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“I feel totally vindicated.”
This was the reaction yesterday of cash-for-kidneys accused Durban surgeon John Robbs, who said he was “completely relieved” and would celebrate his high court victory, an early Christmas present, with family last night ahead of his daughter’s wedding today.
Robbs, together with his colleagues Ariff Haffejee, Mahadev Naidoo, Neil Christopher, Lindy Dickson and Melanie Azor, who were implicated in an international cash-for-kidneys scandal, were granted a permanent stay of prosecution in the Durban High Court yesterday.
“My prayer was always ‘thy will be done’ because I always felt that if there was any justice it would come out this way,” Robbs said.
Haffejee said he was “delighted” with the outcome. “We have travelled a very long and difficult journey and I am very glad it is over.”
Naidoo said he was very relieved. “It has been a major burden on our shoulders for the past seven or eight years and it comes with a lot of relief and also a lot of anger because it should have been sorted out a long time ago and should never have come to this,” Naidoo said.
Acting Judge Antonie Troskie granted the permanent stay, finding that their right to a fair trial had been infringed and that they had suffered trial prejudice and personal prejudice as a result of the delay. He ordered the respondent, the deputy director of Public Prosecutions, to pay the costs of the application.
The surgeons brought the application in December last year in which they maintained they did not have any knowledge that poor Brazilians had been paid by wealthy, unrelated, Israelis for their kidneys in contravention of the Human Tissues Act, in 90 illegal kidney transplant operations at St Augustine’s Hospital between 2001 and 2003. In total, there were 224 kidney transplants performed in Durban and at Joburg’s Garden City Clinic and the Christiaan Barnard Memorial Hospital in Cape Town.
The surgeons and former St Augustine’s Hospital transplant unit staff members Dickson and Azor had been charged for their involvement in the Durban operations, but no charges were brought against doctors or staff in the other cities. They faced charges including fraud and contraventions of the Human Tissues Act for performing “illegal” kidney transplant operations.
“There is a huge feeling of relief within me. I believe justice has been served and I can now get on with what’s left of my life without the sword of Damocles hanging over my head. But I can’t say that I am overjoyed and happy because I am still too angry,” Robbs said.
In court papers the surgeons had denied any involvement in the screening and administration of the foreign patients, saying that documents provided before the operations appeared in order.
But in 2010 Netcare KwaZulu-Natal pleaded guilty and paid a R4 million fine and agreed to a R3.8 million confiscation order, while nephrologist Jeff Kallmeyer, who has since emigrated to Canada, paid a R150 000 admission of guilt fine.
Granting the stay acting Judge Antonie Troskie said it was “difficult to come to any conclusion other than that there has been an inordinate delay in… driving it to its conclusion”. He said it was not clear what caused the delay.
The state argued that the time taken was “fully justified in law” and that a decision to prosecute an entire international syndicate had never been done and had contributed to the delay. He said there had been a “singular lack of appreciation” of the need to finalise the case without undue delay and an “apparent disregard” of their right to a fair trial.
“I cannot accept that the delay was justified. The reasons are not convincing,” Troskie said.
Troskie said the delay had resulted in the absence of key witnesses some having died and others being unavailable; documentary evidence, which had not been persevered or secured timeously; the impaired ability of witnesses and the doctors to recall exact conversations and events and the absence of Kallmeyer – who apparently has Alzheimers – and his inability to testify to the doctors’ knowledge or lack thereof regarding the transplants.
State Advocate Robin Palmer said the state would study the judgment before considering an appeal.