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Judge in Modack trial rules that ‘pinging’ evidence is admissible

Judge in Modack trial rules that ‘pinging’ evidence is admissible
Nafiz Modack (front left) and Zane Kilian (front, second left) in the dock at the Western Cape High Court on 5 May 2023. (Photo: Daily Maverick)

Evidence gathered through the interception of cellphone communications — ‘pinging’ — will be allowed in the Western Cape High Court trial of Nafiz Modack and his 14 co-accused.

The State intends to use evidence gathered through the interception of cellphone communications — “pinging” — to prove that former debt collector Zane Kilian and alleged underworld figure Nafiz Modack conspired to carry out an array of crimes.

The issue became a bone of contention on Tuesday when Hawks Captain Edward du Plessis was prevented from testifying about pinging by advocate Bash Sibda, appearing for Modack. Sibda said Du Plessis was not an expert on pinging. The matter was set down for argument on Wednesday. But before the proceedings began in the Western Cape High Court on Wednesday, the prosecution and legal representatives for Modack and his 14 co-accused met Judge Robert Henney in his chambers.

The State’s case is that the pinging that co-accused Zane Kilian allegedly carried out on Modack’s orders resulted in the assassination of the Anti-Gang Unit’s Lieutenant Colonel Charl Kinnear on 18 September 2020 and the attempted murder of lawyer William Booth on 9 April 2020.

Read more in Daily Maverick: Nafiz Modack conspired with Zane Kilian to murder prominent Cape lawyer, claims State amid slew of charges 

The 15 accused collectively face 124 charges including murder, attempted murder, corruption, gangsterism, extortion, the illegal interception of communications, money laundering and contravening the Prevention of Organised Crime Act.

Accused along with Modack and Kilian are Ziyaad Poole, Moegamat Brown, Riyaat Gesant, Fagmeed Kelly, Mario Petersen, Jacque Cronje, Petrus Visser, Janick Adonis, Amaal Jantjies, former Anti-Gang Unit sergeant Ashley Tabisher, Yaseen Modack, Mogamat Mukudam and Ricardo Morgan.

Pivotal to Judge Henney’s ruling paving the way for Du Plessis to lead pinging evidence for the State, was Kilian’s affidavit at his third bail application where he admitted that he carried out pinging as part of his business as a debt collector; that he obtained the software and user code to carry out pinging from Bradley Goldblatt; and that he pinged certain people on the instructions of Modack.

“The pinging system connects a person’s cellphone to the nearest tower. It did not provide the addresses of those being tracked. The fact that Kilian intended to ping Modack is undisputed,” Judge Henney said.

Read more in Daily Maverick: Zane Kilian admits to tracking Charl Kinnear’s phone but denies being part of murder plot

Judge Henney said the State still needed to prove that Modack and Kilian used cellphone tracking to locate individuals to commit the crimes outlined in the indictment.

Prosecutor Greg Wolmarans told the court that in light of the new developments, the State would hold Du Plessis’ evidence in abeyance. He is expected to give evidence about pinging on Monday, 13 May.

The trial continues. DM

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