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Four top surgeons came out fighting in a Durban High Court application hearing to have charges relating to an international cash-for-kidneys scandal against them quashed yesterday.
The surgeons, John Robbs, Ariff Haffejee, Neil Christopher and Mahadev Naidoo, and former St Augustine’s Hospital transplant unit staff members Lindy Dickson and Melanie Azor, now doctors, have asked for a permanent stay of prosecution.
They have been charged with assisting in 90 illegal kidney transplant operations in contravention of the Human Tissues Act between 2001 and 2003 when poor Brazilians allegedly sold their kidneys to wealthy Israeli patients in exchange for cash.
Acting for the surgeons, advocate Jean Marais, SC, told the court that the case was an “open and shut matter”. Because the prosecution had been “unreasonably delayed” in taking the matter to trial, the doctors had been “unfairly discriminated against” and had suffered “irreparable personal and trial prejudice”.
He argued before Acting Judge Antonie Troskie that the constitution granted the accused “a right to a fair trial, which includes the right… to have their trial begin and conclude without unreasonable delay”.
He said that the surgeons had not been involved in implementing the transplant programme, had not known whether the transplants were related and had only been engaged to render surgical services to the hospital.
“The State’s case is weaker than weak and the delay was entirely unreasonable, with the result that they can no longer properly defend themselves in circumstances where the State will enjoy an immensely unfair advantage,” said Marais.
He said the charges were not serious like murder or sexual assault and the possible mastermind, Jeff Kallmeyer, had paid an admission of guilt fine of R150 000, less than R2 000 a count.
Advocate Jeff Hewitt, SC, appearing for Dickson and Azor, said that the State’s case was founded largely on “conjecture and supposition”. His clients had been employed in administrative roles and had not benefited financially. He said that Netcare KZN had paid a R4 million admission-of-guilt fine and that the charges against Netcare Limited, the employers of Dickson and Azor, had been withdrawn, yet his clients had been charged.
However, advocate Robin Palmer said the application was a backdoor attempt for a judicial review of the decision to prosecute the doctors and staff.
The delay in the prosecution had been the result of factors including resource constraints, the complexity of the case and a decision to prosecute the matter as a syndicate. Marais and Hewitt argued that they had not been charged as syndicate members.
Palmer said it was not up to the court to decide whether the case was weak but to decide whether there had been trial prejudice. He said the right to a fair trail also required fairness to the public and the reasons for the delay had to be carefully considered. Acting Judge Troskie reserved judgment. -Saturday Star