IN-DEPTH: Legality of 'clandestine' recordings in Modack case questioned

2018-05-30 13:02
Nafiz Modack. (Jenna Ethridge, News24)

Nafiz Modack. (Jenna Ethridge, News24)

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Audio clips and a recording of a meeting have become a focal point in suspected underworld kingpin Nafiz Modack's extortion case, with claims and questions being raised about how they were obtained.

On Monday it emerged that Modack, who appeared in the Cape Town Regional Court along with four others, faced a charge of illegally intercepting certain cellphone calls to allegedly try and defeat the ends of justice.

An amended charge sheet in the case reflected this charge.

READ: Suspicions of illegally-intercepted cellphone calls surface in Modack extortion case

Modack's legal team is yet to respond in court to the amended charge sheet.

He is accused of extortion and other charges along with veteran bouncer Jacques Cronje, Carl Lakay, Ashley Fields and Colin Booysen – the brother of suspected Sexy Boys gang boss Jerome Booysen.

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

Modack and his four co-accused were arrested on December 15 and were eventually released on bail on February 28 following an intense and drawn-out application to be freed from custody.

Several recordings were played and referred to, by both the defence and the State, during this bail application which was heard in the Cape Town Magistrate's Court.

The law relating to the interception of communication applies differently to those enforcing the law, for example, the police.

Meeting recorded

Colonel Charl Kinnear, the investigating officer, previously referred to a recording of a meeting between Modack, Major General Jeremy Vearey, who headed the Cape Town cluster of police stations at the time, and a former State Security Agency official Russel Christopher, who trained with Vearey in the ANC's intelligence structures prior to 1994.

In this recording, Modack, according to Kinnear, said two high-ranking officers – Major General Mzwandile Tiyo, the Western Cape's head of Crime Intelligence, and Major General Patrick Mbotho, previously a provincial head of detectives – could sort out problems he faced.

On Tuesday, Modack told News24 he had not consented to the recording of this meeting and was under the impression it was agreed that it would not be recorded.

In January, during the bail application, Kinnear had also testified that there was a recording of a conversation with Modack and a man in Serbia – this man, who he did not name, was George Darmanovic, a contract state security agent who was murdered in Serbia earlier in May.

Part of a recorded conversation Modack had, apparently with Darmanovic, had been played during the bail application.

On Tuesday, Modack told News24 that he had never given permission for this recording to be played in court.

Audio clips of potential witness

The charge of illegally intercepting communication which he faces stems from recorded cellphone conversations between Modack and Radley Dijkers, a potential witness in the extortion case, in which Modack asked Dijkers several questions.

At one point in a recording Dijkers could be heard replying: "There was no intimidation or anything like that at all."

Kinnear had also played an audio clip of a conversation between himself and Dijkers.

In this clip, Dijkers told Kinnear he had said what he had to Modack as he felt threatened.

Modack faces charges under the Regulation of the Interception of Communications and Provision of Communication-related Information Act.

Illegal interception law

The act states that "no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the court of its occurrence or transmission".

However, the charge sheet in the Modack case said that this needed to be read with other sections of the act.

One of these sections said that any person, other than a law enforcement officer, could intercept any communication if they were part of the communication.

This was also the case if one of the parties had given consent in writing before the interception took place.

However, the act pointed out that neither of these two forms of interception may happen "for purposes of committing an offence". 

According to the charge sheet in the case against Modack, it alleged he had intercepted communication to either defeat the ends of justice, or to try and defeat the ends of justice.

In the case of a law enforcement officer, it said an officer could intercept any conversation if they were party to it and were satisfied there were reasonable grounds to believe that, among other reasons, a serious offence had been, or would be, committed.

Modack and his four co-accused are expected back in the Cape Town Regional Court on June 12.

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Read more on:    nafiz modack  |  cape town  |  courts  |  underworld

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