3 days ago
Prosecutors' pyrrhic victory with Joshlin still missing
CAPE TOWN - It's been just over a week since Kelly Smith, Jacquen Appollis and Steveno Van Rhyn were sentenced to life behind bars for the kidnapping and trafficking of Joshlin Smith.
The little girl was reported missing on 19 February last year.
She has still not been found.
This marked a test case in South Africa as the state had no victim to present to court.
eNCA reporter Ayesha Ismail sat down with the two prosecutors who secured the three convictions.
This as lawyers for some of those convicted, indicate they'll be appealing the sentence.
Different criteria are used when deciding on allocating a specific case to a prosecutor.
As the National Prosecuting Authorities head for trafficking in persons in the Western Cape, Advocate Zelda Swanepoel was the obvious choice for the Joshlin Smith case.
Swanepoel needed a strong team to help her crack this case and included Advocate Heeramun during the trial.
Swanepoel said, "H ow Advocate Heeramun became involved because at the time I was her advisor we are in the organised component of the DPPs office and it was the logical choice to include her as part of the team she has dealt with high profile cases in the past and I believed we could make a good team and we brought different virtues and capabilities to the team.'
The two prosecutors understood the challenges of not having a victim to testify.
Swanepoel explained, "It was the first time that we used trafficking in persons, where a child was sold and had not yet been recovered. There were three other previous reported cases, two in the High Court in Pretoria and one in Pietermartizburg.'
Those three cases involved traps or undercover operations. Police were notified of a transaction taking place. A police agent negotiated the sale and the accused were arrested the minute the child was handed over.
This was the first case where there was no victim or body to present to court.
The focus had to be on the sale of the child. Heermun said, 'We then had to decide on the credibility, on the admissibility, and how to best present it in court."
"You have to anticipate every possible angle the defence might come at your case and prepare in fact and in law for those arguments.'
Balancing the evidence and the emotions wasn't always easy. VIZ@ the two prosecutors in court
Swanepoel says trafficking in persons is the most challenging case to prove in court due to the vulnerability of the victims.
She says prosecutors have to be strong for their victims.
So, was Joshlin sold to a sangoma by her mother for R20,000 or was she taken to a woman called Ma Kalima by Jacquen Appolis and Steveno Van Rhyn on Kelly Smith's instructions?
Swanepoel said, "Our argument is it's irrelevant to whom Joshlin was delivered because that is in fact the only contentious part in the evidence."
"It was however, and this is the evidence that the court accepted, that there was an agreement, there was a plan to sell Joshlin, there was an agreement to sell Joshlin, there was even an agreement on the price. All four of the parties, and I include Miss Lombaard, all four of the parties agreed to the selling of Joshlin. All agreed to the benefit they were going to get and the roles they were going to play and that is what the court found .'
