’Modack charges unlawful’: Organised crime case could be dropped
|Published
BAIL HEARING: Nafiz Modack outside court. Picture: Henk Kruger
The state’s case against alleged underworld kingpin Nafiz Modack was dealt a blow yesterday when it was revealed that the prosecutors had not obtained authorisation to charge him under the Prevent of Organised Crime Act (POCA).
Modack along with Zane Kilian, Jacques Cronjé, Ricardo Morgan and Sergeant Ashley Tabisher returned to the Blue Downs Regional Court for their bail hearing.
The men face a string of charges related to the murder of Anti-Gang Unit commander Charl Kinnear, who was assassinated outside his Bishop Lavis home last September.
The men arrived in court shortly after noon as lawyers were arguing over the charges.
Modack’s lawyer Dirk Uys highlighted a statement by prosecutor Blaine Lazarus that they had not obtained certification from the national director of public prosecutions to charge the men under POCA, yet it had been listed in the draft charge sheet.
According to the charge sheet, the state alleges Modack ran the “Nafiz Modack Enterprise” between October 2019 and September 2020 and his co-accused were affiliated with this enterprise.
It further alleges that Modack and Tabisher along with Amaal Jantjies and her boyfriend Jannick Adonis were members of the Junky Funky Kids gang.
Jantjies and Adonis were charged for the botched grenade attack on Kinnear’s home.
Uys told the court that if the certificate had not been obtained, the charges were unlawful and should be removed from the charge sheet.
“My learned friend Lazarus said there is no certificate from the national director of public prosecutions. If you take away the POCA offences, which I asked you to do, there is no onus thrown on any of the other accused and therefore they should not be obliged to start with the bail hearing.
“The charging of accused 1 [Modack] under POCA was unauthorised and should not have occurred and I ask your worship to delete this from the charge sheet against my client.”
Lawyers for Kilian, Cronjé, Tabisher and Morgan agreed that if there was no authorisation, their clients need not continue with the bail hearings due to a possible change in the schedule of the offence.
Seemingly flustered by Uys’ request, Lazarus and co-prosecutor Greg Wolmarans asked for an adjournment to study case law on the issue.
Chuckles were heard in the public gallery as those present questioned how the state could have failed to get authorisation despite executing a dramatic arrest of Modack and his co-accused in April.
Kilian smiled from ear to ear as he left the dock while Modack appeared to be smirking under his black face mask.
After 45 minutes court resumed, with Lazarus stating that Modack’s co-accused would still face schedule 5 charges, while Wolmarans highlighted a judgement by the Supreme Court of Appeal saying it was not necessary for the state to obtain the certificate while the matter was still being investigated.
Magistrate Deon van der Spuy subsequently postponed the matter to 29 June when he will make a ruling on whether or not the POCA charges will remain.