An emotional Nafiz Modack appeared in the Western Cape high court on Friday 5 May for pre-trials connected to both his criminal trial and charges of VAT evasion — and told the court he would be applying for bail.

His mother, Ruwaida, who is one of the accused in the Sars case, which involves alleged VAT fraud of R46-million, hugged and kissed Modack as she exited the courtroom at the end of the pre-trial hearing.

Judge Nathan Erasmus had been appointed to manage the matter and get it ready for trial. However, he will retire later this year and also declared a conflict of interest in the criminal trial.

“The reason why I can’t preside over the criminal matter of Modack and 14 accused is that I have been an advocate to one of the witnesses in this matter, André Lincoln,” Judge Erasmus said.

Lincoln, retired Major-General at the Anti-Gang Unit (AGU), spearheaded investigations into the assassination of Lieutenant-Colonel Charl Kinnear on 18 September 2020 in front of the detective’s house, which Modack is charged with.

The state claims that Modack’s reign of terror ran from December 2017 until January 2021, and he faces over 3,100 charges including murder, attempted murder, conspiracy to commit murder, extortion, abduction, money laundering, fraud, racketeering, undermining the administration of justice, public violence, violation of the Prevention of Organised Crime Act (Poca) and unlawful interception of communications.

Modack’s co-accused on the indictment are former debt collector and rugby player Zane Kilian, Ziyaad Poole, Moegamat Toufeeq Brown, Riyaat Gesant, Fagmeed Kelly, Mario Petersen (all Terrible West Siders gang members), Jacques Cronjé, Petrus Visser, Junky Funky Kids gang member Janick Adonis, Amaal Jantjies, former Anti-Gang Unit (AGU) Sergeant Ashley Tabisher, Yaaseen Modack, Mogamat Adiel Mukadam and Ricardo Anthony Morgan.

Zane Kilian ( Front second right) sits next to Nafiz Modack Front left) in dock at the Cape Town High court. Modack appeared with 14 co-accused on 5 May 2023. Photo: Daily Maverick

Judge Erasmus emphasised the importance of the accused in both the criminal and Sars matters being represented by attorneys, who can give the court an undertaking that their legal fees have been sorted out, and that if the clients can no longer afford their rates, they will continue to represent their clients on legal aid rates.

He recommended that all the accused complete application forms with SA Legal Aid to make an assessment as to whether or not they qualify.

The only representative who gave an undertaking was advocate Bruce Hendrickse, representing alleged corrupt AGU Sergeant Ashley Tabisher, who told the court that “this long delay in getting this matter finally to trial has placed my client and myself in a very difficult position. 

“I have instructed my client that I will continue on a legal aid fee once the coffers have run dry,” Hendricks said.

Modack was still lawyerless in both the criminal and the Sars matters on Friday morning, citing lawyers who were unwilling to drive two hours to Helderstroom Correctional Centre near Caledon. As a result, he is making an urgent application to the Western Cape high court to be transferred to a jail closer to the court where consultations can happen.

Nafiz Modack’s mother Ruwaida, wipes her lipstick off his cheek. Modak, his mother and brother Yaaseen (right) appeared with others at the Cape Town High court on 5 May 2023. Photo: Daily Maverick

Modack was interrupted by Judge Erasmus who said: “Malmesbury (prison) don’t want you because of a cell phone you had in your possession,” to which Modack mumbled, “they brought into prison”.

Modack also told the court that based on the fact that the gun licence charge he faced was withdrawn against him in Kempton Park, he would bring a new bail application based on new facts.

Modack has been incarcerated since his arrest after a high-speed car chase in Cape Town in April 2021. Bail for him and his co-accused was denied in January 2022 in the Blue Downs Regional Court. Modack and co-accused Cronjé and Tabisher appealed the refused bail applications. Their appeal was dismissed by Western Cape high court Judge Mark Sher on 3 March 2023.

Co-accused Amaal Jantjies and Janick Adonis, who allegedly conspired with Modack to kill Kinnear in November 2019, have cancelled the services of their legal representative and applied for a legal aid lawyer.

Nafiz Modack appeared with 14 co-accused at the Cape Town High court on 5 May 2023. Photo: Daily Maverick

Read in Daily Maverick: Bail applications wrapping up in Cape Town case against alleged underworld cop killers

Modack and the other accused without lawyers were given until 9 June to clarify their legal representations in both the Sars and criminal matters.

Modack, his mother Ruwaida, his brother Yaaseen and the other accused in the Sars matter as well as Modack’s co-accused in the criminal matter are back in court for pre-trial purposes on 9 June. DM