Cape Town – Alleged underworld figure Nafiz Modack is pushing for Judge Mark Sher to recuse himself from presiding over his upcoming trial for defrauding the South African Revenue Service (SARS) of R46 million. The application was made on the grounds that Judge Sher had previously presided over Modack's bail appeal in a separate, high-profile murder case.
Modack, who was arrested by the Hawks in 2020, faces serious charges relating to tax fraud. His legal representative, Advocate Bash Sibda, argued in court on Thursday that in order for his client to receive a fair trial, Judge Sher must step down from the matter.
The core of the recusal application centres on the perception of bias, stemming from Judge Sher's previous involvement in Modack's bail application in March 2023. This bail application was related to the case where Modack is accused of murdering Lieutenant-Colonel Charl Kinnear, a prominent police officer.
Court documents submitted as part of the recusal application highlight Judge Sher's previous assessment of Modack. The judgment from the bail appeal stated: “In my view, …Modack [is]… a danger to society and needs to be kept inside a correctional facility, pending the outcome of their trials.”
Advocate Sibda argued that this prior judgment could create a perception of bias in the eyes of the public, potentially undermining the fairness of the tax fraud trial.
Sibda stated in his recusal application: “The thrust of my argument is only on the perception. The reason for the possible apprehension of the public is not something that they conjured up; it rests firmly on the very objective reality of the findings of the bail application [appeal].”
The defence is arguing that the public's potential apprehension about the fairness of the trial is not based on speculation, but rather on the "objective reality" of Judge Sher's previous findings regarding Modack's alleged danger to society.
Judge Sher acknowledged the importance of ensuring Modack receives a fair trial and agreed that considering the recusal application was the right and proper course of action.
The State has indicated that they will consider their position on the recusal application. A decision on whether Judge Sher will recuse himself is expected to be delivered in July.
The trial is currently scheduled to begin on 28 July. The outcome of the recusal application could have significant implications for the timeline and conduct of the trial.
The Kinnear murder case, in which Modack is accused of playing a central role, has also garnered significant attention. Kinnear was assassinated in September 2020, and his murder exposed alleged links between organised crime and elements within the police force.
The outcome of the recusal application will be closely watched by legal experts and the public alike. The principle of judicial impartiality is a cornerstone of the South African legal system, and any perception of bias could undermine public confidence in the administration of justice.
If Judge Sher recuses himself, another judge will be appointed to preside over the tax fraud trial, potentially leading to delays in the proceedings. If the recusal application is denied, the trial will proceed as scheduled, with Judge Sher overseeing the proceedings.
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