The trial of an aggrieved investor from Durban, who sought Nafiz Modack’s intervention to retrieve funds from a Cape Town asset manager, faced a delay on Thursday. This pause occurred as the court awaited authentication of certain text messages exchanged during the incident, leading to a potential trial-within-a-trial scenario at the Western Cape High Court.
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The issue of text messages arose during Thursday morning’s proceedings, prompting concerns about their authenticity raised by Modack’s legal representative, Bash Sibda. Sibda contended that some messages might be deemed hearsay as their authors were not slated to testify.
The prosecution countered, suggesting that the authors, likely associates of Modack, would be reluctant to testify against their own interests. However, presiding Judge Robert Henney emphasised the imperative for all relevant parties to testify, with rare exceptions such as individuals incapacitated by death or memory-related illnesses.
Judge Henney underscored the legal consequence of failing to testify, stating, ‘In South Africa, if a witness fails to testify, you lock [them] up for four days at a time.’
Following this discussion, the court recessed for the prosecution to strategise.
After lunch, the prosecution announced a breakthrough: they had secured the presence of the three message authors as witnesses for the following week.
One of the identified witnesses is reportedly a police officer based in Durban, while the other is Gary Newmark, a lawyer who previously testified in the trial and is now being called back to the stand.
Shanil Maharaj, the investor, provided testimony remotely from Durban via Teams. He recounted his experience of losing R545 000 in an unsuccessful investment facilitated by asset manager Mr C.
Despite Maharaj’s plea for reimbursement, Mr C refused, attributing the investment failure to Maharaj’s alleged request for a high-risk portfolio.
Feeling aggrieved and financially strained, Maharaj sought advice in Durban on how to recover his funds.
Maharaj testified that he obtained Modack’s contact through a mutual acquaintance and reached out to him seeking assistance.
As per Mr C’s testimony, he was enticed to a meeting at a hotel in Century City, Cape Town, on 9 March 2020. At this meeting, Modack’s co-accused, Jacques Cronje, posed as a farmer interested in investment opportunities.
During the meeting, Cronje demanded that Mr C repay Maharaj an amount totalling R2.4 million, representing the projected growth of the initial R545 000 investment had it not failed.
Under this arrangement, Modack was slated to receive a 20% handling fee.
However, Mr C contested the R2.4 million demand, stating that Cronje, in constant communication with someone referred to as ‘Boss,’ coerced him into drafting and signing his acknowledgment-of-debt letter for approximately R600 000.
As per the agreement, Mr C was to immediately transfer R90 000 from his laptop at the hotel into Cronje’s personal Capitec account. However, Mr C encountered difficulties in processing the bank transfer, as his bank, FNB, initiated a fraud check before completing the transaction.
Allegedly, Cronje compelled Mr C to drive to his residence in Claremont, accompanied by three intimidating individuals trailing them in a car. The purpose was for Mr C’s wife to co-authorise the transaction at the bank’s request.
Subsequently, Cronje departed, expressing trust in Mr C’s commitment to settle the amount. However, the transfer was never executed.
Following this, the exchange took a menacing turn, with escalating threats and intimidation via text messages. These ranged from crude insinuations of violence, such as rape and threats to harm Mr. C’s family, to aggressive acts such as throwing stones at his window and incessantly ringing his doorbell.
Distressed, Mr C enlisted the legal aid of attorney William Booth. Booth proceeded to secure a protection order against Maharaj and Cronje and assisted Mr C in filing a report with the police detailing charges of kidnapping, extortion, and intimidation.
Cronje’s arrest on 2 April halted the barrage of threatening messages; however, Maharaj persisted in his communications. During Mr C’s cross-examination, Cronje maintained that his intent was not to intimidate but rather to ‘encourage Mr C to fulfil his financial obligations.
However, from Maharaj’s perspective, Mr C’s actions amounted to a scam, and he remained steadfast in his pursuit of restitution.
Subsequently, Mr C received messages pressuring him to withdraw the complaint against Cronje, under threat of repercussions. While Mr C expressed a desire to comply, the investigating officer, the late Charl Kinnear, insisted on seeing the matter through to its resolution.
During Thursday’s proceedings, the court was informed that one of the messages directed at Maharaj conveyed Modack’s dissatisfaction with the R50 000 spent on legal fees to secure Cronje’s bail. Allegedly, Modack demanded reimbursement of this amount from Mr C.
Furthermore, Modack purportedly provided Maharaj with the contact details of a police officer in Durban, suggesting that the officer would aid in Maharaj’s endeavour to have Mr C arrested.
Following Maharaj’s complaint of theft under false pretences, law enforcement authorities conducted a raid on Mr C’s residence in Cape Town, deploying assault rifles and K-9 units, resulting in Mr C’s arrest.
Subsequently, Booth intervened and successfully facilitated Mr C’s release.
Exactly one month after the Century City meeting, Booth narrowly escaped harm when his garage in Higgovale, Cape Town, was targeted in a shooting incident. Despite the barrage of five gunshots, Booth emerged physically unscathed. This attempted murder is listed in the indictment against Modack and his co-accused, alongside the murder of Kinnear on 18 September 2020.
Meanwhile, Mr C sought refuge in Dubai with his family, according to News24.
Additionally, the State achieved the acceptance of Hawks Captain Eddie du Plessis as a witness regarding location pinging.
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Picture: Theo Jeptha / Gallo Images