State accuses Nafiz Modack of brazen abuse of court process

On Monday, 18 May, alleged underworld figure and murder accused Nafiz Modack and 14 others appeared before Judge Robert Henney in the Western Cape Division of the High Court in Cape Town, where arguments were heard for the court to deny Modack’s latest postponement application and close his defence due to pervasive delays.

The State invoked article 342A(3)(d) of the Criminal Procedure Act. For the provision to apply, the court must determine whether the delays caused by Modack amount to exceptional circumstances. If so, the court may order that his case be deemed closed on the basis that the delays were unjustified and prejudicial to the administration of justice.

The State resorted to the extraordinary application after multiple delays and postponements in the trial of Modack and his co-accused, who pleaded not guilty in January 2024 to the charges against them. Modack has been accused of requesting postponements for witnesses who never appear in court.

The indictment includes 124 charges, including the assassination of Anti-Gang Unit (AGU) detective Charl Kinnear, as well as money laundering, corruption and a racketeering charge involving all 15 accused. Kinnear’s murder on 18 September 2020 in Bishop Lavis, outside his home, and issues surrounding it have triggered allegations of deep-rooted corruption within the South African Police Service (SAPS).

Modack and debt collector Zane Kilian are the two main accused in Kinnear’s assassination on 18 September 2020. The State contends that they also conspired in a failed attempt to murder lawyer William Booth on 9 April 2020.

Fast forward to 21 November 2024. The State closed its case after calling 47 witnesses in the marathon trial. Modack’s cross-examination by the State began on 26 February 2025 and concluded on 31 December 2025.

Judge Robert Henney has warned numerous times throughout Modack’s defence that the court was losing patience with the prolonged delays.

“We are dealing with a situation where Modack has already pleaded, is unable to proceed with his case, and the purpose then is to seek to close the case.

“There is a hold-up in the proceedings in this matter that cannot continue. There are continuous requests for postponements to get witnesses, but they do not emerge. We are at a stage halfway through the [court] term and not much was done by this court to proceed with the case of Modack,” Henney said on Monday.

Rights of other accused

Modack’s legal representative, advocate Bashier Sibda, argued that the case was complex and questioned who should ultimately be blamed for the delays.

Henney repeatedly interjected, stressing that the central issue before the court was the defence’s inability to proceed.

“What must I do with regard to the fact that you cannot continue? That is my biggest gripe, the fact that you cannot continue. I’m not blaming you for not doing that, but I cannot postpone every time and run overtime because it becomes an abusive process,” Henney stressed.

The judge reiterated that the ongoing uncertainty surrounding Modack’s defence was also affecting the rights of the other accused, who needed clarity on Modack’s intentions in order to prepare their own cases.

Sibda said he had to vet witnesses before he could tell them to come to court. If they were not going to assist the case, he could not call them to court.

“I travelled to Goodwood Prison, where Modack is being held, on 33 occasions for prison consultations amounting to more than 75 hours. The problem I have, my lord, is I have been to Goodwood Prison 33 times just for prison consultations, and it comes to over 75 hours of consultation,” Sibda said.

“And that brings you to nought,” Judge Robert Henney interjected.

Irrespective of Judge Henney’s ruling, which is expected to be delivered on Wednesday, 20 May, Sibda indicated that once he had obtained the outstanding witness statements, he was considering filing an application to have Modack’s case reopened.

‘Playing games’

State prosecutor Greg Wolmarans argued that Modack’s latest request for a postponement had no justifiable basis and amounted to asking the court for a “blind indulgence”.

“It is ultimately a request for the court to grant a postponement as a blind indulgence, just give it,” Wolmarans submitted.

Henney interjected: “It is not there for the asking.”

Wolmarans further argued that Modack appeared to be “playing games” in the presentation of his evidence and that no acceptable explanation had been provided for his conduct.

The court heard that Sibda had effectively been left in a state of limbo on Thursday, 14 May, without witnesses, after Modack allegedly decided, on his own timeline, when to release the names of those he considered to be viable defence witnesses.

“Mr Sibda has placed on record that on certain occasions, the witnesses his client insisted on calling were, in his view, unable to contribute relevant evidence,” Wolmarans said. “At the heart of this matter is the lack of reasons provided and whether a person can be blamed for the current state of affairs.

“The cause of the pervasive delays appears to be Modack and his abuse of process. He is without doubt the person to be blamed for the delays,” Wolmarans argued.

The State further submitted that there was a growing perception that the proceedings were meandering and drifting, with Modack’s defence case appearing to proceed without purpose or direction other than what it described as a “clumsy intent” to cause delay.

‘Delays unreasonable’ — co-accused

Former AGU sergeant and co-accused Ashley Tabisher, who was arrested in May 2021 and resigned in October 2022, told the court the ongoing delays were preventing him from taking the stand and presenting his version.

Tabisher, who said he had a family to support, claimed that the repeated postponements were only worsening his situation and negatively affecting his chances of finding employment.

The State alleges that Modack paid Tabisher R10,000 for information about AGU investigations against him.

Another co-accused, Amaal Jantjies, who is alleged to have plotted failed hits on Kinnear in 2019, also indicated that she wanted Modack’s case to be closed so that the trial could proceed and a verdict eventually be reached.

Jantjies’ bail application was denied in the Parow Regional Court on Wednesday, 25 May 2021.

Judgment will be delivered on Wednesday, 20 May. DM