IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: CC/07/2023
In the matter between
ZANE KILLIAN APPLICANT
AND
THE STATE RESPONDENT
Date of Hearing : 25 March 2026
Date of Delivering : 14 April 2026
JUDGMENT
THULARE J
ORDER
The application to be granted bail is dismissed.
[1] This is an opposed bail application on new facts. The applicant’s trial is
underway before another judge wherein 47 witnesses testified on behalf of the
State. In the trial, where the applicant is accused number 2 alongside 14 others, the
State case was closed. The indictment itself contained 124 charges. At the close of
the State case the applicant was granted discharge o n 4 counts and still faced 37
counts. The applicant testified before accused 1 and has already completed his own
defence and closed his case . Accused 1 testified and is in the process of cross -
examination.
[2] Whilst only facing the charges related to the murder of an investigating officer
Lieutenant-Colonel Kinnear (Kinnear), to wit murder, conspiracy to commit
murder, contravention of the Interception of Electronic Communications Act and
fraud with the alterna tive charge of obstructing the course of justice, the applicant
applied for bail in the regional court, which was refused in March 2021. On 2 May
the High Court dismissed the appeal against the refusal to release the applicant on
bail. The applicant’s case was consolidated w ith another matter whereafter the
applicant faced additional charges alongside his co -accused. The applicant with
other co -accused brought a bail application. I n so far as the applicant was
concerned that application was directed at the additional charges. The applicant
abandoned that application. The applicant brought a bail application on new facts
in the High Court, which was dismissed in October 2024. Before this court is
another bail application based on new facts.
[3] The remaining 37 charges against the applicant are that he conducted or
participated in the conduct , directly or indirectly, of the criminal enterprise affairs
in contravention of the provisions of the Prevention of Organised Crimes Act, 1998
(Act N o. 121 of 1998) (POCA) (count 2); performed acts aimed at causing,
bringing about, promoting or contributing towards a pattern of criminal gang
activity in contravention of POCA (count 28); unlawful interception of
communication (count 46); attempted murder of a legal practitioner (Mr Booth)
(count 47); unlawful interception of communication (count 48); murder (Kinnear);
unlawful interception of communication (count 50 to 72); money laundering (count
73 to 76), money laundering (counts 78 to 82) and counts 83 to 85.
[4] In essence, the new facts relied upon by the applicant are that after the close of
the State case, he applied for discharge and was discharged on four counts which
were the conspiracy to commit murder on Mr Booth (count 29); the attempted
murder on Andre Naude (count 37), money laundering (count 77) and fraud (count
96). In his view this constituted mate rial change in his position in that the number
of counts against him had reduced, the potential sentencing exposure and the
weight of the case against him changed and the State no longer persisted with those
allegations against him. His personal cir cumstances, including a son with serious
lifelong medical and developmental conditions which included cerebral palsy and
autism spectrum disorder with associated learning and neurological difficulties
which required stable routine support and hands -on assistance were not new facts.
The fact that the child was becoming heavier and that the applicant’s father was
aging, are incidental to their growth and maturity and were not new facts under the
circumstances. It is simply going too far for the applicant to suggest that the fact
that he did not earn an income as he was in custody , which led to his financial
dependency on his aged father, was a new fact sufficient to move the scales of
justice as regards his bail on the facts. The failure to earn an income and the
collapse and closure of a business because of incarceration is the reality faced by
most sole proprietors or entrepreneurs.
[5] The applicant alleged receipt, whilst in custody, of chronic medication for
depression, bipolar -related symptoms and mood instability , insomnia and severe
back pain. It is only the back pain that he attributes to his alleged assault by
members of the Anti-Gang Unit at Bellville SAPS at the time of his arrest. Except
for the back pain, the other chronic ailments were not new and some had been dealt
with as early as in the first bail application in the regional court. Similarly, a stable
home and job offer were always available from the first bail application. In respect
of the home, it is only the addres s that has moved, from the home shared with the
wife and children to the father’s address. On the work front, from the brother and
one other to a totally different person who offered stable work.
[6] Detective C aptain Pieter Joubert (Joubert) is stationed at the Directorate for
Priority Crime Investigations (Hawks), National Priority Violent Crimes Unit,
Organised Crime in the SAPS. He is an investigating officer and part of the
national task team to investigate the killing of Kinnear, who was attached to the
Western Cape Anti -Gang Unit . Kinnear was shot and killed in his official
unmarked SAPS vehicle in front of his re sidence on Friday 18 September 2020 at
about 15H00 by an unknown assailant . Kinnear was involved with several high -
profile investigations featuring well -known underworld gang members and
affiliates to these gangsters, as well as police corruption matters.
[7] Investigations into his murder led to a cellular and data analytics company
based in Gauteng, able to do location-based station (LBS) tracking of cellular
devices through their unique cellular number. This service enabled the user to
establish the coo rdinates of a specific cellular number in relation to cell phone
towers and in turn , able to identify a specific location of the user of such cell
phone. Making use of this particular service was commonly referred to as pinging
the specific cellular number. A search and seizure warrant was executed at the
residence of the applicant and t hat of his father where several cellphones were
seized and analysed. An authorized section 205 subpoena was served on the said
data analytics company, and the applicant was identified as the user of the specific
pinging service who had hia own username and password. It was established that
the applicant as a user had pinged three different cell numbers of Kinnear since 20
April 2020 and that one of Kinnear’s cellphones was pinged a total of 2408 times.
It was also established that the applicant pinged Kinnears official cellular phone on
the day of his murder, already starting at 02H32 in the morning . From 13H20 the
number was pinged almost every 10 minutes and from 14H35 the pings increased
to an average of every 3 minutes. Kinnear was shot and killed at about 15H00. At
15H25, only about 25 minutes after the killing, Kinears cellphone was pinged for
the last time. This was also the last time that the applicant pinged Kinnear s
cellphone number or any other cellular number, a pinging which had been done for
several months since 20 April 2020, 2408 times. On that day, 18 September 2020,
applicant pinged Kinnear for a total of 35 times.
[8] In an initial interview with Joubert, the applicant’s version was that he was
asked by a person called Mohammed to trace and do surveillance on the wife of
Mohammed’s movements in Cape Town as she allegedly had an extramarital affair.
The applicant’s version then was that Mohammed had supplied him with different
telephone numbers of his wife and possible boyfriend for him to trace and report
back on their location. This request and all subsequent requests for pings , made at
different times during the day and night on whatssapp, were made from March or
April 2020 until 18 September 2020. The applicant would then do a search via an
application on his phone, supplied by the data and analytics company. He would
get Global Positioning Sattelite (GPS) coordinates and would send to Mohammed,
who used different cellular numbers during this period. The payments for his
services were made to his FNB account via eWallet. When he pinged Mohammeds
wifes number and that of the boyfriend on the da y of the murder, Mohammed had
told him that it was to enable the sheriff of the court to seize the wifes car. He last
pinged the wifes number at around 12H00 or 13H00 on the day of the murder and
assumed that the car was successfully seized as Mohammed never contacted him
again.
[9] In a later interview, in the presence of his legal representative, the applicant
changed his version, admitted that Mohammed did not exist and that the true
identity of the person was Nafiz Modack (Modack), accused 1 in the trial. He also
admitted that the payments made to him for all the pings done on Modacks
instructions were paid for by Ricardo Anthony Morgan, accused 15 in the trial.
Applicant indicated that 90% of the pings he did between March or April 2020
until 18 September 2020 were done at the request of Modack. Applicant knew that
some of the numbers he pinged belonged to members of the SAPS . Modack made
him believe that he (Modack) feared for his life from these SAPS members, was
harassed by different SAPS members and needed to know when they were on their
way to some of his properties. A total of R 5 251 029 -00 was deposited into
applicants FNB account for the period 19 June 2019 to 26 September 2020, and
R2 293 463- 73 of that amount was paid from 2 March 2020 till 26 September
2020, that is, the period he alleged he started doing work for Modack.
[10] On 12 September 2019 at 13H11 the applicant drew a Consumer Trace Report
(CTR) of Timothy Lotter (Lotter). The CTR contained information garnered
whenever a consumer applied for credit. It provided the co nsumers personal
information including the name, address, contact details, employment, income and
next-of-kin details. On 6 January 2020 Lotter was shot and killed at the N1 City
Mall, Goodwood. At some stage, Kinnear was the investigating officer of that
murder case. The applicant pinged the cellular number of Booth for a total of 658
times from 6 March 2020 until 18 September 2020 when all pings stopped. There
was an attempt on the life of Booth on 9 April 2020 where 5 shot s were fired at
him. It was during the period that the applicant pinged Booth’s phone. Applicant
pinged Booths phone from 03H35:37 in the morning on the day of the shooting.
The shooting occurred at approximately 07H00. The pings stopped shortly after
07H45:11. They continued the next day after the failed attempt to kill Booth and
continued until 18 September 2020. The applicant d rew a CTR on Booth on 10
April 2020, a day after the failed attempt.
[11] The applicant pinged the cellular number of Jerome Booysen (Booysen), also
known as Donkey , an alleged leader of the Sexy Boys gang. Applicant pinged
Booysen for a total of 193 times since 6 March 2020 at 09H54: 19 up until 17
September 2020 at 11H18:52. Applicant drew a CTR and an identity photo
verification report on Kinnear’s wife on 20 April 2020 as well as on the 3 phones
of Kinnear. The cellphone of the applicant revealed th at Kinnear’s 3 numbers had
been forwarded to the applicant’s phone and included a description of Kinnear as
Colonel Kinnear Provincial Detective. The applicant pinged the cell number of
Sergeant van der Horst, a colleague of Kinnear who assisted Kinnear wi th
investigations for a total of 71 times from 20 May 2020 until 18 September 2020.
Cellphone analysis showed that the applicant removed a sim card from the cellular
device that he used on the day of Kinnear’s murder just after 17H00 the same day.
[12] The information that applicant sourced was forwarded to different cellular
phones used by Modack, on the WhatsApp platform. Bradley Goldblatt supplied
the location-based service pings to the applicant. Applicant told Goldblatt that he
was employed and used the said platforms to ping for Modack. The State case is
that the 72% of the pings made by applicant were of people in conflict with or in
opposition of Modack . These included members of the AGU in the SAPS who
were investigating Modack, prominent al leged underworld figures on which
attempts were made on their lives or were murdered as well as witnesses who
would have testified against Modack . Whilst the applicant claimed to be a debt
collector, none of these individuals had any debt to be collected from them.
Financial records of Morgan revealed that large sums of money flowed between
him and applicant, with reference Masks. The evidence also revealed money flows
between applicant, Morgan and companies called Modack Tactical and Empi re
Investments, known to be controlled by Modack and his brother Yaseen.
[13] Edward Du Plessis (Du Plessis) is a Captain at the Hawks National Office and
was part of the investigating team. He considered downloads from 3 cellphones
seized from the applicant. The accused used 1 sim card for two of the phones. On
the 3rd phone, applicant swapped sim cards, with one used until 20 September 2020
replaced with another from 21 September 2020 until his arrest. There were CTR
reports from Credit Bureau , WhatsApp images which included photos and screen
grabs on the downl oads which remained after the conversations were deleted on
the phone itself. Du Plessis also received a ping list from Goldblat t who was from
the company the applicant used for the location -based station tracking of cellular
devices. The ap plicant researched Booth from 10 March an d forwarded the
information to another user , including Modack. The information sent by applicant
included Booth’s home and work address , including Booth’s whereabouts on
different dates and anticipated times of arrival home from where he was located .
The downloads also showed that applicant researched Kinnear and his wife ,
including having 4 cellphone numbers associated with Kinnear. Applicant not only
tracked Kinnear by his cellphone but was also involved in the physical surveillance
on Kinne ar. The research included the period that Kinnear was in Gaunteng ,
including the Lodge where the investigation team stayed and another member of
the team, Horst.
[14] Section 60(11)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977)
(the CPA) provides:
60 Bail application of accused in court
(11) Notwithstanding any provision of this Act, where an accused is charged with an offence-
(a) referred to in Schedule 6, the court shall order that the accused be detained in custody
until he or she is dealt with in accordance with the law, unless the accused, having been given a
--
reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her release;
The continued detention is the norm in schedule 6 matters . The applicant must
satisfy the court that exceptional circumstances exist [ S v Dlamini; S v Dladla and
Others; S v Joubert ; S v Schietekat 1999 (4) SA 623 (CC)]. An applicant is
required to adduce convincing factual evidence to support any contention that the
considerations in sections 60(4)(a) to (e) do not apply in the circumstances of their
case [Conradie v S (A248/2020) [2020] ZAWCHC 177 (11 December 2020) para
18]. In an application like the present, there must not only be new facts or changed
circumstances placed before the court . It must be new facts or changed
circumstances that legitimately warrant the granting of bail previously refused [S v
Mpofana 1998 (1) SACR 40 at 44g-i; S v Mohammed 1999 (2) SACR 507 (C); S v
Yanta 2023 (2) SACR 387 (WCC) at para 12 to 15]. Reshuffling of old evidence or
seeking to address problems encountered in the previous application or filling gaps
in the previously presented evidence is not enough [ S v Peterson 2008 (2) SACR
355 (C) para 57; S v Mbuyane 2024 JDR 3741 (MM)].
[15] The premeditated and often planned killings of members of the South African
Police Services (SAPS), especially those involved in the investigation of organized
crime including corruption , as well as the murder of legal practitioners, both
prosecutors and defence lawyers, especially those involved in t he scientif ic
scrutiny of conduct which tends to include crime including corruption, perceived
competitors, State witnesses and all those deemed to be acting against the criminal
enterprises, in recent years, require special attention by the courts , as a conscience
of society. It was clear that the movement of the person pinged at a particular
moment was crucial, which suggested meticulous planning and the centrality of the
role played by the person pinging , the applicant . The evidence set out paint s the
applicant as an integral part of a criminal enterprise carrying out murders and
attempted murders and was also instrumental in the flow of money through ewallet
of FNB. He may not have been the one pulling the trigger s, but justice demands
that he awaits the verdict with patience.
[16] The evidence suggested that the applicant, with his devices and skill, was used
to l ocate, monitor and record movements of the deceased and other persons of
interest to Modack . T he evidence suggested that the applicant, Morgan and
Modack acted with a common purpose to trace and locate Kinnear and Booth. A
section 174 discharge on 4 of the 41 charges, where 37 others remain which were
very serious and related to a central role in the tracking and surveillance of
investigating officers, lawyers , perceived competitors and witnesses, intended to
facilitate their killing by an alleged ly corrupt criminal enterprise , was not
information which may affect the strength of the State case against the applicant.
This is a matter where one hopes that the applicant’s legal representatives would
encourage the applicant’s father to approach social workers and the Department of
Education in his precinct to investigate the circumstances of the child as regards
special educational needs and psycho -social intervention. The facts of applicants
discharge in terms of section 174 of the CPA on 4 charges may meet the first leg of
the enquiry, in that they did not ex ist at the time of the previous bail application
and must be properly considered in this subsequent hearing [ S v Johannes 2025
JDR 1638]. However, all the facts and factors considered as a whole fail the second
leg of the enquiry, in that they do not legitimately warrant the granting of bail. I am
not persuaded that the applicant met the test of new facts as envisaged in an
application of this nature. For these reasons I am making the order.
…………………………………..
DM THULARE
JUDGE OF THE HIGH COURT