Joshlin Smith trial: Defence argues accused not informed of rights before questioning

Defence attorney Nobahle Mkabayi for Stevano van Rhyn, accused number 2 in the case, on Wednesday argued that his client was not informed of his rights before questioning.

The cross-examination of Sergeant Dawid Fortuin in the disappearance of Joshlin Smith continued in the Western Cape High Court in Saldanha on Tuesday.

Joshlin disappeared from the family’s home in Saldanha Bay on 19 February 2024.

Joshlin’s mother Racquel “Kelly” Smith, her boyfriend Jacquen “Boeta” Appollis, and his friend Van Rhyn have been arrested and charged with kidnapping and human trafficking.

They have pleaded not guilty to the charges.

A trial within a trial is ongoing to determine whether the confessions made by the accused can be used in the main trial. The defence has argued that the accused did not willingly make confessions, with allegations of assault made against police officers.

Van Rhyn’s rights ‘violated’

On Wednesday, Mkabayi told the court Van Rhyn was not informed of his rights before his interview with Fortuin, making the entire process questionable.

Fortuin, however, told the court he did inform Van Rhyn of his rights.

“Yes, I explained the rights to the accused,” said Fortuin.

“I informed him that he has the right to remain silent, anything he says can be used against him in the court of law, he has the right to legal representation, if he cannot afford one, then he can apply with legal aid, there is an attorney the state provides you with if you qualify or you can choose to represent yourself.”

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Mkabayi said it was not so.

“I listened to your rights. There is a right you didn’t explain to my client, and that right is crucial in the circumstances. You didn’t explain to my client that he has the right not to be compelled to give evidence or a statement,” said Mkabayi.

“I informed him he has the right to remain silent, which means he doesn’t have to inform me anything,” responded Fortuin.

“The right to remain silent stands alone. These are two different rights. You said you explained rights to my client at about half past 10, I put it to you that those rights were late. You had already violated them,” she said.

“Accused number 2 was not a suspect; he was a person of interest. When he mentioned something about Kelly, I explained his rights, that he has the right not to self-incriminate,” responded Fortuin.

“When you were explaining rights to my client, he had already spoken. And when he was speaking, you never warned him that whatever you tell me can be used against you in the court of law. Please keep quiet,” said Mkabayi.

“At that stage, the accused did not implicate himself. The moment he mentioned Kelly’s name, I explained his rights immediately,” said Fortuin.

“This is not about him implicating himself. There are safeguards put in place so that someone can’t even implicate themselves. They [rights] were late and as good as not being explained to him. At that stage, it was irrelevant for my client to appoint an attorney because he had already spoken to you,” the attorney said.

Joshlin Smith trial: Was suspect assaulted?

Mkabayi further accused police officers of assaulting Van Rhyn, an accusation denied by Fortuin.

“In the boardroom, he was assaulted repeatedly. He was beaten on his feet and knees,” said Mkabayi.

“I did not see anything,” said Fortuin.

“Just because you didn’t see it doesn’t mean it’s untrue. His head was covered with a plastic. He was sweating and suffocating,” she continued.

“It is untrue,” responded Fortuin.

The trial continues.

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