EN and Others v. Government of the RSA and Others

This is an application for leave to appeal an interim implementation order. In the main application fifteen prisoners were successful in compelling the State to provide them, and other similarly situated prisoners living with HIV/AIDS, with antiretroviral (ARV) treatment while they were incarcerated at the Westville Correctional Centre (WCC) in KwaZulu-Natal province.

The Respondents filed a leave to appeal application of the main application order to which the Applicants responded with an application for an interim implementation order. The leave to appeal application and the interim implementation application were heard and both granted. According to the latter application, the order in the main application was to be implemented pending the outcome of the appeal. This interim implementation order was subject to the State being given a later date to file an affidavit in compliance with the order in the main application. In this affidavit, it was to set out the manner in which the Respondent was to provide immediate access to ARV treatment to all prisoners living with HIV/AIDS at WCC. Eligibility would be determined with regard to the criteria set out in the National Department of Health’s Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment in South Africa.

However, after the passing of this newly specified date for the filing of the affidavit (in terms of the court order in the main application), the State instead lodged an affidavit for leave to appeal against the interim implementation order and averred that the effect of the leave application on the interim implementation order was that it was suspended pending the appeal.

The Applicants in turn launched a further application for a declarator that the leave to appeal application did not have the effect of suspending the interim implementation order and the Applicants also asked for an order that the implementation order in the main application be implemented forthwith pending appeal.

The court considered whether the latter leave to appeal application had the effect of suspending the order in the interim implementation application. The court held that the application for leave to appeal against the interim implementation order was refused; and the order in the main application, as well as the interim implementation order, was to be implemented forthwith, save that the date for lodging of the requisite affidavit by the Respondents was to be extended.

The court futher held that the State was not able to succeed in its leave to appeal the interim implementation order, as it could not show that irreparable harm would be suffered which would be greater than what would be suffered by the Applicants should the order be suspended. Rather, any harm to the Respondents could be described as “organisational inconvenience.”

The court stated that the Respondents had clearly failed to comply with the court’s order to lodge the affidavit containing a plan to treat prisoners at WCC with the Registrar of the Court by the specified date. Thus the lodging of this notice of appeal did not have the effect of staying the interim implementation order since it was filed after the date by which the order was to have been complied with.

The court noted that the respondents were in contempt of the court order in the main application; however, section 3 of the State Liability Act effectively deprived the Applicants of a remedy. Unless section 3 was declared unconstitutional, there was no legal mechanism to enforce court decrees against State organs. Furthermore, if the Respondents' refusal to comply was not on instructions of the first Respondent, the Central Government, the remaining Respondents had to be disciplined for their delinquency, either administratively or in an employment context. The court further noted, however, that if the first Respondent was instructing organs or officials to disobey orders in question, a potential constitutional crisis would ensue involving a serious threat to the doctrine of the separation of powers.

“I take the view that the prejudice to the Respondents, if any, pales into insignificance when compared to the potential for prejudice to the Applicants 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.” Page 5.

“The Regional Commissioner also makes reference to fifty HIV/AIDS sufferers who will require treatment urgently.  Surely, he at least must be in a position to identify them. It therefore makes no sense for the Respondents to say that they are unidentifiable. One cannot, on the one hand hail the values of our Constitution which holds the right to life as sacrosanct and on the other, allow people to die in a situation when something can and should be done, certainly more diligently, to counter a pandemic which has been described as an ‘incomprehensible calamity’ and the ‘most important challenge facing South Africa since the birth of our new democracy.’” Page 6.