The ‘5 star’ prison hotel? The right of access to ARV treatment for HIV positive prisoners in South Africa

Abstract

South Africa has been hailed as possessing one of the most progressive and visionary Constitutions in the world. It recognizes the right of everyone to have access to health care services. It also recognizes, in detail, various rights of accused, arrested and detained people, including the right to adequate medical treatment. However, despite the constitutionally entrenched rights, we (as civil society) are painfully aware that this does not magically transform the social conditions of the poor and marginalized amongst us. In fact, we have learnt that it is not only food, shelter and healthcare that cost money, but rights also. For without access to legal services in order to enforce one’s rights, they often remain not much more than paper ideals. This is recently demonstrated in the case of EN and Others v Government of the Republic of South Africa and Others , more commonly called the Westville Correctional Centre case (WCC case). This article will examine this case, and the implications of the right to adequate medical treatment for prisoners in South Africa, by addressing the factual background to the litigation, the legal and policy framework, the key issues that arose and the legal remedy.