September 2005 Issue no 13 In this Issue:
z A new sentencing principle in the context of HIV/AIDS?
z Access to antiretroviral treatment
z Prisons at a glance A new sentencing principle in the context of HIV/AIDS? Magida v S (SCA Case No. 515/04) by Julia Sloth-Nielsen
This landmark judgment was handed down by the Supreme Court of Appeal on the 26th August
2005. The matter was taken on appeal first to the Cape High Court and then to the Supreme
Court of Appeal against the sentence imposed by a magistrate's court. The cumulative sentence originally imposed for 99 counts of cheque fraud was 16 years and 3 months imprisonment, of
which two thirds was suspended. The unsuspended portion of the sentence was therefore 5
years, 5 months and 2 days. Although a probation officer's pre-sentence report was presented during the trial, the magistrate gave no reasons for the sentence imposed by him, nor were
reasons requested by the Cape High Court which heard the first appeal against sentence. This
appeal was therefore decided without the benefit of the magistrate's reasons, which is irregular,
and one of the reasons why the high court ruling was overturned, as specified further below.
The appellant had served part of her sentence, but was released on bail pending her first
appeal, which bail was extended pending the outcome of her appeal to the Supreme Court of Appeal. She had discovered, after being sentenced, that she had acquired HIV/Aids, and faced
the prospect of a drastically reduced life expectancy. She argued, inter alia, that her Aids status
This was, she contended, because the effects of a sentence of imprisonment would be
disproportionately harsher for her than it would be for a healthy person. She described in her
papers how without proper treatment for Aids, she would die within a matter of months. Whilst awaiting trial in prison, she had contracted tuberculosis very quickly as well as shingles and
thrush, as a result of her Aids status. Her exposure to opportunistic infections in prison
drastically increased the risk to her health. In her own words, 'her immune system crashed' and she became much sicker.
Whilst on bail pending the finalisation of her appeal, she had participated in a government sponsored anti-retroviral programme, which was effective. Doctors treating her at the
government hospital confirmed that her return to prison would have a serious impact on her
health and that lack of proper treatment would lead to premature death. This treatment, she
alleged, was not available in prison, a fact which was confirmed by way of a letter from the Head of the Prison where she had been incarcerated, who said that nevirapine was not available
In the Cape High Court, the contention that the appellant's HIV/Aids status should serve to
mitigate sentence was dismissed out of hand. In the words of the judge, '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'
The Supreme Court of Appeal (per Navsa JA) noted that the Cape High Court had erred in two ways: first, the original notice of appeal was in fact a letter from the appellant herself, and little
supplementary evidential material was provided. The Supreme Court of Appeal found that since
a new issue, viz the Aids status of the appellant, had been raised on appeal, supplementary evidence or an adequate notice of appeal should have been called for. Second, the Cape High
Court should have found it necessary to call on the magistrate to supply reasons for sentence.
For these reasons, and given the need for expeditious resolution of the matter due to the appellant's dire state of health, these misdirections left the Supreme Court of Appeal at large to
Whilst agreeing that the fact of illness does not per se entitle a convicted person to escape imprisonment, the Supreme Court of Appeal emphasized that the totality of circumstances do
have to be taken into account in order to do justice to the convicted person and to society,
Navsa JA reaffirmed the importance of the principle of individualization of sentence, and pointed
out that a particular sentence may indeed be rendered more burdensome due to an offender's state of health. This finding echoes at least two previous judgments to this effect, both also
dealing with offenders who acquired HIV/Aids after sentence. In S v Cloete 1995 (1) SACR 367
(W) Levy AJ (with Zulman J concurring) held that the fact of a prisoner's HIV condition was
relevant to an application by the Commissioner of Correctional Services to convert a sentence of imprisonment into correctional supervision. This court also held that the more burdensome
circumstances of imprisonment resulting from infection with HIV are relevant to the
reconsideration of the imposed sentence. In S v C 1996 (2) SACR 503 (T) Cameron J (as he then was) relied with approval on R v McDonald (1988) 38 A Crim R 470 (CCA NSW) and quoted
the remarks of New South Wales Court of Criminal Appeal:
'The state of health of an offender is always relevant to the consideration of the appropriate
sentence for the offender. The courts, however, must be cautious as to the influence which they
allow this factor to have upon the sentencing process.'The state of health of an offender is
always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the
This case involved an appeal against sentence, which was duly reduced from eight years to five
years as a consequence of the HIV status of the prisoner, even though he was still evidently still
In the Magida case, the Supreme Court of Appeal noted that the appellant had already spent 40
months in detention (both pre-trial, and whilst serving a portion of her sentence prior to being
released on bail pending appeal), and observing that she could die soon, the Court was of the view that her sentence should be substituted with a sentence equivalent to the time already
spent in prison. The effect of this order was that the appellant was not to undergo any further
This case is significant for three reasons. First, despite the earlier decision of the Cape High
Court in Van Biljon granting prisoners access to antiretroviral treatment in prisons, the de facto situation remains that this treatment is not available to prisoners, a fact accepted by the
Supreme Court of Appeal. Second, as regards HIV positive prisoners, the judgment details
graphically the results of exposure to prison conditions, including referring to the inadequate
diet and lack of necessary vitamins that exacerbates opportunistic infections and the onset of full-blown Aids.
Most significant, though, is the fact that the reality of prison conditions in South Africa must be factored into the sentencing process. After all, it is not solely the HIV/Aids status of the
appellant that impelled the Supreme Court of Appeal to its decision - it is this fact viewed in
tandem with the actual conditions in prisons, such as prison overcrowding, exposure to infection, poor diet, and lack or proper medical treatment. This decision should therefore be a
beacon to all sentencing officers contemplating imposing a sentence of imprisonment.
Access to antiretroviral treatment by Lukas Muntingh On 6 September 2005 the Department of Correctional Services briefed the Portfolio Committee on its "HIV/AIDS Policy for Offenders". This was the sixth briefing by the DCS to the
Committee on HIV/AIDS since 2001 and signified a different approach on the matter. In 2004
the committee did not formally deal with the issue and in 2003 the Committee was informed
that the policy was under development. The September 2005 briefing placed something more solid on the table but also stated that the HIV/AIDS policy is currently under review "to ensure
that fundamental changes in government's approach to treatment, care and support are
In the light of Magida v S (see above) it is necessary to enquire as to the state of antiretroviral
treatment in South African prisons. The DCS reported to the Portfolio Committee that the National Department of Health's guidelines for anti-retroviral therapy have been distributed to
the relevant officials. It was also reported that there is continuous monitoring of the
implementation of the anti-retroviral therapy roll-out to ensure that the DCS is included in the
implementation process in the provinces. It is also planned (or in progress) that health care workers in the department will receive training in comprehensive management of HIV/AIDS
related diseases as well as the management of anti-retroviral treatment.
What seems to be clear is that progress is slow. It is not known at this stage how many
prisoners are on anti-retroviral treatment at this stage. Figures made available by the
Department of Health for all persons nationally on anti-retroviral therapy illustrate that the roll-out programme is a time consuming task. At the end of September 2004 a total of 68 978
people were assessed for anti-retroviral treatment. Of this group, only 11 253 people were
placed on anti-retroviral treatment. It is not known if prisoners are included in this group.
The DCS is admitting that it is facing a number of tough challenges. The increasing prevalence
of the pandemic in prisons, growing complications in the management of TB, and ensuring
adherence to treatment after release are some of the major issues. The Department also
explained to the Portfolio Committee that the provisioning of anti-retroviral treatment to prisoners who qualify for treatment is a major challenge. Security arrangements and the fact
that roll-out centres in the provinces are externally situated were cited as the main reasons.
Practically, access to anti-retroviral treatment under the current delivery model means that a prisoner being detained at, for example, Pollsmoor Prison who qualifies for anti-retroviral
treatment, needs to be taken to Groote Schuur Hospital (the roll-out centre) at least once a
week to receive his/her medication and to undergo a medical examination. At the beginning phases of therapy, it will probably be required that the patient is seen more frequently than
It is also the case with anti-retroviral treatment that if the treatment is interrupted (or terminated), the patient is placed at extreme risk and life expectancy will be further
compromised. It is therefore critical that when the DCS provides access to antiretroviral
treatment, it must be able to do so "without missing a beat" - access to treatment cannot be made subject to staff availability or any other logistical reason. It is obvious that at a large
prison, such a Pollsmoor or Durban/Westville, the transporting of prisoners to and from roll-out
centres will be draining on human resources. The scenario for prisons in the far-flung rural areas of, for example, the Northern Cape or Free State becomes even more complicated with less
staff, fewer vehicles and longer distances to towns where roll-out centres are located. At this
stage it seems to be rather logistics and not political will that is the problem and this may
indeed be cause for optimism rather than desperation.
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Please feel free to send any comments or suggestions to [email protected]Prisons at a glance Category Variance
 The general principle is that enunciated by Ogilvie Thompson JA in S v Berliner 1967 (2) 193
(A), namely that while there is no general rule that ill-health or foreshortened life expectation
automatically relieves a criminal from being imprisoned, a convicted person's health or life
expectation may, depending on the circumstances, afford good reason for not sentencing him to imprisonment.
 Van Biljon and others v Minister of Correctional Services 1997 (4) S 441 (C). Pierre de Vos
notes, though, that this case was unique in that the prisoner was provided with anti-retroviral
drugs on two occasions by prison doctors after he had launched an application in court
regarding this matter, and further points out that the case had little if any effect on prisoner's
access to HIV treatment (Pierre de Vos 'Prisoners rights litigation since 1994: a critical evaluation' 2005 (1) Law Democracy and Development (forthcoming).
 The unofficial minutes of the Portfolio Committee meeting of 6/9/2005 and the submissions
made by the Department of Correctional Services are available on the website of the Parliamentary Monitoring Group at http://www.pmg.org.za/viewminute.php?id=6232
 Department of Health (2004) Monitoring Review: progress Report on the Implementation of
the Comprehensive HIV and AIDS Care, Management and Treatment Programme, Issue 1
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