SERVICES PORTFOLIO COMMITTEE
28 May 2002
HIV/AIDS IN PRISONS: RESPONSE BY DEPARTMENT
NJ Mashimbye (ANC)
Documents handed out:
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
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
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
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
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
The Committee supported the Inspecting Judge’s Annual
Report, but not the confidential draft report on HIVAIDS in
The meeting was adjourned.
DEPARTMENT OF CORRECTIONAL SERVICES: RESPONSE REGARDING
HIV ISSUES: STATISTICS AND PROVISION OF ANTI-RETROVIRAL DRUGS
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
VULNERABILITY OF PRISONERS TO HIV INFECTION
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
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.
THE PREVALENCE OF HIV' INFECTION 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
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
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
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
SEGREGATION OF HIV POSITIVE OFFENDERS
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.
PROVISION OF ANTI-RETROVIRAL DRUGS TO HIM POSITIVE OFFENDERS
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
awareness and health education tapping on all resources
with the community, NGOs, business sector, and other
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
· Screening for
· 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
Dear Ms Schreiner
RE: PRESS RELEASE ON TUE HIV/AIDS STATUS OF PRISONERS.
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
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
INSPECTING JUDGE OF PRISONS
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.
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.
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.