Modack and crew fail in bid to have murder and attempted murder charges dismissed

On Monday 27 January, Western Cape High Court Judge Robert Henney dismissed several charges against Modack and his 14 co-accused, but not the principal charges of murder and attempted murder.

Modack now has to deliver his arguments in chief, especially relating to the murders of Anti-Gang Unit (AGU) commander Charl Kinnear, Nicolaas Heerschap, father of former Hawks officer Nico Heerschap, tow truck driver Richard Joseph and the attempted murder of lawyer Willam Booth.

Nicolaas Heerschap, who was mistakenly murdered after a hit was ordered on his son Nico, a former Hawks officer. (Photo: Supplied)

Cape Town lawyer William Booth. (Photo: Vincent Cruywagen)

Of the 15 accused, only Janick Adonis and Amaal Jantjies – co-accused in the failed attempts on the life of Kinnear, including the failed hand grenade attack on his house on 22 November 2019 – have decided to close their case.

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.

SAPS Anti-Gang Unit commander Charl Kinnear was assassinated outside his home in Bishop Lavis, Cape Town, in September 2020. (Photo: Noor Slamdien)

Modack, Kilian and their co-accused are collectively facing multiple 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 Jacques Cronje, Ziyaad Poole, Moegamat Brown, Riyaat Gesant, Fagmeed Kelly, Mario Petersen, Petrus Visser, Janick Adonis, Amaal Jantjies, former AGU Sergeant Ashley Tabisher, Yaseen Modack, Mogamat Mukudam and Ricardo Morgan.

Poole, Brown, Gesant, Kelly and Petersen, all alleged members of the Terrible West Siders (TWS) gang, are the main accused in the 2019 Heerschap murder. State witness “A”, a TWS gang member serving 25 years for the murder of Heerschap, has admitted to the court that he shot and killed Heerschap outside his home in Melkbosstrand on 9 July 2019.

Read more: ‘Modack told me he was proud of the job’, says State witness on Heerschap murder”

Modack and his co-accused pleaded not guilty to the charges in January 2024.

Misunderstanding of the law

Central to the arguments by counsel for those accused of the murder of Heerschap and the attempted murder of Booth was that the evidence of witness “Mr A” that implicated them was unreliable, not credible, replete with contradictions and, to some extent, lies.

But Judge Henney ruled that “with all due respect to all the counsel that argued this, their argument is a misapplication of the law, and misunderstanding of the law in respect of the principle underlying the applications in terms of section 174 (of the Criminal Procedure Act).”

Hence the application for the remainder of the charges to be dismissed was denied.

“The court does not provide reasons for the refusal of section 174 applications, for reasons that will become apparent at a later stage,” Judge Henney said.

Advocate Bash Sibda, appearing for Modack, told the court he needed time to consult his client and prepare his evidence in chief.

The following charges were discharged:

• Public violence, in respect of Modack, Cronje and Visser relating to an incident at Cubana Night Club in Green Point at or around 3 December 2017;


• In addition, the court disagreed with the State that Cronje and Visser should not be granted a discharge in relation to the Cubana incident during which one person was stabbed and one was killed. Charges of attempted murder and murder were discharged against the accused;


• Trading in unlicensed firearms in respect of Adonis and Jantjies;


• Kilian – conspiracy to commit the murder of Booth;


• Kilian – the attempted murder of Andre Naude;


• Kilian – money laundering;


• Kilian – one count of fraud; and


• Corruption counts 103 and 104 which the State determined was a clerical duplication, in respect of Modack, Yazeen Modack and Mukudam.

Relief

When the court adjourned for a 45-minute break to allow the accused and their lawyers to decide who would take the stand next, Kinnear’s widow, Nicolette, said about the verdict:

“It is a huge relief. We are aware that this is a marathon, this was a huge hurdle that we needed to overcome, but the race continues…  We all know that there are still people out here that have not been charged; we all know that I’m referring to SAPS members.

“Vengeance does not belong to me, it belongs to God and the God that I serve will make sure that justice is served,” she said.

Shortly after the judgment, the former Hawks Warrant Officer Nico Heerschap told Daily Maverick that, “I just hope that the accused involved in the murder of my father, especially the man who ordered the murder on me, gets convicted and sentenced to life in prison.

“The investigation and prosecution team did an outstanding job and we as a family appreciate all the work and effort that went into this investigation,” he said. DM