Lawyer Gary Newmark testified in the Western Cape High Court in Cape Town on Monday that alleged underworld figure Nafiz Modack had in the past instructed him to represent self-confessed hitman “Mr A” and other alleged Terrible West Siders gang members, as well as Modack’s alleged enforcer Jacques Cronje.

Mr A, whose identity Judge Robert Henney ruled cannot be disclosed, was the State’s first witness in the trial of those charged with the murders of the Anti-Gang Unit’s Lieutenant-Colonel Charl Kinnear, Nicolaas Heerschap and tow truck driver Richard Joseph, and the attempted murder of the attorney William Booth.

Mr A is serving 25 years for the murder of Heerschap following his plea and sentencing agreement in April 2022. He was the State’s first witness on 18 March. He testified that:

• He killed Heerschap (74) in Melkbosstrand in July 2019 after Modack ordered a hit on Hawks Warrant Officer Nico Heerschap. In a case of mistaken identity, Nico’s father, Nicolaas, was murdered instead. (On 24 April, Nico Heerschap testified that he was investigating a R50-million vehicle and property asset finance corruption case involving Modack at the time his father was murdered.)
• After the murder, Modack thanked him for a job well done.
• Modack was behind the attempted murder of Booth.
• He killed Joseph, also on Modack’s instruction.
• In September 2019 he fired a gun near security company boss and alleged underworld figure Andre Naude to scare him.
• He was arrested on 19 August 2019 for the illegal possession of a firearm and kept in the holding cells at the Woodstock Police Station. Three days later he was taken to the Cape Town Magistrates’ Court, where he was due to appear on a charge of illegally possessing a firearm. However, he was released before being charged.
• Outside the court, Newmark, the lawyer who informed him of his release, called Modack’s associate Ziyaad Poole. Newmark handed the phone to Mr A and Poole told him the “grootbaas” had secured his freedom.

124 charges

The State was trying to establish that Modack participated in gang-related activities and Newmark said he was summoned to testify in the current trial, which was “not at my free will”.

He testified that Modack had also instructed him to represent Fagmeed Kelly, Mario Petersen and Riyaat Gesant, all alleged Terrible West Siders gang members, in other matters.

Kelly, Petersen, Gesant and Cronje are co-accused along with Modack and 1o others. They collectively face 124 charges, including murder, attempted murder, corruption, gangsterism, extortion, the illegal interception of communications, money laundering and contravention of the Prevention of Organised Crime Act.

The other accused are Zain Kilian, Ziyaad Poole, Moegamat Brown, Petrus Visser, Janick Adonis, Amaal Jantjies, former Anti-Gang Unit sergeant Ashley Tabisher, Yaseen Modack, Mogamat Mukudam and Ricardo Morgan.

Modack and Kilian are the main accused in the murder of Kinnear on 18 September 2020 in Bishop Lavis, Cape Town, and the attempted murder of Booth on 9 April 2020.

Read more in Daily Maverick: Modack and co-accused plead not guilty to a murder in big Kinnear case amid tight high court security

State prosecutor Blaine Lazarus questioned Newmark about Mr A’s testimony.

Newmark testified that he had represented Mr A in two matters. One was an attempted murder in October 2019 in which Mr A attempted to flee from police officers, fired shots at them, and was shot in the leg by them.

The second incident involved Mr A and another person shooting a person in the head in Salt River. The individual survived the attack.

“After each appearance of Mr A, I called Modack and provided feedback. I explained why the case of Mr A was not enrolled. I follow Modack’s instructions to represent Mr A and others.

“I went on record for Brown on December 23, 2019, in the Salt River case, which lasted two years in the Cape Town Regional Court. Modack paid me electronically and in cash for these cases,” he told the court.

“After the release of Mr A, Modack told me I’m going to be his next Pete Mihalik.”

Mihalik represented Modack in extortion matters and was shot dead on 30 October 2018 while dropping off his daughter at a school in Green Point. His son was wounded, but survived, while his daughter escaped unscathed.

A statement submitted by the prosecution showed that payments totalling R35,000 were made from Modack’s Empire Investment Cars company account to Newmark.

This account was also discussed during Modack’s unsuccessful bail application in the Blue Downs Regional Court.

According to an affidavit by Hawks Captain Edward du Plessis, one of the investigators on a national task team investigating the murder of Kinnear,  he discovered 39 suspicious transactions in the account totalling R1.2-million.

Advocate Bash Sibda, Modack’s legal representative, told Newmark during cross-examination that Modack denied giving Newmark instructions.

The trial continues. DM