Modack and his co-accused fail to have charges dropped

While underworld figure Nafiz Modack and co-accused wait to hear if they will be granted bail, the court on Tuesday dismissed an application by the defence that some of the charges against them be dropped.

After several delays, the bail hearing of Modack and his co-accused — Zane Kilian, Jacques Cronjé and police officer Ashley Tabisher — commenced last week on 24 June in the Blue Downs regional court.

Shortly into the much-anticipated bail hearing, the state opened a dispute asking the court to make a judgment on whether Modack’s defence has the right to reply after the state’s own response to its bail plea in court. 

State prosecutor Greg Wolmarans objected, arguing the defence was trying to use this as a “back door” to retrieve more information from the state on the charges against the accused before giving their own response. Modack has repeatedly since his arrest accused the state of withholding information to which he was entitled.

Judge Deon van der Spuy ruled, on the same day, that the defence did not have a right to further reply once it had submitted its arguments for bail.

“There must be finality,” he said. 

In another application, also brought last week, the defence requested that certain charges against Modack, Kilian, Cronjé and Tabisher be dismissed.

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 (Poca).

The applicants’ defence argued the state had no authority, in the form of a certificate signed by the National Prosecuting Authority, to arrest the accused on charges such as contravening the Act.  

Modack’s legal representative, Dirk Uys, told the court the “lead prosecutor [Blaine] Lazarus has confirmed it by letting the cat out of the bag”, when he made an “unguarded statement” saying they do not yet have an authorisation for the accused and, therefore, “charges of Poca must be disregarded”. 

However, the state maintained that authorisation need be submitted only when the trial proceedings of the accused begin. 

Wolmarans, drawing support from two Supreme Court of Appeal cases, said the court was clear on this point.

He quoted: “Someone is only to be charged when the indictment is put and he or she is asked to plead”, adding “this particular requirement for the authorisation is a procedural one that must be met simply before plea”. 

Van der Spuy then struck down the application by the defence and said the charges would be put to the accused when they plead at trial.

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

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