004, after at least 70 appearances in court, he was finally acquitted and released. During that time, however, he contracted TB. Pollsmoor was and is an abysmal place. It’s filthy, poorly ventilated, dimly lit and severely overcrowded at over 200% occupancy. Moreover, inmates struggle to get even basic medical attention. Laws requiring proper medical screening and treatment are largely ignored, partly because of critical understaffing. Indeed, according to the courts, Dudley Lee “begged, bullied and bribed” just to get his TB medication.

Upon his release, Lee sued the Department of Correctional Services (DCS) for negligently causing him to become infected with TB. The SCA said it was clear that the prison authorities were supposed to take measures to prevent the spread of TB and had failed to do so. It ruled, however, against Mr Lee because he could not prove that the DCS’s failure “caused” his infection. Mr Lee then appealed to the Constitutional Court.

The Constitutional Court disagreed with the SCA and ruled in favor of Dudley Lee. In doing so, the Court confirmed that the State has an obligation to respect the rights of prisoners and that failing in that duty has consequences. It also confirmed that prisoners “are amongst the most vulnerable in our society to the failure of the state to meet its constitutional and statutory obligations”. By allowing Mr Lee to access a remedy for the violations of his rights, the Court sent an important message about accountability. The judgment may therefore have far-reaching effects on the health of prisoners and the public.

When Dudley Lee applied for the Constitutional Court to hear his case, the Treatment Action Campaign, Wits Justice Project and Centre for Applied Legal Studies, represented by SECTION27, also applied to be “amici curiae” or “friends of the court”. This means that they asked the Court to allow them to make arguments on the matter. The Court accepted this application, and thanked and applauded the amici for their assistance in its judgment.

The amici made two arguments. First, they argued that Dudley Lee should win under the law as it currently is. The argument was that Lee had proven his case, but the SCA simply applied the wrong law. Had the SCA applied the right law, Dudley Lee would have won.

Second, the amici argued that, if the Constitutional Court thought that the SCA had got the law right and Dudley Lee must lose under it, then the law itself is wrong and needs to be changed. They argued that the law should be developed in order to serve the interests of justice in this case. This is something that the Constitution requires under section 39(2).

The Court split over these two arguments. 5 justices supported the first and four supported the second. Either way, however, Dudley Lee comes out on top.

Often, when the justices disagree over an issue, they will write separate “opinions”. Whichever side the majority agrees with becomes the judgment of the Court. The minority opinion is called a “dissent”. Technically, a dissent doesn’t have any effect in the immediate term. However, dissents have been known to nibble at the edges of legal thinking till they take hold and grip the mind of one justice then a few then eventually take over, rise to glory and become a majority opinion, thus having the force of law. Legal history is full of these great comeback stories. Thus, a well reasoned and argued dissent, which the one in Dudley Lee’s case certainly is, though I don’t comment on whether it’s right or wrong, is a powerful thing.

The minority of justices thought that the courts needed to develop the law in order to serve the interests of justice given the facts of this case. It said that TB is a disease that defies the conventional legal approach by its very nature. Dudley Lee’s claim was a delictual claim. He was suing because the DCS had done something wrong, or failed to do something it was supposed to do, and thereby harmed him. Thus, he had to prove that the wrongfulness “caused” the harm. In this case, the wrongfulness was the failure to take measures to prevent TB and the harm was TB infection.

The minority said that one simply can’t show how one contracted TB because of the particular way in which TB is spread. It only takes a single bacterium to infect someone with TB and there were countless of these in the Pollsmoor Prison. The DCS cannot be expected to entirely eliminate all the bacteria and it’s impossible for Lee to prove where the individual bacterium that infected him came from. However, the minority said, this doesn’t mean that Lee should lose. It rather means that the law is unsuited to this case and needs to be developed to serve justice given the particular, peculiar nature of TB. The minority would have sent the case back to the court in which it started and told that court to sort out how the law should be developed to serve justice in this case.

The majority of the Court thought that current law was capable of serving justice in this case. It thought that it was enough for Mr Lee to prove that the DCS negligently failed to take measures to reduce the risk of TB in the prison and thereby increased the risk that Mr Lee would become infected. In its view, this is enough for Mr Lee to prove a “causal link” between the wrongful conduct of the DCS and his TB infection.

Thus, the majority said that Mr Lee should win if he could show “that [Mr Lee] found himself in the kind of situation where the risk of contagion would have been reduced by proper systemic measures”. The majority ruled in favor of Dudley Lee right then and there. It also sent the case back down to the first court, but only to determine how much money the state owes Mr Lee.

The majority opinion is a nuanced and complicated one. My guess is that it will lead to a great deal of debate in the future. One thing, however, is certain: detainees that have become infected with TB due to the negligence of the DCS have a claim in delict against the State.

This has three interconnected consequences. First, it means that individuals have a way of vindicating and protecting their rights. Second, it means that the State is accountable and cannot violate rights and disregard its duties with impunity: it must do what it’s supposed to or cough up. Third, because the State is accountable, it has an incentive to do better, which hopefully means that it will, which would have enormous benefits for the health of prisoners as well as public health more broadly.

People who study TB are in wide agreement that the battle against TB requires focus on certain vulnerable populations—people that are susceptible to the disease due to living conditions that facilitate its spread. It’s not hard to imagine the characteristics of such places. They include places like prisons and mines and any place in which people live or work closely and have a lack of ventilation and access to hygiene and medical care.

The sad news is that prisons fit this description perfectly. It cannot be questioned, and indeed was forcefully confirmed in all three courts, that the State has a duty to protect prisoners from infection and is failing miserably at doing so. Given the language of the judgment, it also appears that it will be relatively easier for people to win these cases than previously. One concern is therefore that this judgment will open the floodgates of litigation, thus drowning the DCS in claims that will cost it dearly.

As someone who worked on this case, this issue has nagged me incessantly. In the end, I always returned to one thought: the State must do its job. Nobody can successfully sue the State if it hasn’t done anything wrong.

The Court came to essentially the same conclusion. The Court reasoned that a flexible approach to causation will not expose the State to too much liability because South African law provides adequate checks against this at the stage of determining what sort of acts and omissions are “wrongful”, which is also a prerequisite for liability. Thus, the Court essentially reasoned that the State is not being asked to do overly much.

Thus, what should the State do about Dudley Lee? The answers are simple in theory and certainly achievable in practice. Increase ventilation in cells. Don’t hold people in cells for 23 hours a day, let them out for longer so that they breathe fresh air. Afford people access to healthcare as required by the Constitution and other laws. Actively seek out TB and adequately treat those who suffer from it. Reduce overcrowding and the length of time people are held before trial. These are a few of the most important steps that the DCS must take. Not all of them are easy, but each of them is imperative.

The reward for taking these steps is not only that people won’t be able to sue the pants off the DCS, but also that we will have a healthier, more just and humane country. Finally, a prison system that treats its detainees in this way should be a source of pride for the country. It would show that South Africa is a nation that would score well in that old test posited by thinkers like Mandela and Gandhi, that a nation should be judged by the state of its prisons.

John Stephens is a legal researcher at SECTION27.