Nathan Geffen, Centre for Social Science Research, UCT
Simon Johnstone-Robertson and colleagues at Cape Town and Stellenbosch universities have published the results of a model that calculated a TB transmission probability of 90% per year for awaiting trial prisoners in a large South African prison. They found that by implementing the national cell occupancy recommendation, the transmission probability could be reduced by 30%. And by implementing international recommendations, transmission probability could come down by 50%. They also found that implementing any one of improved passive case finding, modest ventilation increases or decreased lock-up times according to national or international standards would have a minimal effect. But by implementing all of these measures together including reduced occupancy, transmission could be reduced by 50% if national guidelines were adhered to and by 94% if international guidelines were used. 
The authors explain that South Africa has the fourth highest global incarceration rate, with more than 165,000 prisoners in 237 prisons. There is rapid turnover of awaiting-trial prisoners with 79% being imprisoned for less than 12 months and the number of people passing through the system annually exceeding 368,000. There are at any time about 3,200 prisoners awaiting trial in Pollsmoor, the 3rd-largest facility with awaiting trial prisoners in the country. Awaiting trial prisoners are mostly kept in communal cells of 40 to 60 prisoners each.
The South African Constitution’s Bill of Rights says “Everyone who is detained, including every sentenced prisoner, has the right … to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment”. 
A 2011 court judgment showed how far the country is from attaining this right. From November 1999 to 27 September 2004 Dudley Lee was an awaiting trial prisoner in Pollsmoor prison complex in Cape Town, except for a four month period in 2000 during which he was out on bail. In June 2003, while he was in prison, he became ill and was diagnosed with pulmonary TB. He later sued the Minister of Correctional Services because the state’s conduct caused him to become ill with TB.
Conditions in Pollsmoor Prison
In his court action, Lee’s legal team claimed that:
- It was common for prisoners in the prison, including Lee, to be in close proximity to one another and to be housed in mass cells;
- A considerable proportion of prisoners were infected with active TB and that it was inevitable that some of the prisoners with TB would infect non-infected prisoners in close proximity to them;
- The Department of Correctional Services was aware of the presence of TB in the prison and the risk of non-infected prisoners becoming infected;
- The Department failed to adhere to prisoners’ requests for adequate treatment to prevent and/or treat and/or cure people;
- The Department could have eliminated or reduced the spread of TB by creating conditions in the prison which made it impossible or difficult for tuberculosis to be spread by separating prisoners sick with TB from healthy prisoners, regular and effective checkups of prisoners to see whether or not they were actively infected with tuberculosis, and by providing regular and effective treatment for the control and elimination of the disease;
- The defendant’s actions towards the plaintiff were unlawful because the Department violated the Constitution and the Correctional Services Act 8 of 1959 including sections that deal with respect and protection of physical integrity.
The court judgment describes overcrowded cells in which inmates typically spend 23 hours a day and an hour in an overcrowded recreational area. The environment is engulfed in tobacco smoke and fumes and coughing. There is a chronic shortage of nurses and staff and so the DOTS system that is supposed to be used is implemented inconsistently at best. TB data in the prison is poorly kept and inconsistent. For example, one doctor testified that treatment cases had to be recorded in a treatment register, which was held in quadruplicate. One copy was to be sent off to the Medical Officer of Health but documents, which were supposed to have been forwarded to the Medical Officer, were still in the register. Another example: A schedule of TB cases covering the period 1998 to 2009 had been prepared by the prison but other records in the prison showed the schedule was wrong. The total number of TB cases for 2001, according to the register, was 177 but the schedule recorded 69 cases with no cases provided at all for April to October.
South Africa has an extraordinarily high crime rate and there is not much public sympathy for prisoners. Dostoevsky’s comment that a “society should be judged not by how it treats its outstanding citizens but by how it treats its criminals,” is not a widely held view, in spite of Constitutional guarantees and legislation protecting prisoner rights. It is therefore notable that Mr Lee was acquitted and therefore arguments lacking empathy for criminals are irrelevant to his case. Moreover, as Johnstone-Robertson and colleagues point out, high TB transmission rates in prison contribute to a high TB burden in the general population.
The judge explained the effect of prison conditions on Mr Lee’s testimony, “Given that prisoners who were awaiting trial spent approximately 23 hours out of every 24 in their cells, there must clearly have been little to distinguish one day from another. Indeed, the plaintiff himself said that one day was much like the next. The plaintiff spent approximately four and a half years in prison awaiting trial and attended court on approximately 70 occasions during that time. In these circumstances it does not appear to me to be surprising that the plaintiff became confused at times.”
The judgment describes a justice system that is under-resourced, cruel and careless.
It is difficult for current or former state employees to testify against the state. The South African state, both during and post-apartheid has a record of ostracising health workers who stand up for patient rights. During the Tshabalala-Msimang era, some doctors were dismissed for providing antiretroviral treatment. So it is worth mentioning that the judge depended on testimony by doctors Paul Theron and Craven, who had been employed as part-time district surgeons at the prison, as well as a male nurse, Frans Muller, formerly employed at the prison. The judge described their testimony of the problems at the facility and their attempts to bring these problems to the attention of authorities as reliable. All three described their frustrated attempts to get the authorities to improve prison conditions.
On the other hand, experts who provide dubious testimony to defend indefensible state policies act without concern for the consequences of their actions. Therefore it is also worth noting the judge’s views of one such witness. Prof. Paul van Helden, who is described on the website of Stellenbosch University’s Division of Molecular Biology and Human Genetics, as the 4th highest ranked scientist in the world in the field of tuberculosis, gave astonishing testimony for the state. He argued that the plaintiff’s acquisition of TB was primarily a consequence of genetics and re-activation, not the prison environment. Dr Theron rebutted his testimony. The judge pointed out a salient problem with it:
“Prof Van Helden also appeared to fall into the trap of losing his objectivity. So, for example, he used statistical evidence which was obtained in lower socio-economic areas such as Ravensmead and Masiphumelele to justify his opinion that the plaintiff, who came from a middle class environment, had probably been infected with TB prior to coming into the prison, in circumstances where he himself had admitted that those statistics would not be applicable in middle and higher socio-economic areas. Indeed, Prof Van Helden went so far as to say that the plaintiff’s chances of having been infected with TB prior to entering prison were ‘exceptionally high’.”
The judge concluded, “There is no doubt that Prof Van Helden is an expert is his field, but he is not a medical doctor and has had no experience in the diagnosis and treatment of TB. His experience relates to research. On the whole, Prof Van Helden’s evidence was tainted with bias and misinformation. As a consequence, his evidence is, in my view, in many instances unreliable and inaccurate.”
The judge drew several conclusions, “On the totality of the evidence, I am accordingly satisfied that it is more probable than not that the plaintiff contracted TB as a result of his incarceration in the maximum security prison at Pollsmoor.”
She also found “that a reasonable person in the position of the defendant would have foreseen that the prevailing conditions in the maximum security prison at Pollsmoor would reasonably possibly spread TB amongst inmates and cause inmates, such as the plaintiff, who had not previously been ill with TB, to succumb to the disease.”
She further wrote, “… the crisp answer to the question as to whether the defendant took reasonable steps to guard against the spread of TB, or to curb its spread in the maximum security prison, is no. There is no evidence that the defendant … took any steps whatsoever to guard against the spread of TB in the maximum security prison”.
And she found that “a reasonable person in the defendant’s position would, in my view, have taken steps to guard against the spread of TB in the maximum security prison, because it is such a formidable disease which is easily spread. More particularly, a reasonable person would have ensured that sufficient numbers of nursing staff were employed to perform the various tasks involved in the control and prevention of TB in the said prison.”
The judge found the state’s actions unlawful. She found the Minister liable to the plaintiff for having become ill with TB and ordered the state to pay costs. The damages amount was scheduled for a separate hearing.
Technical aspects of the model
Johnstone-Robertson and colleagues used data presented in the court case to construct their model. The court record provided several inputs into the model including TB incidence rate (5.5/100 person prison years, derived from 177 cases in a prison population of 3,200), period of infectiousness (1 to 180 days), ventilation (one air change per hour in a cell of 195m3) and floor area per prisoner (1.42m2). Other input parameters were infectious particles produced (1 per hour, a conservative estimate) and respiratory volume (360 litres per hour). The model was also run using other ventilation values: 3 air changes per hour (minimum international recommended ventilation), 8 (intermediate ventilation); and 12 (optimal ventilation), as well as different cell dimensions and floor areas per prisoner (3.34m2, a Red Cross recommendation and 5.4m2, WHO recommendation). The floor space per prisoner parameter corresponds to cell occupancy levels of about 250% (situation in Pollsmoor), 100% (South African recommendation) and 50% (international recommendation).
The authors explain that the model’s main equation is the number of TB infections (C) occurring in a prison cell with susceptible prisoners (S). This was assumed to be a function of the number of infectious cases (I), their infectivity (q, quanta of infectious particles produced per hour), time of exposure (t, minutes), respiration rate (p, litres per hour), and germ-free ventilation (Q, litres per hour):
C = S ( 1-exp( -Iptq/Q ) )
This is known as the Wells-Riley equation.
The authors further explain that the prevalence (P) of infectious adults at any time is the annual smear-positive incidence rate (M, per cent) and the period of infectivity (D, days) as
P = M/[365/D].
The risk of contact with an infectious adult was modeled using a Poisson distribution.
The model is restricted to calculating the risk of infection, not the risk of active disease. Calculating the latter is extremely complex.
Interpret the transmission rate with caution. It is the annual risk of transmission, but Johnstone-Robertson and colleagues explain that 79% of prisoners awaiting trial are incarcerated for less than a year. Also the Wells-Riley model averages the effect of several complex variables. The model is useful for showing that awaiting trial prisoners are at high risk of acquiring infection, but the 90% estimate is an approximation without a confidence interval and should not be cited as the definitive calculation of risk.
The annual risk of TB transmission in the Western Cape in poor communities is also extremely high. One of the authors has pointed out to me that reaching adulthood in the province carries a similar risk of TB acquisition as being incarcerated as an awaiting trial prisoner in Pollsmoor for a year.
The horrendous conditions are not confined to just one prison. We only have detailed information on the situation in Pollsmoor because of this court case.
Johnstone-Robertson and his colleagues explain that there are many strategies to deal with the high transmission rate. They suggest that ventilator grills should not be closed at night. Communal cells can be cross-ventilated by using barred rather than solid doors and using corridor ventilator extraction systems. Carbon dioxide monitoring should be implemented. There should be active case finding and new fast TB diagnosis methods, such as the Gene Xpert presumably, should be introduced. They also say that TB notification data for South African prisons should not be considered secret or restricted information and that accurate data should be made available to the Judicial Inspectorate of Prisons to include in the annual report on the state of our prisons.
The problem, acknowledged by the authors, is that sensible recommendations for improving the situation have been made repeatedly by the Judicial Inspectorate. These can be found in the annual reports.  Dr Theron, Dr Craven and Mr Muller testified about the efforts they made to get the authorities to act. In 2000 the Department of Health set up a special task team to deal with TB. But its recommendations were either followed only temporarily, too little or not at all.
A further problem apparent from the case and several cases that the Treatment Action Campaign has been involved in is the sheer inefficiency of the court system, which creates a bottleneck that results in large numbers of awaiting trial prisoners. This is evidenced by the large number of trial hearings Lee attended and that, despite being acquitted, he spent the amount of time in prison reserved for serious crimes.
There is clearly a lack of political will to address TB in South African prisons. The steps to address TB have been identified but are not being implemented. Perhaps more cases of infected prisoners or former prisoners suing the state, such as this one, and protests are the only way to address this ongoing public health crisis.
- Johnstone-Robertson S, Lawn S, Welte A, Bekker LG, Wood R. Tuberculosis in a South African prison – a transmission modelling analysis. South African Medical Journal, Vol 101, No 11 (2011). http://www.samj.org.za/index.php/samj/article/view/5043
- Constitution of the Republic of South Africa, No. 108 of 1996.
- Lee v Minister of Correctional Services (10416/04)  ZAWCHC 13; 2011 (6) SA 564 (WCC); 2011 (2) SACR 603 (WCC) (1 February 2011.
- Judicial Inspectorate for Correctional Services annual reports.
Thank you to Alex Welte for advice.