Durban - A permanent stay of prosecution has been given to four surgeons and two Netcare clinic staff implicated in the “cash for kidneys scandal”.
On Friday morning, Durban High Court acting Judge Anton Troskie ordered a permanent stay, saying that in
his view this was the “only reasonable conclusion”.
He also ordered the respondent, the deputy director of public prosecutions, to pay the costs of the application.
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, had been charged with involvement in 90 illegal kidney transplant operations.
It was alleged that poor Brazilians sold their kidneys to wealthy Israeli patients in exchange for cash between 2001 and 2003, in contravention of the Human Tissue Act.
In 2010 Netcare KwaZulu-Natal pleaded guilty and paid a R4 million fine and agreed to a R3.8m confiscation order.
In the same year, former nephrologist, Jeff Kallmeyer, now living in Canada, admitted to 90 counts of contravening the act and paid a R150 000 admission-of-guilt fine.
Hebrew interpreter, Samuel Ziegler, paid a fine of R50 000 and was given a suspended sentence of five years for his role in the deals.
Speaking after the order was handed down today, the doctors’ attorney, Altus van Rensburg, said the doctors were not in court today as they were in theatre and Christopher was in the United Kingdom.
Van Rensburg referred to this case as the “medical trial of the century”.
He was thrilled for his clients, saying this had been a long road for them. “I’m glad that it’s reached, hopefully, the end.”
Van Rensburg managed to telephone doctors Haffejee and Naidoo who both expressed their relief and happiness.
“They have been optimistic from day one,” he said.
Advocate Robin Palmer, who acted for the State, said the only option for the State was to take this judgment on appeal.
He said this would be considered once the State had read the judgment.
Last month the doctors sought a permanent stay of prosecution, arguing there had been an unreasonable delay in prosecution, unfair discrimination, and that they had suffered personal and trial prejudice.
Senior advocate, Jean Marais, acting for the four surgeons, had argued that according to the constitution every person had a right to a fair trial, including the right to a public trial, after being charged.
However, he felt there was overwhelming argument that this trial would not be a fair one. He said a surgeon’s time had a profound value and should not become a “play thing” of the State on society.
Referring to unreasonable delays, he said the surgeons were arrested in 2005, and the trial date was set in 2006. But a month later the charges were withdrawn. In 2010 they were again summonsed. Marais argued that the surgeons were robbed of several years of their lives and were “emotionally scarred” over this period.
“There’s no urgency on the State’s part,” he had said.
“The charges aren’t serious, and if convicted they would probably face a fine of R150 000.”
Senior advocate, Jeff Hewitt, representing Dickson and Azor, said his clients’ alleged involvement was at a much lower level compared to the others.
He argued that Dickson was still being prosecuted because the State did not want to shift the blame on to Azor.
“She’s offended at this because (Azor) has done nothing wrong so it would be impossible to blame her.”
Dickson, he argued, was employed as a bookkeeper and therefore had no jurisdiction in the nursing of patients. He said Azor was brought in as Dickson needed help with administration.
“The donors and recipients were kept in a separate building to where they were based and their contact with the doctors involved in the transplants was limited.”
Palmer had argued that the six accused were attempting a “back-door” judicial review of the decision to prosecute them. He also said, in deciding to prosecute this matter, all relevant criteria were taken into account, including the need for general deterrence.
Internationally no other comprehensive prosecution of this type had been instituted, Palmer said.
“In addition, the conviction of the corporate owner, a private hospital, Netcare KwaZulu-Natal trading as St Augustine’s Hospital, is a world first,” he argued.
“Nobody is above the law; it is a crucial factor that no organ trafficking of any kind could succeed if there were not surgeons willing to participate in such schemes.”
“With (Dickson and Azor), the State alleges they were instrumental in processing the illegal suppliers of kidneys in circumstances where they must have known this to be illegal.” - Daily News