THE PAYMENT FOR AN ORGAN AND THE ADMISSION OF GUILT BY A SOUTH AFRICAN HOSPITAL The State v Netcare Kwa-Zulu Natal (Pty) Ltd – Agreement in terms of section 105A(1) of the Criminal Procedure Act 51 of 1977, Netcare Kwa-Zulu (Pty) Ltd and the State, Commer

Magda Slabbert Magda Slabbert,Hennie Oosthuizen Hennie Oosthuizen

doi:10.17159/obiter.v32i3.12248

Abstract

As the first of its kind in plea bargaining, a South African private hospital group pleaded guilty on charges of trafficking in human organs. The Commercial Crimes Court of the Kwa-Zulu Regional Court (a Specialised Unit of the National Prosecuting Authority of South Africa) made an order in November 2010 in terms of which Netcare Kwa-Zulu (Pty) Ltd (Netcare) entered into a plea and sentence agreement with the state whereby Netcare pleaded guilty to 109 counts related to charges of illegal kidney transplantoperations. Charged with the St Augustine’s Private Hospital in Durban were the parent company Netcare (Pty) Ltd, its Chief Executive Officer, Richard Friedland, and eight others: four transplant doctors, a nephrologist, two transplant administrative co-ordinators, and a translator. The admission of guilt by the group relates to illegal kidney transplants which took place between June 2001 and November 2003 whereby Israeli patients in need of kidney transplants were brought to South Africa for such transplants to be performed at St Augustine’s Private Hospital. The kidneys were bought from Romanian and Brazilian citizens who were willing to sell their organs.

Highlights

As the first of its kind in plea bargaining, a South African private hospital group pleaded guilty on charges of trafficking in human organs
The Commercial Crimes Court of the Kwa-Zulu Regional Court made an order in November 2010 in terms of which Netcare Kwa-Zulu (Pty) Ltd (Netcare) entered into a plea and sentence agreement with the state whereby Netcare pleaded guilty to 109 counts related to charges of illegal kidney transplant operations
The admission of guilt by the group relates to illegal kidney transplants which took place between June 2001 and November 2003 whereby Israeli patients in need of kidney transplants were brought to South Africa for such transplants to be performed at St Augustine’s Private Hospital

Summary

Introduction

As the first of its kind in plea bargaining, a South African private hospital group pleaded guilty on charges of trafficking in human organs. The Commercial Crimes Court of the Kwa-Zulu Regional Court (a Specialised Unit of the National Prosecuting Authority of South Africa) made an order in November 2010 in terms of which Netcare Kwa-Zulu (Pty) Ltd (Netcare) entered into a plea and sentence agreement with the state whereby Netcare pleaded guilty to 109 counts related to charges of illegal kidney transplant operations. The admission of guilt by the group relates to illegal kidney transplants which took place between June 2001 and November 2003 whereby Israeli patients in need of kidney transplants were brought to South Africa for such transplants to be performed at St Augustine’s Private Hospital. What is the purpose of plea bargaining and why is it used in practice? Bekker and others state that the main object thereof is to lighten the burden which the accused has to bear in the sense that the accused faces less serious implications as far as sentence is concerned, and to spare the state the time and expense involved in a lengthy criminal trial with all of its attendant evidentiary risks (Bekker, Joubert, Geldenhuys, Swanepoel, Terblanche and Van der Merwe Criminal Procedure Handbook 9ed (2009) 221)

The facts of the Netcare case

Assessment of the case

Conclusion