Trafficking in persons

Other Crimes

State v. Netcare Kwa-Zulu Limited

Fact Summary

In November 2010, under the authority of the South African National Director of Public Prosecution, Netcare Kwa-Zulu (Pty) Limited entered into an agreement whereby it pleaded guilty to 102 counts related to charges stemming from having allowed its ‘employees and facilities to be used to conduct … illegal kidney transplant operations’. In addition to Netcare, a number of other charges were laid against the St Augustine's Hospital, located in Durban, South Africa, the CEO of Netcare, Richard Friedland, and eight others: four transplant doctors, a nephrologist, two transplant administrative coordinators, and an interpreter. The admission of guilt related to 109 illegal kidney transplant operations that took place between June 2001 and November 2003. The scheme involved Israeli citizens in need of kidney transplants who would be brought to South Africa for transplants performed at St Augustine's Hospital.

While the kidneys supplied originally came from Israeli citizens, ‘later Romanian and Brazilian citizens were recruited as their kidneys were obtainable at a much lower cost’. The broker, Ilan Perry, was the individual who was in charge of the recruitment of both kidney suppliers and recipients and was not South African and has not been charged. He set a fee of between USD 100,000 and USD 120,000 for recipients and paid the original suppliers of kidneys USD 20,000. However, later on in the scheme, Romanians and Brazilians received on average of USD 6,000.

Ilan Perry used recruiters to source individuals ready to supply kidneys; two of these, Captain Ivan Da Silva and Gaby Tauber, had been imprisoned in Brazil for their roles in the affair. Blood screening of prospective kidney suppliers was done in-country and again in South Africa in an attempt to ‘ensure sufficient compatibility with prospective recipients’; those deemed suitable were ‘accommodated and chaperoned’ and ‘given documents to sign falsely indicating that they were related to each other’. This fraudulent activity was meant to circumvent the requirement to gain outside approval, via a Ministerial Committee, for transplants of unrelated principals. While Netcare Kwa-Zulu (Pty) Limited was paid up-front for its participation in the illegal kidney transplants, the people supplying the healthy kidneys were paid after the fact and in cash.

The charges to which Netcare Kwa-Zulu (Pty) Limited pleaded guilty were laid under the South African Human Tissue Act 1983 and the Prevention of Organised Crime Act 1998. It might be mentioned that the company escaped charges which had been leveled at the other accused, including fraud, forgery, and assault with intent to do grievous bodily harm (for operations without informed consent). The Human Tissue Act 1983 prohibited the transplantation of the tissue of minors into another living person; requiring that written consent be provided; and that no purchase of tissue, such as kidneys, was allowed. Further, there existed a Ministerial Policy of the Department of Health which set out, inter alia, that:

“Donor organs must be used primarily for South African citizens and permanent residents. Written consent must be obtained from the Minister of Health before any person who is not a South African citizen or permanent resident is accepted onto a transplantation programme.”

The Ministerial policy also established that a Ministerial Committee had to approve applications for transplantation of unrelated living donors so as ‘to reduce the possibility of abuse’.

The prosecutor later argued that the company and the other accused must have been aware of the law and policy regarding transplants from living donors, and that they had to try to find a way to portray ostensible compliance with the current policy and legislation. They therefore created the pretence that the kidney suppliers were related to the recipients.

The first charge--counts 1 to 5--to which Netcare Kwa-Zulu (Pty) Limited pleaded guilty related to the use of five minors as organ suppliers in violation of the Human Tissue Act 1983. The employees of St Augustine's Hospital were recognised, in the convoluted Charge Sheet of the Prosecutor, to be ‘acting on behalf of the accused company and were about the exercised of their powers and the performance of their duties as employees of the company furthering or endeavouring to further the interests of the company’, in carrying out these illegal kidney transplants. Counts 6 to 10 constituted the second charge and related to receiving payment for the kidney transplants emanating from the five minors. It might be mentioned that Netcare Kwa-Zulu (Pty) Limited received payments from the broker and it then disbursed payment ‘to the other accused and service providers; including the surgeons for their services’. The third charge, consisting of counts 11 through 102, related to contravention of the Prevention of Organised Crime Act 1998. In regard to the 102 transplant operations that did not include minors, the company pleaded guilty to its employees having received money, the proceeds of an unlawful activity; while Netcare Kwa-Zulu (Pty) Limited admitted that ‘in the circumstances’, it knew ‘that the aforementioned property formed part of the proceeds of unlawful activities’.

In the Agreement between Netcare Kwa-Zulu (Pty) Limited and the State, the State recognised its own legitimate interest ‘in overseeing the control over transplant of human tissues […] the interests of the medical profession and the public at large’. Where the public interest was concerned, the Agreement noted:

“that a company, such as the accused company, guilty of an offence such as this, should be convicted and punished and more particularly, that that conviction and punishment should take place in open court for society as a whole to come to know and understand that the prosecuting authorities and the Department of Health will not tolerate breaches of the code of conduct and standards of ethics and compliance with the law required in a civilised society.”

The Agreement then set out the penalty imposed: a confiscation order of ZAR 3,800,000 (approximately USD 466,839) amounting to the benefit the company derived from the offences, plus a sentence of ZAR 4,020,000 (approximately USD 493,875) amounting to fines for each of the counts to which Netcare Kwa-Zulu (Pty) Limited pleaded guilty.

 

Commentary and Significant Features

The agreement, whereby Netcare Kwa-Zulu (Pty) Limited and St Augustine's Hospital admitted guilt to having knowingly allowed its employees and facilities to be used for what amounted to the trafficking of persons for their organs, constituted one of the first such cases to make its way before a court of law. In so doing, the agreement implicated and effectively prosecuted the hospital involved. The case did not add to the international jurisprudence, as South Africa was not party to the UN Trafficking in Persons Protocol when the material facts took place. However, it did speak to the legitimate inclusion of provisions dealing with the trafficking in persons for their organs within the definition of trafficking of persons found in article 3(a) the Protocol.

Author:
School of Law, Queen’s University

Keywords

Acts:
Recruitment
Transportation
Means:
Abuse of power or a position of vulnerability
Purpose of Exploitation:
Removal of organs
Form of Trafficking:
Transnational
Sector in which exploitation takes place:
Organ/tissue removal

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• legal persons (corporations)

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

South Africa

Israel

Brazil

Romania

Gender considerations

Details

• Gender considerations

Victims / Plaintiffs in the first instance

Several Israeli citizens, Romanian and Brazilian citizens

Defendants / Respondents in the first instance

Defendant:
Netcare Kwa-Zulu
Defendant:
St Augustine’s Hospital
Defendant:
Richard Friedland
Gender:
Male
Defendant:
Samuel Ziegler
Gender:
Male
Defendant:
Jeffrey Kallmeyer
Gender:
Male
Defendant:
Ariff Haffejee
Gender:
Male
Defendant:
John Robbs
Gender:
Male
Defendant:
Neil Christopher
Gender:
Male
Defendant:
Mahadev Naidoo
Gender:
Male
Defendant:
Lindy Dickson
Gender:
Female
Defendant:
Melanie Azor
Gender:
Female

Sources / Citations

Jean Allain, Trafficking of persons for the removal of organs and the admission of guilt of a South African hospital, Medical Law Review (2011), 19 (1): 117-122, Oxford University Press.

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