Modack wants to learn how the State has linked him to co-conspirators, Janick Adonis and Amaal Jantjies, who are also accused of being part of the plot to assassinate Anti-Gang Unit (AGU) detective, Lieutenant-Colonel Charl Kinnear.

This is contained in a 21-page document from Modack handed in by his counsel, advocate Dirk Uys, at the Blue Downs Regional Court on Friday, 28 May requesting access to information pertaining to the State’s case.

Modack, co-accused Zane Kilian, Jacques Cronje, Ricardo Morgan (who is out on R50,000 bail), and AGU member Sergeant Ashley Tabisher briefly appeared before Magistrate Deon van der Spuy.

Nafiz Modack at the Cape Town Magistrates’ Court on 3 May 2021 in Cape Town. (Photo: Gallo Images / Brenton Geach)

The date for their bail application hearing was due to be finalised by the court, but instead arguments by Van der Spuy centred on the request for information which he said would enable the proper preparation of a bail application.

The request for information relates to the combined indictment containing 62-charges against Modack, Kilian, Cronje, Morgan, Tabisher, Janick Adonis and Amaal Jantjies. 

These charges include the five attempts to murder Kinnear in November 2019, his assassination on 18 September 2020, the attempted murder of criminal laywer William Booth on 9 April 2020, as well as contraventions of the Prevention of Organised Crime and Electronic Communications and Transactions acts, money laundering, and corruption.

It is clear from the arguments that legal teams for Modack, Kilian and Cronje are unhappy with the information that has been made available.

The State argued that providing evidence to the defence would be tantamount to revealing its “trump cards”, which included sensitive information relating to the investigation, the names of witnesses, and how the prosecution acquired the information against their clients.

Nafiz Modack accused of murdering Lieutenant-Colonel Charl Kinnear appeared with Zane Kilian and Jacques Cronje on a host of charges in the Blue Downs Court on Friday 14 May. (Photo: Vincent Cruywgen)

The prosecutor, Greg Wolmarans, in his opening remarks, said the State was open-minded about the request, but the information being sought related to the entire investigation.

“There are a number of investigators involved in this matter. We all sat down together and concluded that the release of information may jeopardise the investigation, place witnesses in danger, and in this case more charges will be added,” he said, adding that requests for information from the accused’s counsel came “in drip and drabs”. 

On Monday, 24 May, Modack placed on record a document and handed in an unsigned affidavit.

However, on Friday, a second document from Modack requesting information was handed in by Uys. 

The State, on the other hand, had not had time to peruse the document to file replying documents.

Kilian, whose bail appeal in the Kinnear murder charge was dismissed in the Western Cape High Court on Monday, 24 May, also filed documents requesting access to information on Thursday, 27 May. 

CAPE TOWN, SOUTH AFRICA – MAY 07: Zane Kilian appears at Cape Town Magistrate’s Co_1urt on May 07, 2021 in Cape Town, South Africa. Zane Kilian is implicated in the murder of Lt Col Charl Kinnear and the attempted hit on lawyer William Booth. (Photo by Gallo Images/Brenton Geach)

Despite his setback in the High Court, Kilian is also applying for bail in the Blue Downs Regional Court.

Wolmarans said: “The State needs a reasonable time to respond to the request for information from the different counsel. In all fairness, this is not something to be done in the corridors of a court.”

The request “entails the disclosure of the whole document as it stands now” and the matter could only be settled by the court hearing a full interlocutory application.

The court, Wolmarans said, had to make a ruling on what information should or not made available to counsel for the accused.

Elaborating on Modack’s request, Uys told the court his client wanted the State to specify the 66 places at which Modack had allegedly directed the operations and activities of an enterprise.

In addition Modack also wanted the personal particulars of every single person “known to the State who conducted or participated in the conduct of the enterprise affairs during the period October to September 2019”.

The same information is sought in respect of the racketeering charges in the combined indictment. 

Modack wants full particulars of the five occasions on which members of the Junky Funky Kids conspired to commit murder as well as the attempted murder attempts on the life of Kinnear in November 2019.

“What acts of conspiracy is Modack alleged to have committed when he allegedly conspired with Adonis, Jantjies and AB to murder Kinnear on 16 and 17 November?”

Uys asked what “physical act or acts Modack is alleged to have committed when he attempted to kill Kinnear on 23 November 2019, Nicolette Kinnear on 22 November 2019 and Carlisle Kinnear on 23 November 2019?”.

On the murder of Kinnear on 18 September 2020, Modack demanded that the State hand over informatoin on “what actual phyiscal act or acts he is alleged to have committed when he allegedly killed Kinnear. In addition, he wants information showing what physical act or acts caused Kinnear’s death”.

Modack also wanted information as to where and when exactly he alleged to have conspired with Cronje to murder Booth on 9 April 2020.

On the contravention of the Electronic Communications and Transactions Act, Uys argued that the prosecution needed to supply information as to where in the country these offences were committed.

“There is no mention of particular places where my client is alleged to have conspired to commit the crimes he is accused of,” Uys contended.

Uys suggested to the court that should the State refuse to furnish the information, the court should compel it to do so.

Advocate Bruce Hendricks, for Tabisher, again informed the court that he was ready to commence with a bail application and said “a further delay is an abortion of justice”.

In view of the fact that Tabisher was facing schedule five offences, Hendricks suggested that his client’s bail application be separated from his co-accused.

Tabisher had no previous convictions and was the father of a child.

The count of corruption against Tabisher emanated from evidence during bail proceedings of Amaal Jantjies in the hand grenade matter in Parow Regional Court that he had agreed to a R10,000 fee to keep Modack abreast of all intended raids at his house.

Eric Ntabazalila, provincial spokesperson for the National Prosecuting Authority (NPA) said: “We furnished the defence with some documents as promised on Tuesday afternoon. There were no questions or anything forthcoming from the defence. Last night, Thursday, 27 May, we received a document from one of the defence lawyers around 7.30pm.”

On Friday morning the NPA had received another document from Uys which had arrived “late”.

In terms of the law it is up to the NPA to provide defence counsels with some of the information which could assist in the application for bail.

But counsel for the accused, he said, seemed “to want to get the whole docket, which they are not entitled to at this stage”.

It is for that reason that the NPA has asked for an interlocutory application where the matter will be ventilated in court, for it to rule on what the defence is entitled to.

On the request for the separation of the Tasbisher bail application Ntabazalila said: “His defence has indicated that they are going to approach the Judge President of the Regional Court and ask for a separate bail application from the other accused. We will wait for when they do that and will see how we go about it.”

Modack, Kilian, Cronje, Tabisher and Morgan are back in the Blue Downs Regional court on Wednesday, 9 June, when the interlocutory application will be heard. DM/MC