Magistrate Deon van der Spuy’s dismissal of Nafiz Modack and Zane Kilian’s application last week was based on an Appeal Court ruling in the Selwyn de Vries case in September 2011.

The matter relates to a period in 2003 when British American Tobacco (BAT) was hit by a series of armed robberies. The thefts from hijacked BAT trucks were the brainchild of Selwyn de Vries, who was aided and abetted by his younger brother, Virgil de Vries. The pair, with 10 others, was slapped with various charges in the Western Cape High Court, including money laundering in contravention of the Prevention of Organised Crime Act (POCA).

When the matter was set down for trial on 1 August 2005, the prosecutor informed the court that she could not proceed as she was still awaiting the necessary written authority from the National Director of Public Prosecutions (NDPP) and a centralisation certificate under section 111 of the Criminal Procedure Act.

When the matter resumed on 15 August, the NDPP had granted the POCA certificate which was handed in without objection from the defence. De Vries was subsequently convicted under POCA.

Returning to the present trial, State prosecutor Greg Wolmarans contends that at this juncture the matter is purely a bail application, not a criminal trial, and therefore a POCA certificate is not a prerequisite right now. 

The State further argued that the certificate in question would play a more significant role at the plea trial in the Western Cape High Court. The State would submit the POCA certificate at that stage, he said.

Advocate Dirk Uys, appearing for Modack, was of the view that the De Vries ruling was not applicable in the matter being heard in the Blue Downs Regional Court.

“The Directorate of Public Prosecutions did not furnish a POCA certificate and… the State is duly without authority and therefore prosecution may therefore be unlawful,” he argued.

Affidavits for the purposes of bail for accused Modack, Kilian and former anti-gang unit sergeant Ashley Tabisher were presented to the court. 

With former bouncer Jacques Cronje and alleged accomplice Ricardo Morgan, the group faces more than 3,000 charges. They include the five attempts to kill anti-gang unit officer Lieutenant-Colonel Charl Kinnear in November 2019, his assassination on 18 September 2020, the failed hit on lawyer William Booth on 9 April 2020, extortion, corruption, contravention of the Electronic Communications Act and contravention of the POCA.

In papers, the State said that Kilian played a leading role in the execution of the plot that ended Kinnear’s life on 18 September 2020. He allegedly pinged Kinnear’s phone 2,408 times and provided others involved in the plot with the coordinates of Kinnear’s whereabouts.

The State has since determined that Kilian and Modack acted together and with common purpose, and hence charged Modack, along with Kilian, with Kinnear’s murder. They pair are also co-accused in the attempted murder of Booth.

A thwarted hand grenade attack on Kinnear’s house in Bishop Lavis in November 2019 was, according to the State, carried out by Amaal Jantjies and co-accused Janick Adonis. From electronic evidence gathered by investigators, it became apparent that Jantjies was instructed by Modack to “take out” Kinnear.

Papers in Jantjies’ failed bail bid in the Parow Regional Court also paint a grim picture of former cop Ashley Tabisher, who is alleged to have received R10,000 to keep Modack abreast of police raids to be carried out at his premises.

In his application, Modack said he was baffled by the attitude of the police. Prior to his arrest on 29 April 2021, he said, they let him stay on the streets while preparing to prosecute him. But their attitude had changed overnight, he added.

On the array of charges against him, Modack said: “I knew very little about the case against me besides the names in everyday language of the crime with which I was charged.

“I did not commit any of the offences on which I stand arraigned, and am therefore heavily handicapped by an almost total lack of knowledge of the facts surrounding the case against me. The total lack of knowledge makes it almost impossible for me to respond adequately to the allegations against me.”

Modack said he was acutely aware of a charge of premeditated murder against him and therefore burdened with an onus to show that exceptional circumstances exist which permit his release on bail.

Schedule 6 of the Criminal Procedure Act says the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence that satisfies the court that exceptional circumstances exist which in the interest of justice permit his release.

It was Modack’s submission that his release was indeed in the interest of justice and asked that the court order his release on bail on appropriate conditions.

Summarising his personal circumstances, Modack emphasised his involvement as a charity worker committed to fighting drug abuse among young people.

“My strict no-drugs policy has had the effect of limiting the sales of drugs by bouncers in the clubs, restricting the operations of drug dealers in this market,” Modack claimed.

Modack said: “It is my belief that the Hawks are charging me so long after the crimes with offences which were allegedly committed, not because they honestly believe that I committed the crimes, but simply to harass and intimidate.”

On the failed hit on Cape Town defence attorney William Booth, Modack said the Hawks had failed to inform the court that the matter had been solved months ago.

Three people, Kauthar Brown, Ebrahim Deare and Riyaad Gasant had pleaded guilty to charges of attempted murder. Brown was sentenced to three years’ house arrest, Deare to 10 years in prison and Gasant to five years behind bars.

None of them, Modack claims, implicated him in their plea explanations, adding that they claimed that someone else, a high-ranking gangster in prison, was behind the attempted murder.

On the assertions that he, with Kilian, pinged the phoned of Kinnear from March 2020 until 18 September 2020, Modack said: “Kilian, who is alleged to have fixed the whereabouts of Kinnear by pinging him so that he could be assassinated by whoever committed this murder, has emphatically denied under oath that he was acting on my instructions when he did so, and it would seem that he is the only person who knows if somebody employed him to ping Lieutenant-Colonel Kinnear and who that someone is.”

Modack also viewed allegations that he was involved with the Junky Funky Kids gang as “preposterous”. Modack said he intended pleading not guilty to all charges and was adamant that his release on bail would not jeopardise the function and objectives of the criminal justice system.

When it comes to getting bail, murder accused Kilian also has a mountain to climb. His bail application was denied by Bellville Regional Court magistrate Nonkosi Saba in March 2021.

His appeal in the Western Cape High Court on 24 May 2021 against that decision was dismissed by Judge Ashley Binns-Ward. 

“I consider that the magistrate was justified in finding that in the face of prima facie evidence pointing to a knowing involvement by the appellant in the murder of Colonel Kinnear, the appellant’s evidence in support of this bail application was riddled with improbabilities and untruths,” Binns-Ward’s ruling read.

In his new bail application in the Blue Downs court, Kilian says he had to sell his property in Springs to cover his legal fees, and that if released, he would work with his brother. He said he could afford to pay R10,000 bail.

Kilian also indicated that he had filed an application to seek special leave to appeal to the Supreme Court of Appeal against the first dismissal of his bail application.

“The murder charge is the only Schedule 6 count that I am charged with and this count is not before this court for consideration of my bail application. In respect of the remaining counts, it is only the count of participating in an enterprise that raises my bail application to a Schedule 5 application,” Kilian contends.

Kilian’s argument is that it is unclear how he was employed by, or associated with, the enterprise or what money or other considerations he received while employed by the enterprise.

“I was never part of an enterprise nor did I take part in the affairs of an enterprise. I am also not a member of a gang and my clean criminal record at the age of 39 is testimony thereto,” he said.

He also denies any involvement in the attempted murder of Booth.

On his association with State witness Bradley Goldblatt, Kilian said Goldblatt had given him the password that allowed him to have access to his [pinging] software.

This issue was previously heard during his failed bail attempt in the Kinnear matter and his subsequent failed appeal in the Western Cape High Court.

Goldblatt, in his statement, indicated that analysis of Kilian’s usage of the service provider ascertained that the appellant obtained photo verification reports in respect of Kinnear and his wife, and a vehicle asset inquiry on William Booth.

Analysis by Goldblatt on the location-based services, with regard to the data received on Kinnear and Booth, showed that the number of pings done on both individuals indicated a movement pattern, and the frequency and time of the pings began early in the morning and stopped after the shootings.

The State’s heads of argument will be heard on Tuesday, 13 July. DM/MC