Advocate Mkabayi seeks to overturn conviction in Joshlin Smith case due to procedural flaws
Image: Ayanda Ndamane / Independent Newspapers
Advocate Nobahle Mkabayi, representing Steveno van Rhyn in the Joshlin Smith case, argued before the Western Cape High Court that her client's conviction should be overturned on grounds of procedural irregularities, unfair trial, and the use of a coerced confession.
She complained about the State's key Section 204 witness, Lourentia 'Renz' Lombaard, who only returned to court three months after the conviction, raising questions about the reliability and management of the evidence.
'The miscarriage of this matter started on 31 January 2025. We appeared before the court bare-handed and clueless, with no contents of the docket, yet the matter was set down,' Mkabayi said.
She argued that the case's pre-trial phase was fundamentally flawed because the defence was denied timely access to the State's evidence.
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'The State knew the attorneys, yet the details were never furnished before the pre-trial. When we arrived in court, my client was not there. This failure delayed the invocation of vital procedures and shadowed the appearance thereafter.
'As if that wasn't enough, we were burdened to climb the mountain to fetch the contents of the docket ourselves. It is unconstitutional to shift that duty to the defence. That is an affirmative duty of the State. We didn't climb one mountain, but more than that.'
According to Mkabayi, the defence only received the docket contents about two weeks before trial, insufficient time to view video evidence, consult witnesses, and prepare a defence.
'Two weeks can never be enough. We perused the contents only to discover it was incomplete.'
Judge Nathan Erasmus asked whether this issue should have been raised during the trial. Mkabayi said it had been raised, albeit not as a formal application.
Van Rhyn was convicted of kidnapping and human trafficking along with Joshlin's mother, Racquel 'Kelly' Smith, and her boyfriend, Jacquen 'Boeta' Appollis, after the six-year-old went missing from her Middelpos home in Saldanha Bay on February 19, 2024.
She further argued that her client's arrest on March 4, 2024, was unlawful, as the arresting officers did not have a warrant and never testified to explain the circumstances.
'Those are the real arresting officers. The omission to call them to testify is compelling,' she said.
Erasmus noted that the accused did not dispute the officers' absence from the witness stand and asked whether an unlawful arrest automatically translated to an unfair trial.
Mkabayi responded that her client had consistently tried to highlight what happened to him, including claims of torture.
She stressed that the first doctor to examine him 'did not rule out' that his injuries were consistent with torture, yet Captain Philip Seekoei still took a confession from him.
'I submit any statement coming from a tortured person is inadmissible — a bleeding man has no will,' she said.
She added that before the confession interview began, officers were present but never explained her client's rights, including the right to remain silent, the right to legal representation, and the right against self-incrimination.
When Erasmus asked where that evidence was in the main trial, Mkabayi said it had been given during the trial-within-a-trial and 'was not erased'.
She accused the court of failing to make an explicit ruling on the admissibility of the confession after the trial-within-a-trial, stating: 'The court was silent on that point. I counted more than 37 interferences by the court during proceedings. The confession, the statement taken from an injured person, cannot be considered voluntary. It was improperly obtained, and suffocation was used.'
mandilakhe.tshwete@inl.co.za
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