IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case no: CC7/2023
In the matter between:
ZANE KILLIAN Accused/applicant
and
THE STATE Respondent
JUDGMENT DELIVERED (VIA EMAIL) ON 17 OCTOBER 2024
___________________________________________________________________
SHER J:
1. This is the accused’s second attempt at obtaining bail. He is currently
standing trial in this court (before Henney J) together with 14 co-accused. The
charge-sheet contains an impressive array of 124 charges, which include
racketeering, money -laundering and ga ng-related contraventions of the
Prevention of Organized Crime Act ,1 24 counts of the unlawful interception of
electronic communications ,2 19 counts of corruption -related offences, 3 4
counts of murder , 10 of attempted murder and 8 of conspiracy to commit
1 Act 121 of 1998.
2 In contravention of the Provision of Communication-Related Information Act 70 of 2002.
3 Contrary to the Prevention and Combatting of Corrupt Activities Act 12 of 2004.
~
murder,4 3 counts of intimidation ,5 7 counts pertaining to the unlawful
possession of firearms, ammunition and explosives ,6 and several charges of
fraud, extortion and kidnapping . The state alleges that the first accused, one
Nafiz Modack, was the head of a criminal enterprise through which the se
various offences were committed, at his instance and direction , and his
various co-accused acted in common purpose with him in carrying out these
offences.
2. The 43 charges which the accused faces include racketeering and gang -
related offences , the 24 counts of unlawful interception of electronic
communications, a single charge each of murder, attempted murder and
conspiracy to murder and fraud, and 13 counts of money-laundering. As far as
the charge of murder is concerned it is alleged that Modack and the accused
participated in the premeditated killing of Charl K innear, a Lt -Col in the
police’s Anti-Gang Unit. Insofar as the charge of attempted murder is
concerned it is alleged that they attempted to kill William Booth, an attorney.
As for the 24 counts of unlawful interception of electronic communications it is
alleged that the accused intercepted the transmission of communications from
the cellphones of Booth and Kinnear and their wives, as well as several high -
ranking members of the police, including Maj or-Generals Lincoln and Vearey,
and several so-called members of the ‘underworld’.
The background
3. The accused is 43 years old . He is divorced and has 2 minor children: a
daughter aged 15, and a son aged 9 who has cerebral palsy and is autistic. At
the time of his arrest in Springs, Gauteng on 22 September 2020 he was
operating as a debt collector and private investigator. He claimed that his
income averaged approximately R 20 000 pm and wa s derived principally
from repossessing motor vehicles and tracing debtors.
4 Contrary to the Riotous Assemblies Act 17 of 1956.
5 In terms of the Intimidation Act 72 of 1982.
6 Contrary to the Firearms Control Act 60 of 2002 and the Explosives Act 26 of 1956.
4. The accused’s arrest occurred 4 days after Kinnear was assassinated, shortly
after 15h00 on the afternoon of 18 September 2020, by an as yet unidentified
shooter, as he pulled into the driveway of his home in Bishop La vis. At the
time Kinnear was involved in high-profile investigations of alleged members of
the ‘underworld’, including Modack, and their affiliates , amongst which were
several high-ranking, allegedly corrupt police officers.
5. It is common cause that at the time of his murder Kinnear was being tracked
by the accused, for and at the instance of Modack . The tracking was done
electronically by means of a location -based tracking platform to which the
accused subscribed, which was run by an ex -policeman, one Goldblatt. The
accused bought bundles of search pulses or so-called ‘pings’ from Goldblatt,
for thousands of rands per bundle . Each ‘ping’ allowed him to conduct a
location search via the tracking platform on the whereabouts of a particular
cellphone, by sending an electronic pulse or signal to its number , which would
return with the GPS co-ordinates of the phone, to the nearest cellphone tower.
6. The accused also had access to Goldblatt’s account at Mar is IT, a consumer
tracing service, which allowed him to draw full, so -called consumer trace
reports which provided an astonishing amount of information on the subject s
thereof including their identity and cellp hone numbers, residential and work
addresses, immovable properties and motor vehicles registered in their
names, and even photographic images of them.
7. The tracking platform which Goldblatt operated was programmed to alert him
if a particular cellphone number was being excessively pinged by a user. On
1 September 2020 he was alerted that the accused was repeatedly p inging
certain numbers. Goldblatt ascertained that they belonged to Kinnear and a
colleague in the AG U, and Booth, who he noted had been the subject of an
attempted hit on 9 April 2020, when shots had been fired at him at his home in
Oranjezicht. The results of his enquiries caused Goldblatt to be concerned for
the safety of these persons and he reported this to a police officer he knew,
who served in a unit that dealt with crimes against the state. He was advised
to continue to allow the accused to use the tracking platform. On 17
September 2020 , the day before Kinnear was murdered , the accused
repeatedly sought to get hold of Goldblatt via WhatsApp and calls, so that he
could purchase an additional 100 pings, which he said he needed for an
‘enquiry’ that he was busy with at the time.
8. A few days after Kinnear was shot Goldblatt was called by the accused , who
informed him that the police were raiding his premises and w ere seeking to
confiscate his cellphones and laptop. The accused allegedly asked Goldblatt
to delete all traces of his activity on the tracking platform and Maris IT and told
Goldblatt that he had already ‘deleted’ what was on his cellphones.
9. The police seized the accused’s 3 cellphones , downloaded the contents of
what was stored on them, and carried out a detailed analysis thereof . They
found that although the accused had sou ght to delete all personal data and
WhatsApp messages that were on his phones, much of it could be recovered
from his deleted folders, which he had failed to empty. Included in the data
they recovered were WhatsApp images and screen grabs or screenshots ,
which remained on the devices. By cross-referencing the data and information
they recovered to a list which was provided by Goldblatt of cellphone numbers
which the accused had pinged, it was ascertained that the accused had
pinged Kinnear over a period of some 5 months, between 20 April 2020 and
the day he was killed on 18 September 2020, and one of his cellphones was
pinged over 2400 times. On the day that Kinnear was assassinated the
accused had pinged him a total of 35 times, starting from 02h32 a.m. From
about 11 h00 the frequency of the pings increased such that by 14 h30,
approximately 30 minutes before he was shot , Kinnear was bei ng pinged at
intervals of approximately 3 minutes at a time, until just before he was shot .
After the shooting the accused only pinged Kinnear one final time , about 30
mins later. In addition, the investigation revealed that the accused had
performed several consumer trace reports on Kinnear and his wife and
obtained photographic images of them from Maris IT, which he also forwarded
to Modack. The accused had also previously pinged Kinnear during May and
June 2020, when he was in Gauteng for an investigation into the alleged issue
of fraudulent firearm licences by police officers to several persons, including
Modack. On 17 May 2020 the accused provided the street address of the
guesthouse at which Kinnear and members of his investigating team w ere
staying in Sandton, to Modack , together with information pertaining to the
security arrangements which existed at the premises, from which it appeared
that he had been keeping Kinnear u nder both physical and electronic
surveillance.
10. From the dat a which was collected the investigating team also determined
that the accused had performed several ‘time -distance’ calculations as to how
long it would take Kinnear to get from a particular address or point to where
he was staying in Sandton , and to his home in Bishop Lavis , which were
likewise provided to Modack.
11. Given the information which the police recovered , the investigating officer,
Capt Joubert, concluded that the accused had been engaged by Modack in
an ‘intelligence gathering’ exercise by way of e lectronic surveillance, which
was used to facilitate the assassination of Kinnear.
12. The recovered data similarly established that the accused had also pinged
Booth on some 650 occasions over a period of 6 months between 6 March
2020 and 18 September 2020, at the instance of Modack , and had performed
consumer trace reports on Booth and his wife , which were sent to him,
together with particulars of Booth’s home and work addresses. On 18 March
2020 the accused also sent Modack a ‘time-distance’ calculation he
performed on how long it would take Booth to get to his home from a location
in Vredehoek. And, as in the case of Kinnear , on the day that B ooth was shot
at the accused started pinging his phone in the early morning hours (03 h35)
and continued to do so until about half an hour after the shooting.
The first bail application
13. In his first bail application, which was heard by the Bellville regional court, the
accused chose not to testify but to rely on an affidavit which he presented. At
the time he was facing only 4 charges , to wit charges of murder and
conspiracy to murder Kinnear, a charge of unlawfully intercepting electronic
communications from Kinnear’s cellphones, and a charge of fraud, in that he
had allegedly wrongfully misrepresented to the police, by way of a f alse
certificate, that he was registered as a private investigator.
14. In his affidavit the accused acknowledged th at as the charge of murder was a
schedule 6 offence, he bore the onus of establishing there were exceptional
circumstances present which, in the interests of justice, permitted his release
on bail. Although he had been advised that he did not have to deal with the
merits of the case against him he believed that it was appropriate for him to
do so ‘very briefly’. In this regard he sought only to respond to the charge of
murder. He said that the state would not be able to present any obj ective
evidence proving that he had committed the offence. The only ‘alleged fact ’
that linked him to it was that he had pinged Kinnear ’s cellphone to locate him.
But, so he said, Kinnear was ‘unknown to him’ and he had used ‘pinging’ to
trace and repossess debtors’ motor vehicles.
15. He was able to do so by pinging their cellphones via a software platform to
which he had been given access by Goldblatt. Neither the platform nor the
user code he had been given for it was exclusive to him and other persons
also used them, and some of the p ings that he purchased had ‘disappeared’
from his account. Thus, he could not be linked to the murder. He had
submitted photographs from CCTV footage he obtained which showed that he
was in a chemist in Springs at the time thereof.
16. These averments constituted the sole response the accused provided to the
charges he was facing. The rest of his affidavit was devoted to setting out his
personal circumstances , including those pertaining to his children. He sa id
that he had no previous convictions but had another criminal matter which
was pending against him, which also involved him pinging ‘somebody’. He
averred that his release on bail would not endanger the safety of the public or
the functioning of the crim inal justice system as he could not influence or
intimidate any witnesses, or conceal or destroy any evidence, and he would
comply with any bail conditions which were set.
17. In answer to the accused’s terse affidavit the state presented lengthy affidavits
by the investigating officer Capt Joubert and Capt Du Plessis, a member of
the investigating team . Capt Joubert outlined how Kinnear had been
assassinated by a lone gunman , wearing a hoodie and mask, who fired 3
shots at his head as he pulled into his driveway. From the CCTV footage it
appeared that the hit was well-timed, and the assassin was waiting.
18. The investigation had led the team to a data analytics company in Gauteng
which was run by Goldblatt , which provided a platform for the location-based
tracking of cell phones . The software allowed users to establish the GPS co -
ordinates of a specific cellphone in relation to the nearest cellphone tower,
thereby allowing a tracker to determine the approximate location of the
possessor of the phone. Caot Joubert confirmed that the accused had pinged
3 different cellphones used by Kinnear over several months, and on the day of
his murder had started pinging him in the early morning hours, with increasing
frequency, to the point where half an hour before Kinnear was shot he was
being pinged every 3 minutes.
19. Capt Joubert said that when the accused was first questioned in the presence
of his then attorney , one Eric Bryer , on 21 September 2020 , he was unco -
operative and evasive, and the decision was made to arrest him. While he
was being transported to Cape Town the accused informed members of the
police that he had connections to certain ‘underworld’ figures in Cape Town
and asked for a pen and paper so that he could provide a written explanation
for his pinging of Kinnear . The explanation was duly signed by him and
appended to his warning statement.
20. The version which the accused gave in his explanation was that a person ,
known only to him as ‘Mohammed’, had requested his assistance in tracing
and doing surveillance on his wife , who was having an extramarital affair in
Cape Town, and her boyfriend. Mohammed supplied him with several
cellphone numbers for the wife and her boyfriend so that he could trace a nd
report back on their movements. He was requested to do this tracking at
different times of the day and night . He duly carried out these requests from
March/April 2020 until 18 September 2020. He was paid between R 2000 and
R 5000 weekly for this work.
21. In the week leading up to 18 September 2020 Mohammed informed him that
the sheriff of the court was ready to seize his wife’s vehicle, and he should
accordingly be ready to respond immediately when requested to ping her. On
the day Mohammed informed him that the sheriff was ready to proceed. The
last pings that he made on Mohammed’s request were that afternoon, at
about 1 5h00, at which time he assumed that the motor vehicle had been
seized, as Mohammed never contacted him again.
22. In providing this version the accused again maintained that he did not know
Kinnear or even what he looked like. He said that f rom what he had read in
the media it seemed as if Kinnear had many enemies, even amongst
members of the police , and ‘anybody’ could have been responsible for his
death.
23. After the accused was confronted in several further interviews his version
changed. He revealed that Mohammed did not exist, and it was Modack who
had asked him to ping Kinnear. The accused also admitted that he had pinged
the cellphones of several other , high -ranking members of the AGU. He
claimed that Modack told him that he had been harassed by Kinnear and
these other members of the police and they were out to kill him. When
questioned regarding his pinging of Booth the accused elected not to provide
an explanation.
24. In his affidavit, Capt Du Plessis confirmed what was found on analysis of the
accused’s cellphones and the data which had been retrieved from them, in
relation to the tracking of Booth and Kinnear, and th e time-distance
calculations he had performed on them, to determine how long it would take
them to get from one point to another , and to their homes. In hi s view, t he
tracking information which the accused supplied made it possible for the
designated hitmen to be apprised, with a high degree of certainty, of the
arrival or presence of Booth and Kinnear at their predetermined locations ,
thereby affording the hitmen the opportunity to ‘orchestrate’ a properly timed
approach. In the circumstances, the role played by the accused in the murder
of Kinnear and the attempted murder of Booth had been integral.
25. Capt Du Plessis pointed out that the cellphone analysis also revealed that,
aside from Booth and Kinnear and officers of the AGU the accused had also
pinged several other persons who were of interest to the police. These
included Timothy Lotter (who had also been shot and killed following his
tracking) and Saameer Vallie (the complainant in respect of charges of
alleged extortion, kidnapping and intimidation by Modack , for whom Booth
had obtained an interdict against Modack ), as well as certain figures in the
‘underworld’ such as R alph Stanfield (the alleged leader of the 28’s gang in
Cape Town on whom an attempted hit had also been carried out), and Jerome
‘Donkie’ Booysen (the alleged leader of the Sexy Boys gang on whom several
attempted hits had been made ), who was a competitor to Modack in the
provision of security to nightclubs and restaurants in Cape Town. Given the
accused’s involvement in pinging these persons the police were of the view
that he was part of an organised crime syndicate, and his release would
endanger the community.
26. In a further affidavit Capt Joubert revealed that Goldblatt had been the victim
of a drive-by shooting in December 2020 and a threat had been made to him
on 5 March 2021. In addition, on 18 January 2021 Capt Du Plessis received a
threatening call from a person who claimed that there was a bounty of
R 1 million on his head. The call was traced to a person who worked for
Modack. Forensic investigations also brought to light that some R5.25 million
odd had been deposited into one of the accused’s bank accounts over th e
period between 19 June 2019 and 26 September 2020, R2.3 million of which
was deposited in the last 6 months of that period i.e. from March 2020, when
the accused started working for Modack.
27. In opposing the accused’s release on bail Joubert and Du Plessis referred to
the inconsistent versions which he had provided , which placed his credibility
in issue, and pointed out that he had sought to delete evidence (the data and
information on his cellphones) that was material to the investigations, and had
asked Goldblatt , who was now a state witness, to delete all traces of his
presence on the tracking platform and on Maris IT.
28. Consequently, they were of the view that if the accused were to be released
there was a strong likelihood that he might attempt to influence or intimidate
witnesses, conceal or destroy evidence, or otherwise undermine the
investigation. They pointed out that, by his ow n admission, the accused was
well-connected to certain figures in the underworld, including persons such as
Modack, who was at the centre of what appeared to be a large criminal
enterprise which had extended its reach to several criminal activities.
Photographs of the accused were found on his cellphones in which he could
be seen posing with firearms, in the company of Modack and some of the co -
accused. They noted further that the accused was in possession of a passport
and had travelled to Mozambique and Zimbabwe in 2019. Given the
unexplained, large sums of money that were paid into his account, for which
no explanation was provided, which were likely the proceeds of criminal
activities, the accused had the means to flee the country and to evade trial.
29. In argument before the regional magistrate the accused’s counsel
nonetheless suggested that the foll owing exceptional circumstances were
present, which justified his release on bail, in the interests of justice: 1) he
was suffering financially and emotionally every day that he was in custody 2)
his disabled son was suffering because of his absence and was struggling to
cope without him 3) his father was in poor health 4) he was a 1 st offender at
the age of 39, which indicated that he was a law-abiding citizen 5) he suffered
from a bipolar mood disorder and 6) the state’s case against him was weak.
30. The magistrate was of the view that the state’s case, albeit based on
circumstantial evidence, was not weak and not only had the accused failed to
show that there were exceptional circumstances pres ent, as the term is
understood in law, but also that the v arious grounds listed in s 60(4)(a) -(d) of
the Criminal Procedure Act7 militated against his release on bail. In this regard
she was of the view that there was a likelihood that, if he were to be released
on bail the accused would endanger the safety of t he public or particular
persons, would attempt to evade his tri al and influence or intimidate
witnesses, and would endanger the proper functioning of th e criminal justice
system.
31. On appeal, Binns-Ward J held 8 that the magistrate was justified in finding that
in the face of prima facie evidence which pointed to a ‘knowing involvement’ in
the murder of Kinnear the accused’s evidence was riddled with improbabilities
and untruths and he had failed to discharge the onus of showing there were
exceptional circumstances present which justified his release on bail . He was
of the view that the evidence of Goldblatt stood as clear proof of the
accused’s propensity and readiness to interfere with evidence , if given the
opportunity, and the magistrate had been correct in concluding that the
electronic records link ing the accused to the tracing and surveillance of
several persons who had been victims of violence , suggested that he was
involved in underworld activities.
The second and third bail applications
32. Prior to his transfer for trial in this court the accused launched a 2 nd bail
application in the regional court , when additional charges were preferred
against him, which, on the advice of his legal representatives he apparently
abandoned.
33. In his application in this court he filed a further affidavit, the contents of which
he sought to amplify extensively in days of oral evidence. He also filed a
supporting affidavit from his father , who confirmed that he was assisting to
maintain the accused’s disabled son inter alia by paying for his school fees
and medication and providing him with food. He transported the child daily to
and from school and care d for him in the afternoons until his mother collected
7 Act 51 of 1977.
8 Killian v S [2021] ZAWCHC 100 para 59.
him and looked after him over the weekends. Notably, in his affidavit the
accused’s father made no allegation that he was in ill-health.
34. In many respects the affidavit which the accused filed in this court is a
repetition of the averments which he previously made in the affidavits he filed
in the regional court. Thus, regarding his personal circumstances he repeated
what he previously said in relation to his children and his medical condition ,
for which he is required to take medication daily. He confirmed that he ha s a
passport, although he said he initially told his legal representatives that he did
not have one. ‘In the chaos of the arrest’ it ‘slipped his mind’ that he had been
issued with a passport in 2015 , but he had never used it. How he was able to
travel to Mozambique and Zimbabwe in 2019 without it was not explained and
is a cause for concern.
35. As in his previous application, he said that although he was advised that he
did not have to deal with the merits of the case against him he believed it was
appropriate to do so ‘very briefly’. He reiterated that, according to him, the
state would not be able to present any objective evidence that would prove
that he had committed murder, and he intended to plead not guilty to all the
charges. The only ‘alleged fact’ that linked him to the murder of Kinnear was
the allegation that he had pinged his cellphone . He had tracked individuals on
the platform provided by Goldblatt, in the ‘execution of his business’ as a debt
collector and repossessing agent. His use of the platform was not exclusive
and pings he purchased had disappeared from his account.
36. He provided a list of other users to whom Goldblatt had provided access and
the same user code and password , who had also pinged Kinnear, including a
Brophy, Nel, and one C alvin Rafadi, who seemingly had also done so for
Modack. He claimed that Goldblatt also sold pings to various ‘ Cape
Underworld characters’ (sic) and his evidence wo uld not withstand judicial
scrutiny. He contended that the state would not be able to produce a record of
the specific pings that he had performed on the platform, and it was ‘unlikely’
that it would be able to prove the location of users of the platform , at the time
when they pinged the various numbers which were recorded on the list which
Goldblatt provided.
37. Contrary to his previous assertion , under oath, that Kinnear was ‘unknown’ to
him, he now confirmed that Modack had engaged him to ‘gather information’
on him. He said Modack told him that Kinnear was a corrupt policeman to
whom he had paid money in the past and was in cahoots with Jerome
‘Donkie’ Booysen, and they were planning to kill him. Modack asked him to
ping their cellphones at the same time to see if they were in the same
location. On several occasions the results he obtained showed that the y were
indeed in the same vicinity or location, which gave cre dence to Modack’s
averments. Modack sent him a photo of an alleged police hit list, on which his
(Modack’s) name appeared. He also sent him a video which purportedly
showed gates that had been forced open, dogs that had been shot and staff
who had allegedly been assaulted by the police, when they raided his home.
38. On occasions when he pinged Kinnear’s phone the GPS co -ordinates
revealed that he was in Brakpan and Springs, where the accused’s children
were at school, and on one occasion it showed he was in the vicinity of Nigel ,
where the accused’s ex-wife resided. This caused him to be concerned for his
safety and that of his family. When he queried why Kinnear was in ‘his area’
Modack said h e should not worry as he was there for a firearm investigation
involving corrupt policemen.
39. Modack also told him that that Kinnear’s car was up for repossession, and he
wanted to humiliate him by participating therein. Modack had made the
necessary arrangements with the sheriff and had a ‘ground team’ ready to
assist him, and to this end requested the accused to ping Kinnear daily.
However, the team always had an excuse for not carrying out the
repossession. This frustrated and irritate d the accused because he was
constantly being asked by Modack to ping Kinnear in the early hours of the
morning. He did not consider it strange to receive such requests late at night
or in the early morning hours as Modack worked in the nightclub security
sector. The accused suggested that Modack pay for him to fly down to Cape
Town so that he could repossess the vehicle himself.
40. On 18 September 2020, the day Kinnear was shot, Modack asked him to ping
his cellphone throughout the course of the day. He was n ot aware that there
was a plot t o assassinate Kinnear or that he might be taking part in it. The
requests stopped at about 15 h25, which was the last time that he pinged
Kinnear’s phone.
41. Shortly after Kinnear’s assassination he received a voice note from Renier
Van der Vyver, a ‘close associate’ of Modack, who expressed joy at the news ,
saying that Christmas had come early. He also received a call from Ziyaad
Poole (accused no. 3) an associate of Modack , who told him to get rid of his
cellphones. However, he did not do so and handed them over to the police
when they came to search his premises. He then contacted Modack, who told
him to contact his attorney Bryer , who in turn told him to exercise his right to
remain silent. In a WhatsApp message Bryer told him not to say ‘anything’. In
a later communication Bryer told him to keep himself, Bryer and ‘the boss’ i.e.
Modack ‘cov ered’. At some stage Breyer warned him that if he implicated
Modack he and his family might as well ‘pick out’ their coffins. Bryer’s legal
fees were paid by Modack. Bryer told him Modack had said that he was to say
that he pinged Kinnear at the request of a Mr Mohammed , and that was the
version he accordingly provided to the police . However, he later admitted to
the police that the person who had requested him to ping Ki nnear was
Modack.
42. In addition to admitting that he pinged Kinnear, the accused also admitted that
he had pinged Booth, at the request of Modack, who told him Booth was an
attorney who owed money to a client. He was likewise unaware that an
assassination of Booth was planned.
43. The accused sought to assail the credibility of Goldblatt in various ways , inter
alia by criticising his failure to timeously and properly inform the police of his
alleged concerns. He denied that he requested Goldblatt to delete his profile
from the tracking platform and Maris IT. He also devoted a large portion of his
evidence to what he referred to as ‘issues’ he had with the police and their
role in the matter. He referred to a copy of the report of an investigation which
was carried out by the Independent Police Investigative Directorate (‘ IPID’)
into the circumstances surrounding Kinnear’s death, which was highly critical
of the police and the Directorate for Priority Crime Investigation (the ‘DPCI’ or
‘Hawks’ as they are commonly known), in particular. In this regard IPID was of
the view that the DPCI had failed to act timeously regarding the threat on the
life of Kinnear and the Crime Intelligence division had failed to conduct a
proper risk assessment on him. The police had also acted inapp ropriately by
prematurely terminating the add itional security which had been provided to
Kinnear, leaving him exposed at the time of his assassination.
44. In his evidence (which he le d himself without any assistance from his
attorney) the accused also emphasised the repeated reference in the IPID
report to the doings of a so -called ‘rogue unit’ within Crime Intelligence,
Western Cape, members of which had apparently been keeping Kinnear
under surveillance and had been conducting ‘investigations’ into him and
other senior members of the AGU, including Generals Vearey and Lincoln. He
pointed out that the IPID report noted that Modack had provided a statement
to the rogue unit, in which he had alleged that Ve arey and Kinnear were
corrupt and had attempted to defeat or obstruct the course of justice . In this
regard the accused referred to allegations that Kinnear had sought to
misappropriate drug monies which had been booked into evidence.
45. However, from a perusal of the IPID report it is notably apparent that what the
accused failed to mention was that Modack was not prepared to co -operate
with IPID in an investigation of these alleged offences , and IPID had
recommended that members of the ro gue unit should be charged . The IPID
report also noted that Kinnear had opened several criminal cases in Gauteng
pertaining to the fraudulent issue of firearm licences, in which Modack was the
primary suspect, and there was a ‘clearly corrupt ’ relationship be tween him
and certain high -ranking police officers who had facilitated the issue of such
licences to him and his family, in exchange for the payment of bribes.
An assessment
46. As the offence of premeditated murder is listed in Schedule 6 of the CPA, in
terms of s 60(11)(a) of the Act the accused is required to be kept in custody
unless he is able to adduce evidence which satisfies the court that exceptional
circumstances exist which, in the interests of justice, permit his release.
47. In Dlamini 9 the Constitutional Court held that the provision places an onus on
an accused, to prove, on a balance of probabilities , not only the existence of
such circumstances which justify his release on bail, but also that it would be
in the interests of justice for him to be released.
48. It is trite that what will constitute exceptional circumstances will depend on the
facts of each particular matter, and in order to determine whether they have
been shown to exist the court is required to consider and weigh up all relevant
material which has been put forward by an accused, as a whole.10 In essence,
the court is required to make a value judgment based on the evidence which
is before it.11
49. In S v H, 12 one of the early decisions that dealt with the meaning of the term,
it was held that exceptional circumstances are not circumstances which are
found in an ‘ordinary’ run -of-the mill bail application, but which are ‘out of the
ordinary’ or ‘unusual’, and in Petersen13 a full bench of this division held that
they a re circumstances which are ‘unusual, extraordinary, remarkable,
peculiar or different’. In Scott-Crossley14 the Supreme Court of Appeal held
that personal circumstances which are commonplace do not constitute
exceptional circumstances.
9 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC).
10 S v Mohammed 1999 (2) SACR 507 (C).
11 S v Botha & Ano 2002 (1) SACR 222 (SCA) para 19.
12 1999 (1) SACR 72 (W) at 77e-f.
13 S v Petersen 2008 (2) SACR 355 (C).
14 S v Scott-Crossley 2007 (2) SACR 470 (SCA) para 12.
50. That said, it has been held that showing exceptional circumstances for the
purposes of s 60(11)(a) does not impose a standard that would render it
impossible for an unexceptional but deserving applicant to make out a case
for bail .15 Exceptional circumstances therefore do not have to be
circumstances ‘above and beyond’, or different, from those enumerated in ss
60(4)-(9) of the CPA , to which regard is ordinarily had in bail applications .
However, they should be ‘compelling enough’ to take the case which is made
for the granting of bail beyond the ordinary. 16 Thus, ordinary circumstances
which are present to an exceptional degree may suffice.17
51. In my view the accused has failed to show that there are any exceptional
circumstances present or that his release on bail would be in the interests of
justice.
52. During argu ment the circumstances advanced by the accused’s attorney as
being exceptional were that 1) various persons other than the accused had
pinged Kinnear 2) Capt Du Plessis had filed a further affidavit in September
2021 which revealed that one of these figures , Calvin Rafadi, had received
monies from Modack, including a payment of R 180,000 shortly after Kinnear
was shot 3) the contents of the IPID report cast the network of suspects far
and wide, and included members of the police and those of a ‘rogue unit’ in
Crime Intelligence, who had also been monitoring and tracking Kinnear 4) the
accused’s personal circumstances, including that he had been in custody for
just short of 4 years and was no longer in a position to interfere with witnesses
or evidence as the trial was underway, militated in favour of his release and 5)
the inconsistent versions he had previously given w ere because he had been
threatened to keep Modack ‘covered’ and he had made a clean breast of his
involvement with Kinnear.
53. As far as the first 3 of these circumstances are concerned, as I see it, they are
aimed at suggesting that there may be other persons who may have been
15 S v Josephs 2001 (1) SACR 659 (C) at 668I; S v Viljoen 2002 (2) SACR 550 (SCA).
16 Killian n 8 para 4.
17 Dlamini n 9 para 76; Botha n 11 para 19; Rudolph v S 2010 (1) SACR 262 (SCA) para 9.
party to Kinnear’s assassination. I am mindful that, as this is only a bail
application, the issue of the accused’s guilt and whether it will likely be proved
beyond reasonable doubt in the criminal proceedings , is beyond my remit ,
and I should refrain from maki ng any remarks which may impact on this
aspect. So too it is beyond my remit to speculate as to whether persons other
than the accused and Modack may have been involved in Kinnear’s killing.
54. For the purposes of this matter I can and indeed need , to point out that there
was no suggestion in the evidence (of either the accused or the state), that on
the day that Kinnear was assassinated anyone else was also pinging him, and
if there was, that they also did so throughout the day and with the regularity
and increasing frequency which the accused did , fro m the early morning
hours until minutes before Kinnear was fatally shot. As a result, on the
evidence which is before me the finger of implication points directly and
squarely at the accused and Modack and no-one else.
55. As my brother Binns-Ward J held 18 in his appeal ruling on the accused’s
previous bail application, I too I am of the view that the accused’s version that
he thought he was pinging Kinnear, on the day he was assassinated, because
he was assisting Modack with the repossession of his vehicle , is risible. As I
have it, t he accused himself said, in an unguarded moment during his
evidence, that in his time as a re-possessor he had been involved in ‘very few’
repossessions that were carried out in the very early morning hours. But, even
if I misunderstood him in this regard, i f the tracking he carried out on the day
was for the purpose of repossession, and to this end he already established
shortly after 02h32 a.m. that Kinnear was at his home, where most persons
are at that time of the m orning, why was it necessary to continue pinging him
thereafter for several hours, confirming each time that he was still at his
home, yet no repossession was seemingly carried out . And then, why was it
necessary to continue pin ging him throughout the course of the day, after he
left his home and went about his business, up and until the time he returned
to it in the early afternoon. This too was never explained and surely does not
18 Killian n 8 paras 60 and 63.
fit in with tracking for the purposes of a vehicle repossession. And then there
is the remarkable coincidence of the 2nd last ping taking place minutes before
Kinnear was shot by an assassin who was waiting for him , and then no more
pings thereafter, save one, which unlike those which preceded the 2 nd last
ping (which were carried out at regular intervals), occurred 30 mins after the
fatal shots were fired.
56. The accused’s version does not gel with his claim that he initially pinged
Kinnear at Modack’s behest, because Modack was scared that Kinnear was
out to kill him , and had asked the accused to track Kinnear to ensure that he
could avoid him or take protective measures, if Kinnear came his way . If this
was the case, why did the accused perform several time-distance calculations
of how long it would take Kinnear to get from a particular location to his home,
rather than to Modack. One of these calculations was performed to determine
how long it would take Kinnear to get to the guesthouse he was staying at in
Sandton, at a time when, as I understand it, Modack was either in Cape Town
or a considerable distance away.
57. Likewise, why did he perform time-distance calculations on how long it would
take Booth to get to his ho me, one of which was done in respect of a location
only 1.9 kms away from Booth’s home. There was never any suggestion that
Booth constituted a threat to Modack and the accused has never provided any
explanation for why he performed such calculations on him. Of course,
performing such a calculation would make sense in the context of facilitating
the carrying out of a hit on Booth. And in this regard the evidence which was
elicited from the accused in cross-examination was telling and significant.
58. On 8 June 2020 the accused sent Modack a photograph of Booth, which he
had copied off a News24 article. He said he did so because Modack was in
Gauteng at the time, for the purposes of a court appearance, an d wanted to
know whether Booth was also there . The accused did not know what Booth
looked like, so he did a Google search for a photographic image of him and
found one on a News24 article. In copying the image in order to send it to
Modack the accused also copied certain words, or parts thereof , from the
source article viz ‘..s 24’ and ‘..e Town attorney William..’ These appear as an
inscription below the photo of Booth on the IMG file which the accused sent
Modack.
59. Capt Du Plessis submitted a further affidavit into evidence in which he said
that he had established from News24 that the photo of Booth had only been
used i.e. published by it in two articles, before 8 June 2020: one which was
published on 17 October 2019 and one which was published on 9 April 2020,
the day of the attempt on Booth’s life. The headline of the article of 17 October
2019 was ‘It is illegal’-former Bishops teacher’s lawyer warns against sharing
lewd video allegedly of client’ . The headline of the article of 9 April 2020 was
‘Cape Town attorney William Booth shot at in his garage, escapes unharmed’.
It was therefore evident that the accused must have copied Booth’s image
and part of the wording from the headline of this article , which he then sent to
Modack. Those words , or parts thereof , which appeared in the file he sent to
Modack enclos ing Booth’s photo, particularly the phrase ‘ ..e Town attorney
William’ could not have been copied from the wording of the headline of the
first article, or the contents of the article itself, as they do not appear in it.
However, when this was put to the accused, he denied that the article of 9
April 2020 was the source of the photo and its accompanying inscription, even
though he claimed he had never read the article he sourced the photo from.
60. Even if the accused did not read the article itself (which stretches credulity)
and was not aware of the wide-spread publicity that was given by the media to
the attempt on Booth’s life 2 months earlier , he must surely have seen and
noted the contents of t he headline on 8 June 2020 , when he copied the
photographic image that appeared below or adjacent to it and some of its
wording. A nd a ny person in the position of the accused, armed with this
knowledge, would have realized there was a possible connection between the
earlier attempt on Booth’s life and his tracking, in other words, that Modack
might have been involved in the previous attempt on Booth’s life and /or his
tracking of Booth was to possibly facilitate a further such attempt. When
questioned on thi s aspect the accused was thoroughly evasive and
disingenuous. The obvious conclusion to draw from th is evidence and the
accused’s ducking and diving on this aspect, is that he realized that the photo
which he sent , in the context of the words (or parts thereof) that appeared
below it, would lead to the inference that he knew, as at 8 June 2020, that he
was tracking an attorney on whom a previous attempt to kill had been carried
out a few months earlier , and Modac k may thus have had something to do
with that, an d/or that he might may be tracking Booth in order to facilitate
another attempt on his life . And of course, this also impacts on the accused’s
understanding of why he was pinging Kinnear.
61. In the circumstances (as Binns- Ward J held in relation to the assassination of
Kinnear), the evidence that was elicited in the bail application also points to a
‘knowing involvement’ by the accused in Booth’s attempted assassination ,
and/or a conspiracy to carry out a further such attempt, as is alleged in one of
the charges.
62. In regard to the contention that the accused’s mendacity must be ascribed to
the fact that he was threatened by Modack (via Van der Vyver and Bryer) not
to implicate him and to keep him ‘covered’, but that he has now been honest
with the court, the accuse d’s performance in the witness box, as was
illustrated in relation to his evidence pertaining to Booth , shows the contrary
i.e. that he was still being mendacious and cannot be believed. In addition, the
difficulty which I have with the contention is that it makes no sense: if the
accused presented different, false versions to protect Modack, because he
was threatened and believed that he and his family were in danger if he
should reveal Modack’s involvement , in any shape or form , why then did he
later come out with it when interviewed by the police and why was he freely
able to testify at length about it in his bail application? In my view, the
improbabilities in the version which he presented about what Modack
allegedly told him about Kinnear and why he wa s to ping him, are ascribable
to the fact that the accused is trying to exculpate himself and Modack and
they are still in cahoots , and he has still not been forthright, open and honest
about their dealings.
63. As for the accused’s personal circumstances, if anything, these have paled.
There is no suggestion that either of his children are not being properly cared
for, in fact, the opposite: his daughter is being cared for by his ex -wife and his
son is being cared for by her and the accused’s father , who is also
maintaining hi m. There is no suggestion that the accused is not getting
access to the medication he needs for his bipolar disorder and over the week
that he gave evidence before me he came across as healthy and strong.
64. In relation to the fact that he has now effectively been in custody for 4 years
whilst awaiting trial , I was informed by the state that it envisages closing its
case this term. All things being equal therefore, by early next year the
accused will be able to p ut up their evidence, if any, in response to the state’s
case and the trial should be concluded, as far as the merits are concerned , by
the end of the 2 nd term of next year i.e. in approximately 6 -7 months’ time.
Given the se circumstances and the seriousne ss of the offences which the
accused is facing and the lengthy sentences he is likely to receive if convicted
(on the charge of murder he is potentially facing a prescribed minimum
sentence of life imprisonment) in my view it would not be in the interests of
justice for him to be now released on bail. Furthermore, given his previous
conduct in attempting to destroy material evidence and given that state
witnesses and members of the investigating team have been threatened, it
would be inimical to the interes ts of justice for the accused to be released on
bail. In my view, given 1) his admitted connections to figures in the underworld
2) the fact that he was previously able to leave the country to go to
neighbouring states without , seemingly, using his SA passport and 3) that he
had access to large sums of money that were deposited into his account, from
illicit sources related to criminal activities, in the event that he were to be
granted bail there is every likelihood that he would seek to leave the country
and to evade justice.
65. In the result , the application for the accused to be released on bail is
dismissed.
M SHER
Judge of the High Court
(Digital signature)
Appearances:
For the accused: D Gouws (D Gouws Attorneys, Gqeberha)
For the State: Advs G Wolmarans and B Lazarus