Dausab v Government of the Republic of Namibia (HC-MD-CIV-MOT-GEN-2023/00283) [2024] NAHCMD 677 (8 November 2024)

Dausab v Government of the Republic of Namibia (HC-MD-CIV-MOT-GEN-2023/00283) [2024] NAHCMD 677 (8 November 2024)

REPUBLIC OF NAMIBIA



IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT



PRACTICE DIRECTION 61

Case Title:

ANDRE FRIEDEL CASTRO DAUSAB APPLICANT


and


THE GOVERNMENT OF THE

REPUBLIC OF NAMIBIA RESPONDENT

Case No:

HC-MD-CIV-MOT-GEN-2023/00283

Division of Court:

HIGH COURT (MAIN DIVISION)

Heard before:

HONOURABLE LADY JUSTICE PRINSLOO

Date of hearing:

9 September 2024


Delivered on:

8 November 2024

Neutral citation: Andre Friedel Castro Dausab v The Government of the Republic of Namibia

(HC-MD-CIV-MOT-GEN-2023/00283) [2024] NAHCMD 677 (8 November

2024)


Results on merits:


Merits not considered.


The order:

  1. The application is dismissed.

  2. No order as to costs.

Reasons for order:


PRINSLOO J:


Introduction


  1. The applicant is Andre Friedel Castro Dausab, an adult male currently serving a sentence in the Hardap Correctional Facility in Mariental.


  1. The respondent is the Government of the Republic of Namibia.


  1. In his Notice of Motion dated 26 June 2023, the applicant sought the following relief:


‘1. The applicant prays to this honourable Court to order the respondent to transfer the applicant to the Windhoek Correctional Facility, which has isolation facilities that meet the ideal conditions for his medical condition;

2. The applicant prays to this honourable court to order the respondent to afford the applicant access to electricity for the use of Doctor prescribed devices and items, and thus the use of such devices and items;

3. The applicant prays to this honourable court to order the respondent to allow the applicant access to all types of food provided by his family and to consume this food wherever cell he lives in, and also permits the applicant to buy sufficient food- any kind of food and drinks except alcohol, every item is subject only to a dignified search;

4. The applicant prays to this honourable court to order the respondent to secure and provide the salbutamol respirator solution and inhalers from the state-owned and privately owned pharmacies without delays and as needed by the applicant and

5. The applicant prays to this honourable Court to order the respondent to provide at least ten slices of bread and equal weight of rice on a daily basis and provide either fish or chicken in place of pork; and

6. The applicant prays to this honourable court to order the respondent not to pursue any course of action which shall harm or worsen the applicant's medical condition or which shall cause death.’


  1. Having heard and considered the application of the applicant on 2 February 2024, this court made the following order on 19 April 2024:

‘1. The application to be transferred to the Windhoek Correctional Facility is refused.

  1. The respondent is ordered to accompany the applicant to a Health Facility, i.e. hospital/clinic, in order for a health practitioner/doctor to prescribe and dispense a Salbutamol respirator and/or solution to the applicant.

  2. The respondent is ordered to arrange with the Health Facility to cause a health practitioner/doctor to conduct a full examination of the health of the applicant, with specific reference to his asthmatic condition, on or before 25 April 2024.

  3. The health practitioner/doctor must, after the full examination, furnish a medical report to this court on or before 16 May 2024.

  4. There is no order as to costs.’

  1. The court issued the order on 19 April 2024 because it could not make any findings regarding the applicant's prayers 2 to 5 in the Notice of Motion until the applicant underwent a proper medical examination by a qualified medical practitioner. Based on the severity of the applicant's medical condition, the court would then be able to consider and determine the requested relief.


Pursuant to the ruling in April 2024


  1. After the court's ruling on 19 April 2024, the applicant underwent two medical reviews by different doctors.


  1. Dr Gabiel Alapoti, a Senior Medical Officer employed by the Ministry of Health and Social Services station at Mariental, examined the applicant on 10 May 2024 and recorded the following:


Medical Review – Andre Friedel Castrol (sic) Dausab – DOB 26 May 1980


Based on the request presented to me at the dedicated clinic located at Mariental Hospital, I reviewed Mr Dausab’s medical record and conducted a necessary physical examination.


The medical records indicate that Mr Dausab has been receiving treatment for asthma for over eight years. He has experienced asthmatic symptoms triggered by multiple factors.


On examination, he appears healthy and in no obvious distress (respiratory or otherwise). His vital signs—blood pressure, heart rate, oxygen saturation, and respiratory rate — were normal. However, there was a distant wheeze on chest auscultation. The heart and bowel sounds were normal. No other abnormalities were found during the examination.


In summary, the available medical records and physical findings are consistent with a long-standing and reversible obstructive respiratory condition strongly indicative of asthma.’


  1. The court was not satisfied that the aforementioned medical report was comprehensive enough to address the issues raised by the applicant and, as a result, recorded the following observations and directed as follows:


‘Whereas the Respondents filed a doctor's report, however in the Court's view it is a superficial report, which does not address the issues previously raised in judgment; Whereas the Applicant received medication as directed:


IT IS ORDERED THAT:

1. The case is postponed to 20/06/2024 at 15:00 for a Status hearing (Reason: Amplified Doctor's Report).

2. The Medical Practitioner must address the following:

2.1 the severity of the condition of the Applicant;

2.2 does the condition of the Applicant justify the following:

2.2.1 a specialised diet and if so what.

2.2.2 specialised machines;

2.2.3 specialised bedding;

2.2.4 any other requirements which may prevent asthma attacks.’


  1. A further medical report was filed dated 13 June 2024, drafted by Dr Maria S. Moses, a Senior Medical Officer – Internal Medicine stationed at the Intermediate Hospital Katutura, which states as follows:


MEDICAL REPORT ANDRE FRIEDEL CASTROL (sic) DAUSAB –DOB 26 MAY 1980


I, Dr Maria Moses, a General practitioner at the Katutura Intermediate hospital, examined the abovementioned on 3 June 2024.


Mr Andre Dausab was diagnosed with Asthma during childhood. During the evaluation, it was noted that he had Severe uncontrolled Asthma based on the Global Initiative for Asthma (GINA) guidelines. The severity was most likely due to suboptimal treatment which was then adjusted.


The diagnosis was confirmed by Spirometry (Lung function test) done 07/06/2024.


He is also a previous smoker of cigarettes which has an impact on Asthma.


At the time of examination, His vitals were as following:

  • blood pressure:114/83(92)

  • pulse 67 beats per minute

  • oxygen saturation on 98% on Room air.


His respiratory findings were normal at the time of examination with no wheezes that would suggest an acute exacerbation. During his review on 7th June 2024, his medication were adjusted accordingly.


I want to state the following about patients with Asthma.

  1. As per my knowledge, there is no special diet for asthmatic patients or that can assist in asthma control. Mr Daoseb (sic) had a Radio-allergy absorbent test which shows no food allergies to the foods tested.

  2. There are no specialised bedding for asthma patients.

  3. I recommend the patient avoids conditions which may exacerbate their asthma. These may include dusty conditions, mould, strong perfumes, and house dust mites.

  4. Patient must keep warm and dress appropriately during cold season.

  5. Patient must avoid the use of cigarettes of whatever type and their exposure.

  6. Lastly patient must adhere to his medications as prescribed.’


  1. Further arguments were advanced by the parties on 9 September 2024 to the following effect:


On behalf of the applicant


  1. The applicant's current heads of arguments will be considered together with the heads of arguments submitted on 23 August 2023, as far as they do not relate to the applicant’s averments in respect of his transfer to Windhoek Correctional Facility, as the court already made findings in that regard and the court is thus functus officio.


  1. The applicant submitted that he is asthmatic, and his condition is chronic and severe, and as a result, he requires specialised medical care. He further contended that he requires the use of specialised medical devices and a specialised diet to reduce the severity and frequency of his symptoms.


  1. As a result of his condition, the applicant contended that he urgently requires the following:


  1. placement in a single cell;

  2. food which has no asthma triggers;

  3. medication like Salbutamol respirator solution and inhaler.


  1. On a less urgent basis, he requires an air conditioner, a nebuliser, a peak flow meter, a spirometer, a fitness monitor (watch), a mattress and sheets (anti-bacterial) and anything else which can aid in monitoring and controlling his condition.


  1. Due to the applicant’s incarceration and limitation to private physicians, the court ordered that he be taken for further examination and that the relevant reports be filed. This was done, and the applicant was taken to Drs Alapoti and Moses, both employed by the Ministry of Health and Social Services.


  1. The applicant was quite critical of Dr Moses's report, complaining that although Dr Moses confirmed his condition, the report was superficial. He further averred that no full medical screening was conducted. The applicant referred back to the medical reports by Drs Liezl Diergaardt of the Khomas Medical Centre and Mudzamiri of Mariental State Hospital.


  1. In her notes dated 26 July 2019, Dr Diergaardt certified that the applicant suffers from chronic gastritis and constipation caused by his diet and indicated that he should be allowed to buy or bring in food like fruits and vegetables, white bread and milk to reduce the frequency of the symptoms. On 19 January 2021, the said doctor issued a further note wherein she confirmed that the applicant is a known asthmatic and recommended that he be allowed to bring his own mattress and air conditioner to decrease exposure to triggers. Dr Mudzamiri of the Mariental State Hospital issued a recommendation along similar lines on 14 April 2022, adding that the applicant should be allowed to bring in a peak flow meter and a spirometer to allow the applicant to monitor himself during exercise, thus reducing attacks.


  1. The applicant essentially relies on the recommendations of Drs Diergaardt and Mudzamiri for his submissions and contended in his supplementary papers that Dr Moses's observations cannot refute the observations of the other two doctors.


  1. He further contended that asthma is triggered by allergens and irritants in the air, food, and drinks. If such triggers are in the food, he would not be able to consume it, and if clean, nutritious, and sufficient variety of food is not available to him, then a special diet is required. The applicant further alleged that the food at the Hardap Correctional Facility contains impurities, stones, sticks, grass and weeds, which makes the food of low quality.


  1. The applicant submitted that no person, official or doctor can dictate what the applicant can or cannot eat. He continued to state the he need not be sick in order to have access to food and drinks of his choice and that, that choice is a provision of Article 21(1)(c)1, which is protected under Article 24(3)2 of the Namibian Constitution.


  1. The applicant states that he cannot consume much of the food provided by the respondent due to his religious, cultural, and medical restrictions. He emphasises that no medical professional can address the religious or cultural limitations related to food and drinks. For instance, the applicant points out that the prohibition against eating pork or dog is rooted in his religious and cultural beliefs rather than medical concerns.


  1. In response to Dr Moses's findings regarding the specialised bedding, the applicant argued that an antibacterial, dust-resistant mattress and bedding would prevent the formation of mould, insects, and dust that causes asthma attacks. Although Dr Moses did not address the machines sought by the applicant, he proceeded to set out the benefits of these devices in maintaining his condition.


  1. In conclusion, the applicant submitted that the medicine, machines, bedding, and food as sought are indispensable for his well-being whilst incarcerated.


On behalf of the respondent


  1. Ms Fenyeho, arguing on behalf of the respondent, does not take issue with the fact that the applicant suffers from asthma but submitted that, having regard to the report drafted by Dr Moses, it is clear that the severity of the applicant’s condition was most likely due to sub-optimal treatment, which was adjusted.


  1. Ms Fenyeho further submitted that Dr Moses’s report clearly states that there is no special diet for asthma patients, which, in her view, makes sense as asthma is a condition of the lungs and not related to diet.


  1. Counsel contended that the applicant’s averments regarding impurities in the food, like stones, sticks and grass, are devoid of any truth as the diet and food preparation at the Hardap Correctional Facility, as in any other facility, is in accordance with regulation 216 of the Namibian Correctional Service Regulations.3 In addition thereto, the food provided to the inmates is inspected by qualified officers in terms of regulation 217 to ensure that the food meets the nutritional value.


  1. In the current instance, there is no specialised diet prescribed for the applicant by a qualified doctor or nutritionist. Ms Fenyeho submitted that if an application for a special diet was refused by the respondent, then the applicant would have recourse by challenging that decision. Further to that, the applicant did not indicate that he had food sensitivity or allergies, which is supported by the radio-allergy absorbent test conducted during the examination by Dr Moses. As a result, there is no reason for the applicant to request a special food diet.


  1. According to Ms Fenyeho, the applicant’s statement that ‘no person, official, or doctor can dictate what the applicant can or cannot consume’ is correct as far as the applicant is not incarcerated. However, in reality, he is in the custody of the respondent and will receive food and drinks at the facility like all other inmates until such time as the applicant can present a special diet to the respondent. She submitted that the inmates do receive fruits and vegetables as part of their diet, and the applicant’s requirements and quantities of his meal appear to be based on personal needs.


  1. Ms Fenyeho pointed out that the applicant is allowed to access and use medical machines in his cell at the facility, which he confirmed. He also has access to the facility’s clinic if and when he requires assistance. The applicant also has access to electricity in the internal clinic so he can use his prescribed medical devices and machines.


  1. In conclusion, Ms Fenyeho submitted that the applicant failed to make a case for a special diet that is different from that of the other inmates and prayed that the applicant's application be dismissed.


Issue for determination


  1. The issue for determination on the papers before this court is the severity of the applicant's medical condition and whether, as a result of his medical condition, he is entitled to a special diet, special bedding, and other electronic equipment in line with the prayers set out in his Notice of Motion.


(Prayer 2)


  1. In the order of this court dated 19 April 2024, the respondent was ordered to take the applicant to a health facility so that a doctor could prescribe and dispense a Salbutamol respirator and/or solution to the applicant. From my understanding, there was compliance with this order.


(Prayer 1)


  1. This court also previously addressed the issue of the transfer sought to the Windhoek Correctional Facility, and nothing further needs to be said in that regard.


Dispute of fact


  1. From the onset, I must point out that there are serious disputes of fact between the parties regarding the full extent of the applicant's condition and as a result, his needs.


  1. Application proceedings, unless concerned with interim relief, are all about legal issues based on common cause facts. Unless special circumstances exist, they cannot be used to resolve factual issues because they are not designed to determine probabilities without oral evidence. Therefore, when factual issues arise in motion court proceedings, relief should be granted only if the facts stated by the respondent, together with the admitted facts in the affidavits, justify the order. The Plascon-Evans rule4 applies to the current facts, and on that basis alone, this application stands to be dismissed. I will, however, for completeness sake, deal with the individual prayers as set out in the Notice of Motion.


  1. What is an undisputed fact between the parties is that the applicant has asthma, and it is a chronic condition. Asthma can be life-threatening depending on the severity of the condition, and as a result, this court previously granted an order in April 2024 ordering the respondent to accompany the applicant to a Health Facility, ie hospital/clinic, in order for a health practitioner/doctor to prescribe and dispense a salbutamol respirator and/or solution to the applicant. This order does not have an end date and will apply until such time that the applicant is discharged upon completion of his sentence.


Discussion


Introductory remarks


  1. When the State deprives people of their liberty, it takes on a responsibility to look after their health, both in terms of the conditions under which it detains them and the individual treatment that may be necessary.5


  1. Individuals who are incarcerated are entitled to the same access to health care as everyone else. Prison administrations are responsible for ensuring that inmates receive adequate medical care and that prison conditions support the well-being of both inmates and staff.


  1. To achieve this, various measures were implemented to ensure inmates' right to adequate medical treatment, including legislation, regulations, and policies inspired by international norms. Section 23 of the Correctional Services Act 9 of 2012 (the Act), requires that the Correctional Service must provide each inmate with:


‘(a) essential health care services;

(b) reasonable access to non-essential mental health care with an emphasis on the inmate’s rehabilitation and successful reintegration into the community; and

(c) access to preventative health measures.’


  1. The Act further provides that each correctional facility must have a medical practitioner appointed or assigned to serve as medical officer.6 The medical practitioner is responsible for the health care of all inmates in the correctional facility for which he or she is appointed or assigned.7


  1. Regulation 224 also provides for the establishment of hospitals or clinics at the correctional facility in the following terms:


‘(1) A hospital or clinic must be established at every correctional facility and be equipped according to local requirements to provide a sick offender with accommodation for his or her care and medical treatment by the medical service personnel.’


The applicant’s medical condition


  1. As indicated earlier, the applicant's medical condition is not an issue in dispute. From Dr Moses's report, it appears that the severity of the applicant’s condition was most likely due to suboptimal treatment, which was then adjusted.


  1. The report by Dr Moses does not stand in isolation as Dr Gabiel Alapoti’s finding, which preceded that of Dr Moses, was that the applicant’s condition was consistent with a long-standing and reversible obstructive respiratory condition strongly indicative of asthma. The term "reversible" means that treatment can usually help with symptoms.


  1. There is no dispute that the applicant not only has access to the clinic at the facility for treatment but that s 28 of the Act provides that if an inmate falls seriously ill, he or she may be admitted to a State hospital for treatment, either on the recommendation of the medical officer or in case of an emergency without such prior recommendation.


  1. The applicant, therefore, has access to adequate healthcare to control his condition.


  1. This court is not clear on the necessity of the medical devices sought. The notes filed by Drs Diergaardt and Mudzamiri contained recommendations regarding these devices, but they recorded no motivation as to their necessity. It should also be noted that those notes date back to 2019 and 2021, respectively. Be that as it may, the devices prescribed by the medical practitioners were approved on 1 June 2022, provided that the applicant purchased the items at his own cost.


  1. The applicant seeks an order to have access to electricity to use the prescribed medical devices. However, according to the applicant, he has never been refused access to electricity for his medical devices. Prayer 2, therefore, became academic at best.


Applicant’s dietary needs (Prayers 3 and 5)


  1. Having considered the applicant's arguments, it is not clear if the dietary needs the applicant insists on are motivated by food allergies or religious beliefs.


  1. Dr Moses reported that the applicant has no food allergies and further indicated that there are no special diets for asthmatic patients that can assist in asthma control. No definitive findings can be made regarding the existence of whether the applicant has food allergies or not, as it is clear what the parameters of the radio-allergy absorbent test8 were. The test results were not made available to this court. Dr Diergaardt, in her report from 2019, recommended that the applicant supplement his diet with fruits, vegetables, white bread, and milk. Although the nutritional value of these foodstuff is important, especially with the applicant’s gastritis issue that he had, it is not clear how it would prevent the frequency of the applicant’s asthma attacks.


  1. The applicant avers in his papers that the food provided to inmates contains impurities, stones, sticks, grass and weeds. This is vehemently denied by the respondent, who referred the court to the provisions of the regulations dealing with the preparation and inspection of food and water. There is nothing before this court to gainsay that there is compliance with regulations 216 and 217 hereunder.


  1. The regulations deal specifically with diet and preparation of food in the following terms:


‘Diet and preparation of food

216. Subject to regulation 218, an offender must be provided with food that has an adequate nutritional value according to the prescribed diet scale, which consists of a reasonable variety and is well prepared and served.


Inspection of food and water


217. The medical service personnel must regularly inspect all uncooked and prepared food and must report to the officer in charge or any senior officer at the time being in-charge of the correctional facility on the sufficiency and quality of the food and on the purity and adequacy of the water used for human consumption and other domestic purposes.’

  1. The applicant, during argument, made reference to his religious beliefs and stated that as a result of his religion, it is prohibited to eat pork and therefore pork must be replaced by fish or chicken. The applicant’s religious beliefs were never raised in his papers as the ground upon which prayers 3 and 5 are sought.


  1. The Commissioner-General made it clear that if the applicant submits a report from a nutritionist or dietician, he will not be denied access to the foods contained in the diet. It was further made clear by the Commissioner-General that the standardisation of the diet menu has assisted the Namibian Correctional Services in ensuring adequate food supplies to meet the inmate's needs and that the food provided to the inmates is in accordance with the applicable prescribed standards.


  1. Should the applicant obtain recommendations from a nutritionist or dietician regarding a special diet and it is refused by the Facility, then the applicant would have further recourse by instituting judicial review proceedings to set such a decision aside.


  1. To date, no such application for a special diet has been made, either on the basis of the applicant’s health condition (supported by the relevant report) or his religious beliefs.


Special bedding


  1. In her report, Dr Moses made it clear that there is no special bedding for asthma patients. There is nothing to the contrary before this court. The internet articles that the applicant filed in support of his application, unfortunately, do not take the matter any further. The court acknowledges the applicant's struggle to avoid conditions that may worsen his asthma while incarcerated. However, even outside of incarceration, it is impossible to completely avoid these triggers. Having considered the papers, it is not clear if the applicant applied to receive special bedding from his family and what the response to such an application was.


Conclusion


  1. In light of the discussion above, I am of the view that the applicant failed to show on a balance of probabilities that he is entitled to the relief sought in the Notice of Motion, and I make an order as set out above.


Judge’s signature

Note to the parties:


Not applicable.

Counsel:

Applicant

Respondent

Andre Friedel Castro Dausab

Inmate at Hardap Correctional Facility, Mariental

Quine Fenyeho

Government - Office of the Government Attorney, Windhoek



1 ‘(c) freedom to practice and religion and to manifest such practice.’

2 ‘(3) Nothing contained in this Article shall permit a derogation from or suspension of the fundamental rights or freedoms referred to in Articles 5, 6. 8, 9, 10, 12, 14, 15, 18, 19 and 21(1)(a), (b), (c) and (e) hereof, or the denial of access by any persons to legal practitioners or a Court of law.’

3 Regulation made in terms of Correctional Services Act: Namibian Correctional Service Regulations Government Notice 331 of 2013 (GG 5365) came into force on date of publication: 18 December 2013.


4 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984).

5 1993 World Health Organisation: WHO guide to essentials in prison health at 7.

6 Section 23(3) of the Act.

7 Section 24(1)(a) of the Act.

8 The correct terminology appears to be radioallergosorbent test (RAST).

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