Bail denied — underworld figure Nafiz Modack must await trial in jail, says judge

On the afternoon of Friday, 3 March, Judge Mark Sher dismissed Nafiz Modack, Jacques Cronje and former Anti-Gang Unit sergeant Ashley Tabisher’s appeal against a decision of the Blue Downs Regional Court to deny them bail in January 2022.

In denying bail, Magistrate Deon van der Spuy said there were no exceptional circumstances that allowed their release in the interest of justice.

At that time, standing with the trio in the dock were murder co-accused Zane Kilian whose bail had already been denied, Ricardo Morgan who is out on R50,000 bail, Amaal Jantjies, whose bail was denied in May 2021, and Janick Adonis, currently serving time.

The main charges against Modack and Kilian are for the assassination of former AGU head Lt-Col Charl Kinnear in September 2020, and the attempted murder of criminal lawyer William Booth on 9 April 2020.

Visit Daily Maverick’s home page for more news, analysis and investigations

The murder charge in the indictment reads: “Modack and Kilian on or about 18 September 2020 and at 10 Gearing Street Road, Bishop Lavis, did unlawfully and intentionally kill Charl Kinnear. The two are also the main accused in a failed murder attempt on lawyer Booth.”

Jantjies’ role in the conspiracy to kill Kinnear was laid bare during her bail proceedings in the Parow Regional Court – it emerged that, allegedly on the instruction of Modack, she arranged an attempt to have Kinnear killed in November 2019.

Read more in Daily Maverick: “Jantjies hellbent on carrying out Modack’s orders to kill Kinnear, court hears”

Tabisher faces charges of fraud and corruption in that he allegedly agreed, for a fee of R10,000, to provide Modack with information on when police raids were to be carried out at his residence, and on who was feeding the AGU information about him.

Cronje is not involved in the Kinnear and Booth cases, but is linked to extortion, intimidation and kidnapping that the State claims he carried out on Modack’s orders.

The involvement of Cronje relates to the alleged extortion of Sameer Vallie in March 2020. The State alleges that Modack, Kilian, Cronje and Morgan worked together in March 2020 to trace, intimidate and kidnap Vallie and extort money from the victim.

Vallie approached William Booth to represent him and Booth managed to get a protection order against Cronje. Booth was also in the process of assisting Vallie in the criminal matter which Kinnear investigated.

More than 3,000 charges

All of these charges are included in the total of 3,121 charges. The majority of these charges, 3,085, relate to the illegal interception of electronic communications linked to the cellphones of, among others, Booth, Kinnear and retired AGU Major-General Andre Lincoln.

The group also face charges of contravention of the Prevention of Organised Crime Act, money laundering, kidnapping, extortion and malicious damage to property.

In his appeal application, Modack offered reasons why he should be released on bail:

1. He was a self-employed businessman involved in dealing in motor vehicles and immovable property and advising businesses which rendered private security services, from which he derived an income in excess of R100,000 per month.


2. He alleged that the charges of murder and attempted murder he was facing had been brought to intimidate him and were so “vague and unsubstantiated” that it was impossible for him to respond to them


3. He said no details had been provided on how he and others had plotted to kill Kinnear. Regarding the charge of attempted murder pertaining to a failed hand grenade attack on Kinnear, he said that it did not explode and that it did not constitute attempted murder to approach a house and throw a hand grenade at it.


4. He believed he was charged with Kinnear’s murder because a senior police officer in the AGU had expressed the view in the “popular press” that he was guilty of the crime.

 

‘Danger to society’

Dismissing the application by Modack and Cronje, Judge Sher said: “Modack and Cronje are a danger to society and need to be kept inside a correctional facility pending the outcome of their trials.

“In my view, the circumstances which are set out in the affidavit which were filed by Modack in support of his application for bail do not constitute exceptional circumstances, either individually or collectively, and are no more than the usual ordinary circumstances which attach to any accused.”

Judge Sher also said that by the time the bail proceedings were held, several witnesses, including Vallie, had been threatened or intimidated, as had investigating officer Captain Edward du Plessis.

Judge Sher said: “As is evident in respect of the evidence pertaining to the charges of kidnapping, extortion and intimidation, Modack and Cronje, as his ‘enforcer’, have resorted to acts involving threats of physical harm and violence in order to achieve a particular objective.

“There is every reason to believe that they will continue to resort to such further acts in order to intimidate or dissuade witnesses, or to derail the investigations and trial, if they were to be released on bail,” said the judge.

Dismissing Tabisher’s appeal application, Sher underlined that although his was a relatively junior rank in the police, Tabisher occupied a position of trust at a high level and was party to highly confidential communications between officers in the top echelons of the AGU.

“He was made aware, by virtue of the information which was disclosed at the meetings which were held at the AGU, that Modack was monitoring Kinnear surreptitiously and was planning to execute him.

“Despite this, he had no compunction in betraying Kinnear and his colleagues by agreeing to provide information about their activities to Modack. The fact that he was prepared to do so on an ongoing basis, for payment of R10,000 and a weekly ‘salary’, indicates that this was no momentary lapse of judgment on his part, but a deliberate and calculated act of betrayal.”

Modack and his co-accused are back in the Western Cape High Court on 5 May for pre-trial purposes. DM