Modack defence tries ‘back door’ to pull evidence from state

Alleged crime boss Nafiz Modack has asserted that the investigating team handling the state’s case against him is guilty of a gross dereliction of duty. 

Modack claims that the team investigating the assassination of anti-gang unit cop Lieutenant Colonel Charl Kinnear in September 2020 told him months before his arrest that they have “irrefutable evidence” that he is responsible for Kinnear’s murder.

In his affidavit Modack questions the state’s case against him because the police, despite claiming they have evidence against him, did not arrest him until months later, in April this year. 

Modack handed in his affidavit as the bail hearing for him and his co-accused, Zane Kilian, Jacques Cronjé, and police officer Ashley Tabisher, started on Thursday in the Blue Downs regional court.

Modack is facing schedule 6 offences and his co-accused are facing schedule 5 offences. 

According to the state’s indictment, the accused face charges including conspiracy to commit murder, murder, illegal cellphone tracking, racketeering, kidnapping, intimidation, corruption, gang-related extortion and contravening the Prevention of Organised Crime Act.

In his affidavit, Modack further claims he is “severely prejudiced” by his “lack of knowledge” of the charges the state brought against him. 

Modack’s defence, together with two of the co-accused, Kilian and Cronjé, previously demanded the state to provide sufficient information for them to prepare bail applications. 

But, during an interlocutory hearing Modack’s defence lawyer, Dirk Uys, said: “Although I am not satisfied with what I have been given, I am in a position to proceed with the bail application,” and withdrew his request for further particulars. 

State prosecutor Greg Wolmarans described the defence’s “closing but not quite closing” its applicant’s case as “ambivalent”, and demanded clarity on the right to reply once the defence has closed its case. 

The state upholds that once it has responded to the applicant the defence has no right to reply. 

Wolmarans cautioned the court to not be subverted by strategies usually used by schedule 5 and 6 offenders, arguing the essence of the defence’s affidavit “does not deal with the merits of the case”. 

He said that after the state has “shown its hand” [has stated its case in court], “then only does the applicant craft his position, especially in so far as the merits [of the case]”. 

Wolmarans said if this “back door” is opened, it will set a precedent for schedule 5 and 6 offenders — that they can sit back and listen to the state’s case and only reply afterwards. 

Judge Deon van der Spuy ruled the defence must close their case and bring their full application to the court. “There must be finality,”  he said. 

The court adjourned, with bail proceedings to continue on 29 June.

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Eunice Stoltz
Eunice Stoltz is a general news reporter at the Mail & Guardian.

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