The state’s case against alleged underworld kingpin, Nafiz Modack, was dealt a moerse blow on Tuesday amid questions whether cellphone ‘pinging’ evidence should be admitted.
The testimony of Hawks detective Captain Edward Du Plessis was brought to an abrupt halt by Judge Robert Henney who called on the state to bring an application on why he should accept the evidence as part of the mammoth underworld trial.
This shocking turn around comes years after the state highlighted the pinging evidence as the key to unlocking the reasons why Modack was accused of plotting the assassination of slain Anti-Gang Unit detective, Lieutenant-Colonel Charl Kinnear.
Shortly after Kinnear was gunned down at his Bishop Lavis home, the Hawks swooped in and arrested former rugby player and debt collector Zane Killian, saying they had evidence that he had pinged Kinnear’s cellphone thousands of times ahead of his murder, allegedly at the instruction of Modack.
The duo have subsequently gone on trial for the illegal interception of Kinnear’s cellphone as well as that of William Booth, Jerome ‘Donkie’ Booysen, Mark Lifman, and public figures such as Mayco member for safety and security JP Smith.
While the man who gunned down Kinnear was never arrested, it was anticipated that the pinging evidence to be led by Du Plessis would seal the fates of Modack and Killian, linking them to Kinnear’s assassination.
However, during court proceedings on Tuesday, the evidence became hamstrung amid questions from Modack’s lawyer, Advocate Bash Sibda .
Sibda asked for the state to clarify on what basis Du Plessis was testifying about the pinging mechanisms when he was not introduced as an expert witness on the software.
“My Lord, this is my problem because he is speaking of the tool [used] and there is going to be a definite discrepancy between a layman and an expert,” argued Sibda.
State prosecutor, Greg Wolmarans, conceded that Du Plessis was not to be considered an expert witness but rather as a Hawks detective who had made use of the system for 15 years.
Wolmarans attempted to lead Du Plessis with questions in the hopes of clarifying why he should be allowed to testify on the pinging, but Henney stopped him.
“Let me stop you there, you know the rules. I am not going to allow you to do this unless you present it properly. This basic, fundamental law of evidence,” the irate judge said.
“I have given you a chance over and over to present this person, who is not an expert. He must tell me on a reasonable basis how he came to know the working of this.”
Henney then ruled that the state should bring a special application today to convince the court that the pinging evidence given by Du Plessis should be considered admissible.
Killian was seen grinning in the dock as court proceedings ended for the day.
Earlier in the day, Booth also took the stand, recounting the day two gunmen tried to kill him at his Oranjezicht home.
While these suspects have already been sentenced, Booth was called to appear amid testimony by a self-confessed hitman who told the court how he followed Booth, allegedly at the instructions of Modack to kill him but never succeeded.
Booth told the court he considered himself lucky and that following the attempt on his life he was forced to hire private security to safeguard himself and his family.
He said he knew none of the people accused in the plotting of his murder.
The trial continues.