South Africa: Unexplained and Lacking Elements in State's Case - Magistrate in Modack Matter

Cape Town at night (file photo).
28 February 2018

The magistrate in the extortion case of suspected underworld kingpin Nafiz Modack has found that the State failed to fully explain some elements of its case and in an instance, information which the investigating officer testified about was false.

"The charges against you, all five of you, cannot stand because the requisite elements are found to be lacking," Joe Magele told Modack and his four co-accused while delivering his judgment in their bail application in the Cape Town Magistrate's Court on Wednesday.

Modack and his co-accused were granted bail, following an intense application which stretched over more than two months and in which several claims and counterclaims were made against the police.

Modack, Colin Booysen - the brother of alleged Sexy Boys gang boss Jerome Booysen - Jacques Cronje, Ashley Fields and Carl Lakay, were released from custody on Wednesday after being detained since their arrest on December 15.

Modack, Colin Booysen, Cronje and Fields were each granted R10 000 bail, while Lakay was granted bail of R5 000.

Their release on bail is subject to certain conditions, which include that they report to particular police stations several times a week and that they should not go to nightclubs and restaurants in three areas.

When they emerged from an entrance on the side of the court building on Wednesday afternoon, several vehicles were waiting for them in the street.

Men, who appeared to be there as security, milled around before the group was released, as did some of their friends and relatives.

Modack was ushered into the front seat of an awaiting vehicle, which was parked in front of a red luxury car.

He did not say anything, but smiled as the convoy left.

Modack and his co-accused face extortion charges relating to nightclub security.

The prosecution previously argued that Modack and his co-accused caused "havoc" in the Cape Town city centre, trying to take over nightclub security. But the defence argued that the State's case was not fully based on evidence, but rather on hearsay.

While delivering his judgment on Wednesday, Magele said the State had led with the evidence of Charl Kinnear, a colonel and the investigating officer in the Cape Town extortion case.

Two security groupings

He said Kinnear had told the court there used to be a "dominant" group in the security industry dealing with nightclubs and restaurants in Cape Town.

This group, Magele said, was referred to as the "Lifman group" and prominent members included controversial businessmen Mark Lifman, Andre Naude and Jerome Booysen.

Magele said the court was informed that a new grouping, allegedly headed by Modack, had then started taking over security from the Lifman group and it was claimed that this led to violence.

Allegations had surfaced during the bail application that Lifman controlled certain police officers. An attorney had claimed this.


"There's never been any substantiating of these allegations," Magele said.

He said while the court would not entertain these claims, the claims could not be ignored.

Kinnear had previously testified that Modack had made his way around the Cape Town city centre in a convoy of vehicles with bodyguards.

Magele on Wednesday said Modack, via his legal team, had submitted that he had heard there was a hit on him and he therefore moved around with security.

"[He] received information there's a bounty on his head to the tune of R20m," he said.

Magele said claims had also surfaced that Modack wanted to cause the harm of the prosecutor in the matter, Esna Erasmus, as well as Kinnear, and two other police officers.

However, Modack had denied this.

Kinnear previously testified that Colin Booysen was a gang member.

"Under cross examination Colonel Kinnear was unable to substantiate his allegation with any sort of evidence," Magele said.

Unexplained time lapses

Modack and his co-accused were initially arrested for an April 2, 2017 incident involving an establishment in Granger Bay, The Grand.

Further charges were later added in the case relating to alleged incidents which happened in May, July, August, November and December 2017.

Kinnear previously testified that Modack, Colin Booysen and other accused had extorted R90 000 from The Grand by forcing managers there to make use of their security.

Magele on Wednesday said Modack and his co-accused were arrested on the April 2 incident, but were only taken into custody for this in December 2017.

He said the court would not speculate on this lapse of time before the initial incident and their arrests.

The State, at a later stage in the bail application, had handed up a number of affidavits containing allegations mainly against Modack. One of the affidavits contained allegations dating back to September 2015.

Magele on Wednesday said he was concerned as the affidavits contained serious allegations and made it appear as if Modack had no respect for the law."On the other hand, I also wondered why no action was taken until [Modack and his co-accused] were arrested on December 15," Magele said.

'Simply not true'

The State had argued that, if Modack and his co-accused were released on bail, they would interfere with State witnesses and cause chaos in clubs.

Kinnear previously testified that Modack had sent an SMS to the complainant in The Grand matter, apparently via an attorney, Bruce Hendricks' cellphone, saying there had been no extortion or threats against anyone.

Magele on Wednesday said: "That is simply not true. Mr Hendricks, as an officer of the court, would not allow [his phone to be used] for the purpose."

'Impression is that there were no threats'

He referred to two audio clips which Modack's legal team had played to the court, saying: "To my mind this recording seems to create the impression there were no threats."

In one clip, Modack is heard asking Radley Dijkers, a complainant in the matter and the brand manager of The Grand, if he or Colin Booysen had tried to threaten, intimidate or extort him in any manner.

Dijkers replies: "No, no, that's what I told Leon yesterday... . There was no intimidation or anything like that at all."

It was not clear who the Leon was to whom Dijkers had referred.Dijkers is then heard saying to Modack that an arrangement was made and "you guys" said the costs were higher than anticipated.Modack replies that that is "normal business".

The audio clips were not the only media presented in the court during the bail application.

Kinnear had previously showed a video to the court.

This was a CCTV clip of Modack, other accused in the case and other men entering The Grand together.

Kinnear said this was to show their demeanour which he said the complainants in the case had found threatening.

However, Magele on Wednesday said: "I saw a couple of men walking briskly through some yard."

He said he would perhaps have been able to draw a conclusion on their demeanour if he had seen how they had acted during a meeting inside the venue.

The case was postponed to April 5.

Modack and Cronje were also charged with attempted extortion in Johannesburg. They were both granted bail of R10 000 in this case on Monday.

This case is expected to resume at the end of March.


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