Modack’s lawyer pokes a hole in his Poca charge
DEFENCE counsel for murder-accused and alleged underworld figure Nafiz Modack had requested the court scrap charges against him and his co-accused after it emerged that the State, in absence of a Prevention of Organised Crime Act (Poca) certificate, could not charge their client under the act.
Modack, Zane Killian, Jacques Cronje, Ricardo Morgan and Ashley Tabisher yesterday returned to the Blue Downs Regional Court for what had initially been bail application proceedings, but matters took an about-turn when Modack's counsel, Dirk Uys, said the schedule 6 charges brought against his client were “a nullity”.
“(State prosecutor Blaine) Lazarus said that there is no (Poca certificate) from the National Director of Public Prosecutions (NDPP). Well, the act says that no person shall be charged unless there is a directive from the NDPP. Accordingly, if that is the attitude of my learned friends, if they say there is no such certificate, my client should not have been charged.
“While I am accepting that my client was charged with schedule 6 offences ... if you take away the Poca offences (counts 1 and 2), there is nothing, no onus is thrown on the other accused and therefore they should not be obliged to start with (bail application proceedings). Charging of (Modack) under Poca was unauthorised, has accordingly not occurred and I ask you to delete charges which relate to Poca from the charge sheet against my client,” said Uys.
The State, in its case against Modack, said he was being charged for contravening the Poca Act and had acted in concert and common purpose with his co-accused as he managed and operated the “Modack Enterprise” between October 2019 and September 2020.
The charges against the co-accused emanated from their being employed by or associated with such enterprise by allegedly participating in racketeering activities.
The sentiment of Uys was echoed by the co-accused's counsel, who submitted that if a certificate was not before court and in the absence thereof, their clients could “suffer prejudice” in the matter if they were to go ahead with their bail applications.
Lazarus said they had been “surprised” by the objections brought by the defence counsel though all parties were “in agreement with the schedule offences” after the matters of the day were understood to be that of bail applications.
State prosecutor Greg Wolmarans submitted that the charge sheet before the court was a “draft charge sheet”.
“The bottom line is, this is a draft charge sheet given to the defence and the matter is under investigation. This is a bail application ... during such a stage, as the investigation progresses, the State is in a position to assess the charges. Some charges sometimes fall by the wayside, some get added on to the charge sheet.
“The court in any effect takes heed of the fact that such a matter is part of the investigation and there is a process of applying for the authorisation (for a Poca certificate). It is the State's view that there is nothing inappropriate or irregular in having the charges contained in the draft charge sheet pending authorisation,” said Wolmarans.
This all unfolded after Modack's counsel handed up a lengthy affidavit for his bail application following a delayed start to proceedings yesterday.
Uys handed up his client's affidavit with a submission that the State had the right to reply. The State however argued it should advance the bail application without the need for a right to reply as this would force the State to show its hand.
Magistrate Deon van der Spuy ruled that Modack had to submit a full and final bail application so all other bail applications could continue, adding that there were “other remedies available”.
The matter was postponed to June 29 for judgment.