Judgment No. HB 76/06
Case No. HC 1478/06
LUCY MANTOMBAZANA MPOFU
(on behalf of Butholwezwe Ndlovu
incarcerated at Gwanda Prison)
THE COMMISSIONER OF GWANDA PRISON
THE ATTORNEY GENERAL’S OFFICE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
IN THE HIGH COURT OF ZIMBABWE
17 JULY 2006 AND 20 JULY 2006
Ms N. Dubefor applicant
Mr T. Mkwananzifor respondents
Urgent Chamber application
CHEDA J: This is an application for the release of a serving prisoner on medical grounds.
Applicant is an aunt to Batholwezwe Ndlovu born on 11th September 1962, a major, [hereinafter referred to as “ the prisoner”.] The prisoner is presently serving a 17 months imprisonment at Gwanda prison for house breaking and theft and his sentence lapses in January 2007.
First respondent who is cited as “Commissioner of Gwanda prison” is infact the Officer-In-Charge, as there is only one commissioner of prisons based in Harare under whose authority, Gwanda prison operates.
Second respondent is the Attorney-General, cited herein as the officer dealing with all State legal matters.
Third respondent is the Minister of Justice, Legal and Parliamentary Affairs cited in his official capacity under whose ministry all prisons fall.
Applicant is the only relative of the prisoner who has shown an interest in the welfare of the said prisoner as evidenced by her appointment as the Executrix Dative of the prisoner’s parents’ estates.
Ms Dube, counsel for applicant has submitted that this application is sui generic as it seeks to release a serving prisoner from the State’s custody to herself due to his terminal illness. This, to me seems to be correct.
In support of her application, she filed a medical report which indicates that he is an HIV positive patient and is on treatment.
Her further argument, is, that the prison authorities have been contacting applicant to supply him with medication privately sourced by her and not supplied by the prison. It is further, Ms Dube’s argument that the fact that first respondent has been requesting that she supplies medication is indicative of their failure to medically look after him in prison.
It is also her submission that as of today, the prisoner has been admitted at Gwanda Provincial Hospital.
She further submitted, that this application is in terms of Section 116 of the Prisons Act Chapter 7:11 of which Subsection (1) states: -
“116 Release of prisoners by commissioner
Subject to Subsection (3) and any orders or directions of the Minister, the
Commissioner may at any time, by order, release, for such period and subject to such conditions as may be specified in the order, a convicted prisoner who
is serving a sentence of imprisonment which does not exceed two years; or
was sentenced to imprisonment other than an extended imprisonment for a period which exceeded two years and has less than two years still to serve.”
This section, is in my view, very clear that it is the first respondent who is enjoined with the duty of releasing a serving prisoner on good cause shown. The reason for this is clear in that this Court is functus officio as the prisoner has already been convicted by a competent court. In other words the judiciary function has already been discharged. What remains is the duty of the Executive who indeed sees to the day to day running of the prisons. The courts cannot be seen to unnecessarily interfere in that area.
Ms Dube, though clear about this procedure has opted to approach this court on an urgent basis. From my reading of the act, this court’s inherent jurisdiction is not ousted by the said act, it can only do so, if indeed the facts presented justify its intervention.
Applicant has deposed to an affidavit wherein she averred that the prisoner is terminally ill and that the prison authorities are not in a position to provide such requisite care for a terminally ill patient. She went on to state that a Prison sister, one, Ms B. N. Ndlovu has on countless occasions called upon her to come and witness the illness, she however, did not file a supporting affidavit from her to support her averment.
A supporting affidavit was necessary, in my view, as it would have helped in the determination of the prisoners medical condition and the prison’s inability to medically look after him.
Applicant has alleged terminal illness of the prisoner. In her attempt to bolster her argument she submitted three documents namely, the prisoners’ HIV test results, prescription and medical card. I propose to deal with these documents as follows:-
It is clear that the prisoner is HIV positive as evidenced by the results in “The Client result sheet”. It is now common knowledge that due to the advancement of medical research and development, being HIV positive is not per se terminal, as there are a number of HIV positive people the world over leading positive and normal lives.
In my view, in order for one to succeed in this argument there is a need for a clear medical evidence that the prisoner who is HIV positive, is indeed terminally ill. This proof must be by a medically qualified personnel and not by lay persons. Professor K.C Calman in his article “Ethical Implications of Terminal Care” in Medicine, Ethics and The Law, Stevens and Sons 1988, London at Page 104 states:-
“In general terminal illness begins when three conditions have been satisfied. First the diagnosis of the illness has been made and other remedial conditions eliminated. Secondly, that the advent of death is certain and not too far off. This is a particularly difficult decision to make. Thirdly, that medical and nursing effort has turned from curative to the palliative. This last point is, in effect, the practical way in which the decision that dying is occurring is implemented by the health care team.”
I find that the learned author who is an expert is his own field has adequately described what terminal illness is. In the absence of any contrary description, I have no alternative but to agree with him in toto.
As pointed out supra, I would have entertained and seriously considered this application if applicant had shown that in view of the terminal illness, which is supported by medical evidence and proof on a balance of probabilities that the procedure laid down in section 116 of the said Act should in the circumstances be dispensed with as failure to do to so, would jeopardise the prisoner’s right to palliative treatment. This, applicant, has not shown and therefore nothing persuades me towards that direction.
The prescription filed of record emanates from Gwanda Hospital although the medication was acquired from a private pharmacy by applicant.
The prescribed drug is called “pyridoxine 50mg”. This drug is described in MARTINDALE: The extra Pharmacopoeia. Pharmaceutical press, 1989 at P1270-1271 as:-
A white or almost white odourless or almost odourless crystalline powder, or crystals.
Uses and administration
Pyridoxine, a white soluble vitamin, is involved principally in amino acid metabolism, but is also fat metabolism.
It is also required for the formulation of haemoglobin.
Deficiency of pyridoxine is rare in humans due to its widespread distribution in foods. Pyridoxine deficiency may however be drug induced and can occur, for instance during iodized therapy.”
My simple understanding of the efficacy of this drug is that it is a vitamin complex. It would have been appropriate for applicant to show by perhaps a Pharmacist and/or Doctor what effect this drug has on the prisoner in order to assist me in the determination of this application. In the absence of such evidence I am unable to make a determination in her favour:
(c) Medical card
The medical card shows the temperature, blood pressure and weight of the prisoner on admission. It also shows the findings by the Doctor which are illegible and which eventually led to pre-test counselling with regards to his HIV status. It also shows the treatment regime.
Again this is an area which should have been adequately addressed by a medical expert as it touches on a specialised field.
For the above reasons, I find that applicant has not made a good case and the application is accordingly dismissed.
Marondedze and Partners, applicant’s legal practitioners
Attorney General’s Officerespondent’s legal practitioners