The six face charges of fraud, forgery, assault with intent to do grievous bodily harm and contravening the Human Tissues Act.
The charges relate to 109 illegal kidney transplants that took place at St Augustine’s Hospital in Durban between June 2001 and November 2003.
The lid on the scam, set up by Israeli organ broker Illan Perry, was lifted after one of the organ sellers lost his nerve and fled the hospital. He, 10 sellers and two runners were then arrested.
The latest move comes after attempts to strike a plea bargain between the six and the state fell through.
The other accused, including Netcare, have all struck deals and have been slapped with fines, avoiding jail time.
The six all argue that they were assured by Netcare management that the transplants were legal and all proper checks to prevent organ trading had been carried out.
They argue that Netcare, which paid a R7m admission-of-guilt fine after striking a plea bargain agreement with the prosecution, was responsible for all the vetting of donors and recipients, and had purposely misled them.
Surgeons John Robbs, Ariff Haffejee, Neil Christopher and Mahadev Naidoo, and former transplant unit staff Lindy Dickson and Melanie Azor also claim malicious and selective prosecution, arguing that doctors who carried out illegal transplants for Netcare in Johannesburg and Cape Town have not been prosecuted.
They also argue that the state has dragged out the case since 2004, when they were first arrested, and that the damage to their reputations and businesses is so extensive the case should be thrown out.
On 1 June the KwaZulu-Natal High Court will set a date for their application to be heard – likely in September or October.
The two applications are likely to be heard as one matter.
The State alleges that the transplant laws were contravened because both donors and recipients made false assertions that they were related and because donors were paid for their kidneys.
In 2010 Netcare KwaZulu-Natal pleaded guilty and paid a R4m fine and agreed to a R3.8m confiscation order.
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 while Hebrew interpreter Samuel Ziegler paid a fine of R50 000.
In court papers, Robbs said he and his colleagues could easily have paid an admission-of-guilt fine like Netcare and the other accused, but refused to do so because they were not guilty and wanted to defend their reputations.
Robbs added that the witness statements provided by the prosecution did not support the State’s claims that the six knew what was going on.
“The witnesses stated that they did not discuss relationship or money with the surgeons, and mostly added either that they had been warned not to disclose this to anyone, including us, or that they felt no need to disclose this.’’
“The entire transplant programme was arranged, implemented and managed by Netcare.
“It was responsible for ensuring that all legislative requirements had been met and we, as outside surgeons, honestly believed, wrongly as it turned out, that all the consents had been obtained and all other requirements had been met.’’