11 November 2021
The courts have been used to fight for the right of access to antiretroviral therapy and to resist HIV-related discrimination.
On 10 December 1996, President Nelson Mandela signed the final Constitution into law at Sharpeville, Vereeniging. A band of activists from the National Coalition for Gay and Lesbian Equality, the AIDS Law Project and the AIDS Consortium attended the ceremony. We were there to celebrate.
The struggles of the organisations in which I have worked have relied on the supremacy of that Constitution against the state and corporations. We have used the law and the courts to resist HIV-related discrimination; against the oppression of lesbian and gay people; to fight for access to antiretroviral therapy; to demand the right to sanitation, safety in informal settlements and urban land justice; to fight for the right to protest and to resist state capture of commuter rail services.
This story starts in 1994 at the time of the Interim Constitution.
I entered the gates at Pretoria Central Prison to meet Josephus*, a scrawny white working-class gay man living with HIV. Before I could meet Josephus, I encountered the grey steel juggernaut of the Afrikaner Nationalist prison bureaucracy. Commanders, warders, rules, regimentation and gangs organised the oppression of inmates. We speak of the three branches of the state as the legislature, the executive and the judiciary but this ignores the bureaucracy. The state’s bureaucracy is its most enduring arm and also the most powerful.
At the time of my meeting Josephus, HIV was regarded as punishment for homosexuality, and sodomy was regarded as a crime. I had gone to consult with him as a paralegal officer of the AIDS Law Project or the ALP as it was known. The ALP was founded by Edwin Cameron, then a senior advocate based at the Centre for Applied Legal Studies.
In 1993, Cameron had brought the Barry McGeary case before the then Appellate Division, where a unanimous court affirmed the right of people living with HIV to medical confidentiality and privacy. The court found that confidentiality was not only medically justified for the individual but also served the public interest because, if confidentiality was assured, people would be more likely to be tested, treated and receive counselling to prevent further HIV transmission. This precedent set the standard on HIV for all future law, policies, guidelines and legal matters before the courts.
Cameron had asked me to visit Josephus in prison and to help build his case. Armed with knowledge of the McGeary case, I confidently approached a wary prisoner.
Josephus did not stand a chance against the prison bureaucracy. He had been convicted of 32 counts of fraud and theft from his employer amounting to about R600,000. In November 1992, he was sentenced to eight years in prison with two years of his sentence suspended.
After he had served 18 months, the Commissioner of Correctional Services made an application to the Magistrate for Josephus to be released and to serve the rest of his sentence under correctional supervision. He was regarded as a model prisoner who had tested positive for HIV in prison and needed specialist medical attention and psychological counselling. In fact, Josephus had been tested without informed consent, and he was removed from his work in the prison kitchen and isolated from other prisoners.
The ALP approached attorney Mosh Thulare to represent Josephus in the Magistrate’s Court. The vast majority of magistrates appointed under apartheid were pro-police and showed strong racist, homophobic and sexist attitudes. The irony of a black attorney representing a gay, white male living with HIV was not lost on the magistrate. He bristled with prejudice and tried to insist that the proceedings be conducted in Afrikaans because it was clearly the home language of the prisoner.
“The Constitution guarantees your right to be heard in Afrikaans,” he bellowed. Josephus calmly informed him that he was comfortable with English. It was downhill from there. The magistrate denied the Commissioner of Prisons’ application for correctional supervision.
His reasoning was both homophobic and discriminatory on the ground of HIV status. He found that:
“It is common cause that the accused led a lifestyle of choice which possibly and probably would in the future bring the HIV virus upon himself. It is common cause that the accused committed 32 counts of serious offences by his own volition over a period of two years in a sly manner so that he would not be detected.”
There can be little doubt that the magistrate believed that Josephus’s sexual orientation as a gay man was “a lifestyle choice”, and that as a consequence, he had “brought” HIV on himself. The magistrate also indirectly linked the criminal “slyness” of the accused to his sexuality and HIV status.
The appeal came before Justices Levy and Zulman in the Johannesburg High Court on 26 October 1994 and Josephus was represented by Advocate Danny Berger through the AIDS Law Project, who had worked with Cameron on the McGeary matter.
In a judgment delivered on the same day as the hearing, Judge Levy found that the magistrate had erred. The appeal succeeded, mainly on two grounds: first, there was new evidence based on Josephus’ health and HIV status and second, this evidence was admissible, as the case did not pertain to the finding of guilt but, rather, the appropriateness of the sentence.
Justice Levy rejected the magistrate’s conclusion that Josephus was the “author of his own situation”. The court accepted that Josephus might have contracted HIV in prison after a sexual assault, and Justice Levy pointed out that it was only after Josephus started serving his sentence that his medical condition came to the attention of “the authorities” because they tested him for HIV. The court found that:
“The evidence placed before the court … shows that the prison authorities themselves had regarded his medical condition as such that he should be excluded from contact with his fellow prisoners. It was said and not disputed, that he had been usefully engaged in the kitchen of the prison where he was detained; that he had been removed from that employment in which he found some enjoyment and that he was thereafter kept in virtual isolation from his fellow prisoners. One can well understand the concern of the prison authorities for the possibility of infection of fellow prisoners but that they did so, adds to the appellant’s complaint that he is in a far worse position now, by reason of his infection, than he ever would have been if he was in normal health and serving his sentence in a normal way.”
Justice Levy went on to explain that the psychologist reports provided to the magistrate stated that Josephus had “suffered a severe psychological injury” because he had lost his employment in the prison kitchen and endured isolation and segregation. In addition, Josephus was traumatised when he learnt of his HIV status. The court agreed that he required specialist psychological counselling and other medical treatment not available in prison but available free outside prison.
“The denial of that kind of treatment, by the refusal to convert his imprisonment sentence to one of correctional supervision, is again a harsher punishment than could ever have been intended by the court which sentenced him to imprisonment.”
The High Court also found that the magistrate ought to have considered and accepted the facts that the prison authorities, supported by psychologists and therapists, made the application for Josephus’s sentence to be converted into correctional supervision.
When the application came before the magistrate, he had a duty to consider only the facts before him, the High Court said, but he had decided the case on the basis of the crime committed by Josephus and his aversion to the prisoner’s health and sexuality.
“There is ample evidence on the record and in the judgment … that the magistrate was really trying the appellant again. He was at great pains to point to the irresponsibility of the appellant, both in his private life and in his employment, and come to the conclusion that the sentence, which had been imposed on him was a fit and proper one.
“… That shows, without a doubt, that there was a gross misdirection by the magistrate of his function in hearing the application for correctional supervision.”
Justice Levy, joined by Justice Zulman, then set out the conditions for the correctional supervision of Josephus. These were two old order judges who had to overcome the prejudices of their class and race to render a progressive judgment.
In 2003, Nomawethu* appeared before Judge-President John Hlophe in an appeal for a shorter sentence because she feared dying in prison. Nomawethu learnt that she had HIV after she contracted tuberculosis in prison. An unemployed single mother, Nomawethu had never known her father and had almost never lived with her mother. Between 1995 and 1999 she had worked for six different employers.
Convicted of fraud, she showed remorse and pleaded guilty. She was sentenced to an effective five years in prison in 2001 in the Bellville Magistrate’s Court and had no access to HIV treatment. She appealed to the Western Cape High Court, and her doctors provided evidence that she needed treatment to which she could have access through a clinical trial at Groote Schuur Hospital. She could not access antiretrovirals in prison. This was at the height of the HIV denialism of the Thabo Mbeki era.
Judge-President Hlophe refused the appeal, holding that “she was very lucky to get this kind of sentence”. He demonstrated no understanding of the evidence before him — that she might never get a chance to hold her child again. The Judge-President gave a curt reason for his judgment that she should remain in prison.
“The appellant who pleaded guilty knew exactly what she was doing. When she is in prison she will still be entitled to receive her treatment. No case has been made out or no suggestion has been made that she has been deprived of treatment for her HIV status by relevant authorities. I am not aware of any good authority for the view that if someone is HIV-positive, he or she may get away with murder. In my view the sentence fits the crime. She was very lucky to get this kind of sentence for the crimes she committed. I would dismiss the appeal against sentence as being altogether without merit.”
Nomawethu was sentenced to prison after she pleaded guilty to a crime in which there was no physical or mental harm to any person. Doctors and the prison authorities agreed that she could not access life-saving antiretroviral therapy in prison. On the legal pretence that he was “not aware of any good authority for the view that if someone is HIV-positive, he or she may get away with murder”, Judge-President Hlophe ignored the Josephus M. case.
His judgment was appealed at the Supreme Court of Appeal. There, citing, the Josephus case, Appellate Justice Mohamed Navsa reasoned:
“…it was held that a court, in considering an appropriate sentence, may take into account a convicted person’s ill-health and how it may relate to the effect of a contemplated sentence. Thus, for example, a particular sentence may be rendered more burdensome by reason of an offender’s state of health.”
Nomawethu could have died in prison had the appeal court not overturned Hlophe’s cruel decision, which was wrong in its facts and wrong in law. She was released based on her time served.
Josephus left Pretoria Central Prison the morning after the Levy judgment. His mother embraced him as he came through the gates of the prison. The next day, he came to the AIDS Law Project to discuss the court order, wearing an enormous smile. Today, Josephus is alive, working and happy. He fulfilled every condition of his correctional service order and was able to access adequate healthcare.
The judgment in the case of Josephus had a significant impact on prisoners living with HIV, through government policy, further court judgments, HIV treatment and public health. Law and power were central to the changes in prison policy and practice on HIV.
The journey that Josephus started and the action of the Treatment Action Campaign along with the AIDS Law Project saved the lives of thousands of prisoners living with HIV.
* Names changed