Alleged underworld figure Nafiz Modack has queried why, if the police had “almost irrefutable” evidence linking him to the murder of Anti-Gang Unit member Lieutenant–Colonel Charl Kinnear, they waited so long before arresting him. 

Modack’s senior counsel, advocate Dirk Uys handed in a third replying affidavit during Modack’s bail application in the Blue Downs Regional Court on Wednesday.

Modack and debt collector Zane Kilian are the two main accused in the assassination of Kinnear on 18 September 2020. The State contends the murder was premeditated. This means that Modack has to place facts before the court proving that exceptional circumstances exist which are in the interest of justice to permit his release on bail.

Modack’s bone of contention is that following his arrest on 29 April 2021 members of the investigating team indicated “that for months before his arrest they were in possession of almost irrefutable evidence that he was responsible for the murder”. 

He further contends that before his arrest the investigating team claimed to have acquired evidence proving that he was not only guilty of the murder of Kinnear but also of seven counts of attempted murder, one count of corruption, one count of extortion, thousands of cases relating to intercepting electronic communications, several counts of racketeering and one count of gangsterim under the Prevention of Organised Crime Act (Poca).

The police, he argued, inexplicably did not arrest him for months, when with the evidence allegedly at their disposal it was their duty to arrest him.

State prosecutor Blaine Lazarus told magistrate Deon van der Spuy: “The State will wait and see whether the legal representatives of the other three accused will respond to Modack’s affidavit. Only then will the State file replying affidavits.”

Lazarus has also told the court that Kilian was allegedly paid R96,500 by a company that appears to be linked to Modack.

What Modack appears to have lost sight of was the investigation into the failed attempts on the life of Kinnear in 2019 and his death in September 2020 was an ongoing process and the State could not have arrested him during that period. 

Evidence from Warrant Officer Trevor Shaw showed that Modack allegedly orchestrated the attempts on Kinnear’s life in November 2019.

It is alleged that he conspired with co-accused Amaal Jantjies and alleged Junky Funky Kids gangster Janick Adonis to murder Kinnear in 2019.

More damning evidence against Modack was the WhatsApp messages and voice recordings played during the bail application of Jantjies in the Parow Regional Court. This portrayed an alleged criminal relationship existing between the trio.

Investigators were then able to connect the dots which led to Modack’s eventual arrest. The task team investigating the Kinnear murder and the attempts on his life also contend that AGU Sergeant Ashley Tabisher was allegedly persuaded by Jantjies to keep Modack inform about intended raids at his home. In return Tabisher was paid R10,000, the State contends.

Modack and Kilian also face a count of attempted murder relating to a failed attempt on the life of lawyer William Booth in April 2020. Here it is Modack’s argument that this matter has been finalised in the Cape Town Magistrates’ Court.

In April 2021 three alleged members of the Terrible West Siders, Kauthar Brown, Ebrahim Deare and Riyaad Gesant, entered a plea and sentencing agreement with the State in connection with the attempted murder of Booth.

Modack argues that not one of the trio implicated him in their plea explanation. Modack also refutes the gang-related charges he faces under Poca, arguing that he was never a member of a gang.

However, the affidavit by Shaw sets out why the court should not grant Modack bail.

Reasons include:

• Modack was aware that Kinnear was investigating him;
• Kinnear arrested Modack’s wife, Riana, on 31 October 2021;
• Modack allegedly conspired with Jantjies and Adonis to attack Kinnear at his house;
• Modack allegedly has several contacts with corrupt SAPS officials who could assist him to flee; and
• Should Modack be convicted of the charges he faces, he would be sentenced to life imprisonment.

Another point highlighted by Shaw is that most of the witnesses who have made affidavits and agreed to testify are known to Modack and their lives would be in danger should Modack be released on bail. 

The investigation is still ongoing and investigators indicated that once the bail applications of Modack, Kilian and Tabisher have been finalised, more arrests will follow. Co-accused Ricardo Morgan, facing a count of money laundering, is out on bail of R50,000, but has to attend court proceedings.

The four are back in the Blue Downs Regional Court on Tuesday, 14 December. Heads of arguments will be heard on Thursday, 30 December. DM/MC

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