Nafiz Modack wants Kinnear murder charges dropped after prosecutors close their case

Nafiz Modack (left) and Zane Kilian appear in the Western Cape High Court on 29 January. (Photo: Gallo Images / Die Burger / Jaco Marais)

By Vincent Cruywagen

2 Dec 2024

In January 2025, alleged underworld figure Nafiz Modack, the main accused in the murder of Anti-Gang Unit Lieutenant Colonel Charl Kinnear, will apply to have a raft of charges against him, including the Kinnear murder, dropped.

On Monday, 2 December, the Western Cape High Court was due to hear alleged underworld figure Nafiz Modack and his 14 co-accused’s application to have charges in the Anti-Gang Unit (AGU) Lieutenant Colonel Charl Kinnear murder case dropped.

Their application comes after the State closed its case against Modack and his co-accused last week.

modack kinnear murder Anti-Gang Unit detective Lieutenant Colonel Charl Kinnear was assassinated outside his home in Bishop Lavis, Cape Town on 18 September 2020. (Photo: Noor Slamdien)

However, the proceedings were delayed after State prosecutors and the accused’s legal counsel met in chambers with Judge Robert Henney. When the proceedings began, Henney said some of the legal counsel had already submitted heads of arguments explaining why the allegations against their clients should be dropped.

But in Modack’s case, Henney told the court that he was facing 122 of the 124 charges and that Modack’s legal representative, advocate Bash Sibda, needed more time to finalise his arguments.

All heads of argument must be submitted by 13 January 2025 and Henney has scheduled hearings on 21, 22, and 23 January for the defence to present its arguments and the State to react. Following these arguments, the court will decide on the accused’s Section 174 application.

Section 174 of the Criminal Procedure Act permits a trial court to return a not guilty verdict after the prosecution finalises its arguments if the court finds there is insufficient evidence to lead to a conviction.

Modack and former rugby player 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 to attempt to murder lawyer William Booth in April 2020.

modack kilian Nafiz Modack (left) and Zane Kilian in the Western Cape High Court. (Photo: Gallo Images / Die Burger / Jaco Marais)

Modack and Kilian, with the other accused, are collectively facing 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 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.

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

State’s evidence against Modack

The State’s case against Modack and his co-accused began in January 2024, to prove beyond reasonable doubt that he and Kilian unlawfully and intentionally murdered Kinnear. More than 40 witnesses were called to the stand.

The “pinging” of Kinnear and Booth’s cellphones, which was allegedly used in the execution of these crimes, is central to the State’s case against Modack and Kilian as the two main conspirators in the police officer’s murder and Booth’s attempted murder.

Before the murder trial began, the State presented evidence during Kilian’s, Modack’s and their co-accused’s previous failed bail applications in the Blue Downs Regional Court, that Modack allegedly paid Kilian R96,000 to carry out the cellphone pings.

Read more: Nafiz Modack paid murder accused Zane Kilian almost R100,000, State alleges

Kilian is accused of pinging the cellphone of Kinnear 2,408 times; that of lawyer William Booth 658 times; that of alleged Sexy Boys gang boss Jerome “Donkie” Booysen 193 times; and that of alleged 28s gang boss Ralph Stanfield once.

On the day of Kinnear’s murder, the pinging began in the early hours. It significantly increased and 15 minutes before the shooting, Kinnear’s phone was allegedly pinged every three minutes.

Kilian has admitted to pinging Kinnear’s cellphone to trace his location and claims he did so at the behest of Modack.

In May, Larry Hurwitz testified virtually from the US that pinging — tracking the location of cellphones — worked and how accurate it was in determining the location of the person being pinged. He developed a system which one can use to ping a cellphone in South Africa.

“I was the CEO of this company named 3DT Group. The system and software platform to carry out pinging is called LAD. 3DT was a South African company that produced the software and had a contract with MTN and the pings were sold to various entities.

“We would then convert that longitude and latitude into an address, a process known as geocoding. Geocoding is the process of converting coordinates into physical addresses, such as, for example, 123 Main Street,” he testified.

During the trial, Sibda, who represents Modack, stopped Hawks chief investigating officer Captain Edward du Plessis from testifying on pinging. Sibda claimed that Du Plessis was not a specialist in pinging. However, Judge Henney later determined that the evidence was admissible.

Modack’s alleged association with the Terrible West Siders (TWS) gang was also brought to light during the testimony of a State witness, known only as “Mr A” to protect his identity.

Witness A, a TWS member, testified that Modack reportedly ordered a hit on Nico Heerschap, a Hawks officer at the time, in July 2019. However, Mr A shot his father, Nicolaas, in a case of mistaken identity. Witness A also claimed to have met Modack, who allegedly complimented him for a job well done.

Read more: Gangster admits to killing Hawks officer’s father, alleges Nafiz Modack was behind hit

The court also heard from evidence presented by the Hawks’ Du Plessis during his eight-day evidence-in-chief that in less than three years, R23.5-million was allegedly laundered through the account of Empire Investment Cars, which prosecutors have claimed was a front for criminal activity on the part of Nafiz Modack.

Almost R7-million came from The Toy Shop, a luxury car dealership in Cape Town, whose manager said the money was used to pay extortionists.

In February 2021, three men entered The Toy Shop and demanded to see the boss. When staff refused, more men got out of two taxis parked in front of the shop, entered the premises and began damaging the vehicles.

The State also relied on evidence from a plea and sentence agreement with Fareez “Mamokkie” Smith, a member of the Junky Funky Kids (JFK), for the five attempts to kill Kinnear in November 2019, including a failed hand grenade attack.

Smith admitted that he conspired with another JFK member, Janick Adonis, and Amaal Jantjies, to murder Kinnear at his home in Bishop Lavis in November 2019.

Read more: Suspect takes plea deal and admits to grenade attempt on life of murdered cop Charl Kinnear

Magistrate Richard Sikhwivhilu, dismissing Jantjie’s bail application in May 2021 stated: “From evidence presented by the prosecution during the bail hearing and messages between Jantjies and Modack, it appeared that Jantjies had carried out Modack’s instructions in attempts to assassinate Kinnear.

“That Jantjies had been ‘hell-bent’ on seeing through a hit to be carried out on a member of the AGU was reason enough for the court to be concerned. The accused had recruited people to carry out the hit and did not care whether anyone would be killed.”

Read more: Bail denied: Kinnear murder suspect Amaal Jantjies accused of ‘arranging’ five hits on top cop

‘Circumstantial evidence’

The legal representatives for all the accused want the charges against their clients to be dropped, believing that the State has a weak case.

On Monday, Sibda told Daily Maverick: “The State case against my client is extremely weak and based on circumstantial evidence. Hence we are filing a Section 174 application requesting that all charges against my client be discharged.”

During the trial, Sibda said there was no evidence to suggest that the shooter in the assassination of Kinnear used a cellphone or relied on pinging.

The legal representative for Poole, Brown, Gasant, Kelly and Petersen, all suspected TWS gang members, has questioned the credibility of Mr A’s testimony.

Arguments on the application to have charges dropped will begin on 21 January 2025. DM

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State’s evidence against Modack

‘Circumstantial evidence’