South Africa: Modack Case Arguments - Innocent Businessmen Vs Notorious Underworld Figures

Cape Town at night. city lights
15 February 2018

Suspected underworld kingpin Nafiz Modack either believes himself to be totally above the law and conducts business by way of threats, or he is being portrayed this way in a case with "fatal weaknesses".

These two versions were argued in the Cape Town Magistrate's Court on Wednesday when Modack and his four co-accused appeared for the continuation of their bail application, which has been going on for nearly two months.

The State is opposing the application.

'Havoc' versus hearsay

The prosecution has argued that Modack and his co-accused caused "havoc" in the Cape Town city centre in trying to take over nightclub security.

To emphasise the danger they apparently pose to the public, the State again referred to a hand grenade, allegedly obtained by the grouping, which was still unaccounted for.

But the defence in the matter has argued that the State's case is not fully based on evidence, but rather hearsay.

It has also been argued that weight should not be attached to other matters allegedly relating to him, which the State has referred to. Potential crime which may be committed, it was further argued, should also not be held against the accused because they are innocent until proven guilty.

Modack is accused of extortion and intimidation in Cape Town along with Carl Lakay, Ashley Fields, Colin Booysen - the brother of alleged Sexy Boys gang leader Jerome Booysen - and Jacques Cronje.

The charges relate to the nightclub security industry in that they allegedly took over security operations at clubs and restaurants, forcing owners to pay them.

Modack and Cronje also face extortion charges in Johannesburg. They are expected to appear in court there on Monday.

The group in the Cape Town matter was arrested on December 15 and lodged a bail application shortly afterwards.

Closing arguments in the application were heard on Wednesday. Modack and his co-accused are expected to hear whether or not they will be granted bail on February 28.

In his closing argument, Modack's advocate Dirk Uijs SC said: "Neither the crime of intimidation, nor the crime of extortion was committed by any of the applicants, especially (Modack)."

'Very little' evidence

He said that the State had focused especially on his client, but had "very little" evidence against him.

The State alleges that Modack and his co-accused had extorted some of those running The Grand, an establishment in Granger Bay, of R90 000, by forcing them to use their security.

But Uijs said The Grand was still using the services of The Security Group (TSG), the security company the accused were allegedly linked to.

He said there was no evidence that Modack had threatened Radley Dijkers, a complainant in the matter and the brand manager of The Grand, or Stuart Bailey, the operations manager of the Harbour House Group, under which The Grand falls.

Uijs referred to testimony by Charl Kinnear, the investigating officer in the case, who previously testified that the complainants had "felt threatened by the demeanour of the accused".

On Wednesday Uijs hit back at this, saying: "You can't commit an offence by adopting a certain demeanour."

He likened what Kinnear testified to a "large aggressive person" approaching a petite and timid person and asking the smaller person to hand over their wallet.

"That's not robbery," Uijs argued.

Flight risk 'afterthought'

He referred to Kinnear's previous testimony that Modack was a flight risk.

Uijs said this had not been the immediate stance of Kinnear's and it appeared to be "a bit of an afterthought".

He said the claim, which resulted in Modack being deemed a flight risk came from "an unidentifiable person within the prison" and said no great weight should be attached to it.

Uijs also referred to claims that Modack planned to have Kinnear, two police officers and the prosecutor in the case murdered.

He said when these allegations emerged "it was pretty clear the State's case needed beefing up".

Uijs said the allegations did not appear to be based on credible information.

He said several other matters and claims against Modack had been made during the bail application.

'Much ado about nothing'

Uijs urged the court to view these as irrelevant.

"You can't hold that against him. Please, please ignore the other evidence which has been piled up in this case," he said.

"There has been much ado made about nothing in this case.

However, prosecutor Esna Erasmus argued that the defence had focused mainly on the alleged extortion involving The Grand, when there were several more matters involved.

'Turf war'

She referred to a statement by Lieutenant Colonel Peter Janse Viljoen, of the Western Cape Hawks, who had detailed "the turf war between two factions."

Erasmus said a security grouping headed by controversial businessman Mark Lifman had been in control of nightclub security in the Cape Town central area. But that a grouping headed by Modack started taking over in March 2017.

She described this grouping as consisting of "notorious people.".

"Intimidating people and threatening people seems to be a way of life for (Modack). That is the way he does business," Erasmus said.

She referred to a woman from the SA Revenue Service who conducted a search at his home.

Modack had allegedly threatened her saying: "I'm going to get you."

'Witnesses will be intimidated'

Erasmus said Modack had not regard for law enforcement and seemed to think he was above the law, even allegedly threatening the sheriff of the court.

It was "a certainty", she said, that Modack would threaten and intimidate witnesses if released on bail.

Erasmus referred to Colin Booysen as "a notorious gangster and murderer", saying another attorney in the matter, Rooshdeen Rudolph, had initially used these descriptions of him.

She said video footage of Modack and about a dozen other men arriving at The Grand showed that they effectively forced those working there to pay them.

"The whole bunch of them went. These are notorious underworld (figures)."

Erasmus said attacks in the Cape Town city centre had stopped when the accused were arrested.

'Responsible for havoc'

"This is a clear indication this grouping is responsible for the havoc that is being created," she said.

Uijs hit back at Erasmus saying she was "really pushing the envelope" in labelling Colin Booysen a murderer and gangster.

He said she had not dealt with "the fatal weaknesses" in the State's case.

Bruce Hendricks, the legal representative of Colin Booysen, said there was no evidence to show that his client was a gangster.


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