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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”


28 May 2002

Mr NJ Mashimbye (ANC)

Documents handed out:
Response by Department to figures tabled by Judge Fagan
Draft Response by Department on HIV Issues: Statistics and Provision of Anti-retroviral Drugs to Prisoners (Appendix 1)
Letter from Judge Fagan to Ms J Schreiner, Chief Deputy Commissioner: Functional Services (Appendix 2)
Letter from Judge Fagan to Chairperson of the Portfolio Committee on Correctional Services (Appendix 3)
Article: Die Burger, 2002-05-22 "Sowat 4000 met MIV per maand uit tronke vrygelaat"

Judge Fagan, the Inspecting Judge, had revealed to the Press that an estimated 60% of prisoners released are infected with the HIV. Members were disappointed that Judge Fagan released the report containing the findings, which were the result of research conducted by the Health Economics and Research Division (HERD) of the University of Natal. The Committee supported the Inspecting Judge’s Annual Report, but not the confidential draft report on HIVAIDS in prisons. It was suggested that Judge Fagan be called to explain his actions to the Committee.

Mr N J Mashimbye (ANC) explained that, in view of Judge Fagan’s comments to the press, it was important for the Portfolio Committee have an opportunity to talk on the subject.

He then handed the floor over to Commissioner Mti, who was of the view that Judge Fagan was not competent to have made such a statement as there is no compulsory testing.

Ms Mary Mokgoro: Commission of Functional Services, Department of Correctional Services, responded to information tabled by Judge Fagan to the Committee on 21 May on HIV/AIDS in prisons. She said that statistics of HIV infection given by the Judge were unnecessarily sensationalised by the media and has serious repercussions for the Department, especially as it is not scientifically based. No HIV prevalence survey has been conducted in South African Prisons and until such a survey is conducted one cannot confidently conclude that any statistical figure on HIV infection is real. With respect to the mini study conducted in Durban Westville Prison with only 274 prisoners (2% of the total 11711 inmates in Durban Westville), she said that the sample is not representative of South African prisons. Care should be taken in extrapolating from this example to all South African prisons. Compulsory HIV testing was unconstitutional and would require legislative backing.




The Chairperson noted that in the letter addressed to him the Inspecting Judge admitted that the 60% estimate was a thumbsuck. The Judge was over zealous about things he should not be.

Mr van der Venter (DP) said that his intention was not to cross swords with the Chairperson, but although the announcement by the Inspecting Judge was shocking, the mini study of 2% is not such a small sample. Large companies use smaller percentages to conduct surveys. He pointed out that the Chairperson had given Durban Westville Prison permission to conduct the survey. Lastly, the Inspecting Judge showed courage in coming to the Committee with the information, which should not be ignored.

Mr Mashimbye responded that he is not crossing swords but Mr van der Venter misunderstood him and his recommendations, which were based on equity.

Mr Gert Oosthuizen (ANC) said that he had listened to the Inspecting Judge paint a picture of what is going on in the prisons. If HIV testing were done today the outcome of the statistics would fluctuate as there are people coming in and out of prisons on a daily basis. He pointed out that it is not the first time that the Inspecting Judge had done something like this and that it is not right that the Inspecting Judge treat the Committee in this manner.

A Member asked what agenda’s there are behind such distorted information as it creates confusion in the public.

Another Member emphasised that although Judge Fagan spoke of something he was not competent to speak on, the Committee should not detract from the important developments he has made. The Committee should reconsider the brief given to the Inspecting Judge.

Mr D Bloem (ANC) asked for the Judge’s resignation as he cannot be trusted. Furthermore, if the Committee looks at the mandate of the Inspecting Judge, it is to oversee the release of prisoners and overcrowding and not HIV/AIDS.

Another Member suggested that the Inspecting Judge be called back to the Committee and explain his ‘thumbsucking’ that he admits in his letter to the Chairperson.

The Chairperson noted that Judge Fagan has done a great deal of good work and he would therefore not even entertain the Inspecting Judge’s resignation.

Mr van der Venter (DP) said that it is important to establish the academic and scientific status of the survey done in Durban Westville Prison. Further that the Inspecting Judge should in future rely on his own work and not on a report given to him. Lastly, the Committee should try to figure out why such a report was given to the Inspecting Judge and not to the Committee itself.

Another Member stressed that sensitive matters such as HIV/AIDS statistics should be discussed behind closed doors as the Committee is already damaged.

The Chairperson raised a different issue, namely, that to attract professional staff there should be better packages advertised when the post is available.

Commissioner Mti again reiterated that it was a sad day for the Department of Correctional Services in relation to the Judiciary.

The Committee supported the Inspecting Judge’s Annual Report, but not the confidential draft report on HIVAIDS in prisons.

The meeting was adjourned.

Appendix 1:


The problem of HIV/AIDS in prison is a reality which the Department is committed to addressing in consultation with other role players within and outside the government spheres. The HIV/AlDS pandemic is a problem for all corrections worldwide. It is believed HIV infection is high in prison settings than in the general public and that effective strategies need to be implemented if the Correctional Services is to manage this
pandemic effectively.


The prisoners come from a sector of our population which is already disadvantaged socio-economically due to unemployment and poverty. Imprisonment further increases their chances of acquiring HIV infections as a result of overcrowding and poor living conditions. stressful situation, violation of their rights by fellow-prisoners resulting in sexual abuse and coerced sex.

Within the South African prison settings. the spread of HIV infection through needle sharing is not common as it is the case in developed countries. Thus in South Africa like in other :African countries the spread is mostly through sexual activities. The abuse of prisoners by fellow-inmates is seldom reported as victims are afraid of serious consequence. This is a challenge to Correctional Services to ensure that prisoner's rights are protected and that they are also empowered to protect one another while in prisons.


No HIV prevalence survey has been conducted in South African prisons and we therefore cannot confidently conclude that HIV' infection is at 60 percent in prisons. We however, are aware that the infection rate may be higher than in the general public and that the reported cases are a distortion of the real situation.

According to the National HIM Sero-Prevalence Survey of Women attending Ante-Natal Clinics in South Africa conducted annually. the HIM infection was at 24.5 % in 2000 (Department of Health. 2000). The infection rate in prisons is estimated to be higher than 24.5%?. The Department will have to conduct a prevalence survey in the same way as the Department of Health estimated the prevalence of the pandemic in South Africa using pregnant women. Within prisons the survey' will focus on prisoners and already a meeting with the Department of Health was held in 2001 to deliberate on the idea of conducting HIV prevalence survey in prisons. The Department will rely on the experiences and expertise of the Department of Health, medical universities and available laboratory facilities. The Department is planning to conduct such a survey within 2003 and 2005 and to conduct it on a continuous basis to keep track with the trend of HIM infection.

A study tabled during 2000 International AIDS Conference in Durban brought forth some valuable information indicating that the HIV sero-prevalence survey conducted in Zambian prisons reported that 270/o of prisoners were infected. According to the UNAIDS report on Global HIM, 1999, Zambia was the fifth African country with high HIM infection while South Africa was rated the sixth country. Therefore the HIV prevalence in South African prisons may not differ much from that of Zambia. This assumption can only be supported by' a scientific HIM sero-prevalence survey.


Compulsory HIV testing of prisoners is not recommended internationally by WHO (World Health Organisation) and UN(United Nations). It is emphasised that HIV testing should be voluntary. In South Africa. we believe compulsory testing of prisoners is a violation of human rights and to effect such a practice will require legislative framework. The decision to conduct compulsory HIM testing of prisoners is not the Department of Correctional Services responsibility, but it is the National Government's decision. The Portfolio Committee on Correctional Services indicated in 2001 during the presentation of the Draft HIM/AIDS policy. that compulsory HIM testing of prisoners will require legislation.

Until the Department of Health makes it a notifiable infection, there is no basis for compulsory testing.

CompuIsory HIV testing maybe considered in the event of rape and other forms of sexual and physical assault .In such situations the action performed by' the perpetrator may' compel us to conduct compulsory HIV testing. It may therefore be justifiable to compel an offender to undergo HIV testing and thus limiting his or her rights. Compulsory HIV testing is a human rights issue and the decision to effect such a practice will not fall within the competence of the Department of Correctional Services.
Implementation of "Universal Precaution " protocol is encouraged to protect both j) personnel and prisoners


The decision to segregate HIV infected prisoners is an ethical issue and within the South African prisons were overcrowding is a problem, the available accommodation will not be utilised optimally . Segregation of HIV positive prisoners will also promote stigma to such prisoners and their families. We believe we can do better with preventive and promoting health care while promoting observance of human rights The rehabilitation efforts the Department is committed to will require programmes to be put in place to train both personnel and prisoners and to encourage humane treatment of inmates.





The Department of Correctional Services derives its mandates from the government and therefore it will provide anti-retroviral treatment to prisoners guided by the policy of the government. Pregnant female prisoners who are HIV positive will access Neverapine the same way as the general public does access these drugs. Anti-retroviral drugs within prisons are also made accessible to the health workers in the event of needle pricks. Offenders with HIV/AIDS are provided with treatment for complications within the treatment guidelines for opportunistic diseases. Prisons participate in the project by the Department of Health where Diflucan drugs donated by' Pfizer is used for the treatment of .AIDS related conditions


The following strategies are employed to address HIV/AIDS in prisons:
· Health awareness and health education tapping on all resources available
· Partnership with the community, NGOs, business sector, and other government department.
· Voluntary testing and counselling
· Management of opportunistic diseases and sexually transmitted infections
· Discharge of terminally ill prisoners
· Training of personnel and prisoners
· Management of information and reporting system
· Condom provision
· Research
· Screening for early treatment
· Policv review

· The Deputy Director HIM/AIDS has been appointed and she has commenced with the planning for the operationalisation of the Department's HIM/AIDS policy including the appointment of Provincial HIM/AIDS Co-ordinators. She will also facilitate the prevalence survey including provision of budget.


Given the seriousness of the HIV/AIDS pandemic in the general public and correctional environment in South Africa intervention strategies should be based on research-based evidence and observation of human rights principles.

Known HIV/Aids cases as at March 1996-2000




March 1999



March 1997



March 1998



March 1999



March 2000



March 2001



March 2002



Appendix 2:
Dear Ms Schreiner


Thank you so much for sending me a copy of the press release convey my appreciation to the Commissioner for requesting you to and please do so.

I have already spoken to Mr Leon Holzhausen and Mr Luzuko Jacobs by telephone on Friday morning when the press release reached me, telling them how the unfortunate 60% estimate was seized upon by the press and telling them that your press release in its moderate terms certainly carries my approval.

May I put you in the picture. During a 3 hour long briefing session1 this office informed the Portfolio Committee about what it was doing along the lines set out in its Annual Report.

Deaths in prison 'were mentioned (pp.19 and 20 of the Annual Report). That led to my complimenting DCS for facilitating research into HIV/AIDS at Westville Medium B Prison (which had been presented at the DOS Research Workshop on 14 May ). I recollect saying from the Westville prison report it appears that almost 45% of the recently admitted (0-2 years in prison) under 30 year old prisoners, were found to be HIV+ whilst prisoners that had been
in for longer had lower HIV+ percentages, which shows that the disease is -being introduced into prison from outside. I recall stressing that overcrowding leads to the further spreading of the disease in prison, as evidenced by the steep rise in deaths, must have said That if you add that to the 45% you could have a 60% infection rate (in Kwazulu-Natal). I do remember stressing That it was just a thumbsuck as there was no compulsory testing (with which this office agrees).

At the conclusion of The meeting I was asked by representatives of the Media about the 60% estimate reiterated that it was an estimate and on reflection was too high. That is why ETV television that same evening quoted 40% as also Die Burger newspaper the following morning. A copy is attached.

Mr JN Mashimbye, Chaimerson of the Portfolio Committee, wrote to me since the meeting asking for, inter alia, the evidence on which my estimate was based.

In my reply I reiterated that it was a guesstimate. A copy of the relevant portion of the letter is attached.

Let us hope that some good can come out of all this, viz public awareness of the overcrowding problem and support for more research.

Kind regards.


Appendix 3:
Office of the Inspecting Judge

Dear Mr. Mashimbye
In reply to your letter dated 23 May 2002, may I also on behalf of the Judicial inspectorate of Prisons thank you and the Portfolio Committee for affording us such a wonderful opportunity to inform the Committee about what the Inspectorate is doing.

The discussions 'with the members of the Committee provided us with very valuable information and advice on current priorities and policies and for this we thank you

With regard to the matters raised in your letter and during the meeting please find the following information which I hope will address the concerns of your Committee.

Equity Plan

Health laws.

As mentioned during our briefing the figure of 6000 prisoners infected with the HIV virus is a guestimate which was not intended to be taken as a scientific Fact This figure
was mentioned to the members of the Portfolio Committee to amplify what I regard as a major challenge not only to the Department of Correctional Services but to the justice system in it totality Emphasis is placed On the need to deal with HIV prisoners awaiting trial for long periods of time and under severely overcrowded conditions. As mentioned it is my view that the Department of Correctional Services should be complimented with the initiative taken by them to facilitate independent research on this matter and strongly support their intention to extent such research to other parts of our country in order to gain a scientific overview of the challenge facing us all

I have noted and agree with the views of The Committee members that my guestimate of
6000 is based on assumptions which cannot be proved in all cases such as the cause of
death when a post mortem report is not available. There is however Factual information
which indicates that we have reason to be concerned. I have listed some hereunder;
· Deaths in prisons which were recorded as having been caused by natural causes have risen from 136 in 1995 to 1169 last year. From the doctor's reports it would appear these ('natural deaths" are mostly caused by HIV/Aids. if we allow this alarming escalation to continue many thousands of people will die in our prisons. The effect that these deaths already have on the prison staff, prisoners and our criminal justice system should be considered a priority.

· Research indicates that HIV is in most cases not contracted during imprisonment but that this is a disease which is being "imported" into our prisons by the high number of prisoners (mostly awaiting trial) that pass through our prisons every year.

· Because of legal limitations the Department of Correctional Services cannot release awaiting trial prisoners who have been diagnosed as being in the final phase of any terminal disease for them to die a consolatory and dignified death at home. Section 79 of the Correctional Services Act which provides for such release, omits reference to awaiting - trial prisoners.

· The research done by the Health Economics & HIV/AIDS Research Division at the University of Natal and the Medical Research Council (copy attached for your information) at Durban Westville prison does provide valuable.