Jonathan Berger
Jonathan Berger

Bye-bye Balfour?

MM died in August 2006. Four months before his death, as an inmate at Westville Correctional Centre (WCC), he joined 15 others in taking Correctional Services Minister Ngconde Balfour to court. That case resulted in Balfour and others being compelled to take reasonable steps to ensure access to antiretroviral (ARV) treatment at WCC.

MM only started taking ARVs a few weeks before his death. According to the government’s own guidelines, he should have started treatment in November 2003 — about 32 months earlier. But it was only as a result of the legal action that spurred Balfour and his department into action. Absent the case, many more inmates at WCC would also have died.

Shortly after MM’s death, the TAC — a co-applicant in the WCC case — requested that the Judicial Inspectorate of Prisons (JIOP) conduct an investigation into MM’s death and other related matters at WCC. This investigation took place and was completed in or around December 2006. According to the JIOP, its report on the investigation was sent to Balfour shortly thereafter.

Repeated efforts on the part of the Treatment Action Campaign’s (TAC) legal representatives — the Aids Law Project (ALP) — to gain access to the MM report were unsuccessful. As there is strong evidence to suggest that MM’s death was caused by the delay in accessing ARV treatment, the TAC felt compelled to invoke legal proceedings to secure a copy of the JIOP report.

On Friday, the Pretoria High Court handed down judgement in Treatment Action Campaign vs Minister of Correctional Services and Another 2009. In short, Justice Brian Southwood’s decision orders Balfour to hand over to the TAC unedited hard and electronic copies of the JIOP report. It also authorises the JIOP to do the same.

In his judgement, Justice Southwood dismisses each of the minister’s procedural defences one by one. Most important is his scathing condemnation of Balfour’s conduct and the conduct of many officials in his department. Without expressly using the L-word, he finds Balfour’s version of the whereabouts of the JIOP report as “so farfetched and untenable that it must be rejected”.

The judgement goes even further, describing the manner in which Balfour and his department showed “complete disregard for the Constitution” and the Promotion of Access to Information Act (PAIA):

“There is no indication … that the department complied with its obligations under PAIA at any stage. … Only after proceedings were instituted did the minister and the department attempt to justify failure to hand over the report and then on spurious grounds. It is disturbing that the first respondent has relied on technical points which have no merit and instead of complying with its constitutional obligations has waged a war of attrition in the court. This is not what is expected of a government minister and state department. In my view their conduct is not only inconsistent with the Constitution and PAIA but is reprehensible. It forces the applicant to litigate at considerable expense and is a waste of public funds.”

The judgement also takes issue with the manner in which the minister responded to the application. In particular, it finds as unacceptable the minister’s bald denials, unsubstantiated by any evidence:

“The failure to call the information officer … to establish the material and essential facts … and the failure to call Ms [Loretta] Jacobus, its deputy minister, to deny that she said what was alleged in the founding affidavit, justifies an inference adverse to the first respondent that they could not establish these facts. … Apart from failing to call the obvious witnesses … the minister’s attempts to establish these facts are singularly unconvincing.”

The judgement was delivered almost two years after the ALP and TAC first requested Balfour to provide them with a copy of the JIOP report. Instead of enabling access to information held by the state “as swiftly, inexpensively and effortlessly as reasonably possible”, Balfour and his department used every opportunity to frustrate the ALP and TAC.

Both organisations were forced to devote valuable time, money and energy to ensuring that a cabinet minister “obey, respect and uphold the Constitution and all other law of the republic”. Other less well-resourced organisations and individuals are not able to do so. In ordering a punitive costs order, the court has indicated its disapproval of Balfour’s conduct. But is this enough?

Recent reports in the Mail & Guardian strongly suggest that Balfour is unfit to hold public office. Justice Southwood’s findings support this conclusion. Now is the time for the president and his party to act. Balfour should be removed from office. His name should be taken off the ANC’s election list. Anything less will cast doubt on their commitment to the rule of law and the Constitution.