Joshlin Smith trial: ‘I’ve made an order,’ judge tells defence as proceedings get tense

On Thursday, proceedings started on a tense note as Judge Nathan Erasmus admonished Stevano van Rhyn’s defence attorney, Nobahle Mkabayi, over video evidence in court.

Mkabayi continued the cross-examination of Captain Philip Seekoei in the disappearance of Joshlin Smith in the Western Cape High Court in Saldanha.

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.

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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.

Mkabayi: Accused was ‘sleeping’

On Thursday, Mkabayi insisted that Van Rhyn was not fully aware of what was happening when Seekoei interviewed him.

She argued that her client was sleeping during the process.

“What did you observe during the interview? Most of the time, he was sleeping, closing his eyes. He would open his eyes and immediately close them. He was clearly drowsy,” Mkabayi asked Seekoei.

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However, Seekoei argued that “closing his eyes does not necessarily mean he is sleeping.”

“But it also does not mean he is not sleeping. Did you confirm that he was not sleeping? Did you ask him? So you cannot come to this court and say that just because he was closing his eyes, he was not sleeping,” said Mkabayi.

“He was not sleeping,” insisted Seekoei.

“Most of the time, my client would look down, close his eyes, sleep and appear drowsy, but despite that, you continued. Is it because your instruction was to come and take a confession?

“While there was no necessity on your side [to stop the interview], did you believe that he was understanding what you were doing while clearly drowsy?”

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Seekoei responded: “He did understand what I was doing; the accused interacted and answered my questions, and by show of his movements, he interacted. He was not sleeping. While I was busy explaining his rights to him, he was nodding his head, giving an indication that he understood what I was explaining to him.”

“My observation from the video is that he was sleeping with his eyes closed. He put his right hand on his face,” claimed Mkabayi.

‘Which video is it?’

Judge Erasmus suggested replaying the interview video to observe the accused’s hand movements.

The video showed no such movements, and things got tense from there.

“You put it to the witness that the accused lifted his hand in front of his face. I didn’t see it,” commented Judge Erasmus.

“My lord, that is video number 2,” said Mkabayi, suggesting that the hand movements would be observed in another video.

However, this did not sit well with the judge.

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“But we’re on video number 1. We played it earlier, and you put it to the witness that he had put his hand in front of his face. I couldn’t see it on the screen. The witness has a laptop in front of him, and you’ve got a laptop in front of you, and prosecutors have a laptop in front of them. I went through all the trouble because we were dealing with video 1, and where we are in the document, it’s this video, video 1. Why wasn’t I told that we’re now going to video 2?” asked Judge Erasmus.

“Now we’re on video 1,” responded Mkabayi.

“We are on video 1. You had put it to the witness that the accused was sleeping, his eyes were closed, and he had put his hand in front of his face. Unless we’re watching a different video, I don’t see it on my laptop, I don’t see it on the screen between those minutes,” said the judge, to which Mkabayi responded: “That occurrence will be on video 2.”

“But you put it to the witness just now, that’s why I said I didn’t see it, let’s replay. So, can you rephrase the question?”

‘Is the court answering questions for the witness?’

Mkabayi withdrew the question about the accused’s hand movements and moved on to questions about his facial expressions.

She insisted that her client’s eyes were closed during his interview with Captain Seekoei.

“From the video, what’s your observation?” she asked the captain, to which he responded: “It looks like his eyes are closed.”

However, the judge said his observations of the same video were different.

‘Not what I see’

He said, “I could see his eyes opening and closing. I could see the eyelids moving. I could also see him pulling his lower lip, and I could see facial expressions. It might be that on the device you’re watching and that screen, as if the eyes are closed, but I could specifically see eye movement.

“Yesterday, there was also mention made of the eyes closed, so once we get to arguments, we’re going to have these devices available because I went to look at some of those again last night. I don’t know whether we’re using the same video, but my take on it may differ from what counsel perceives it to be.

“It’s real evidence before the court; it was admitted as real evidence. I don’t need a witness to interpret real evidence for me, but we can go through it. But I don’t necessarily see it on my device, which I have open in front of me.

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“I have a crisp picture, and I don’t know whether it’s helpful for the witness to comment on what he sees there because this is evidence. The exhibit was handed in. The registrar uploaded the exhibit using the link we created for this case.

“I’m viewing it by looking at the exhibit by utilising technology. So, we have the exhibit on the judiciary’s SharePoint. When I access it as I’m accessing it now, all I do is I link to what’s on the record, so I’m looking at it as it is in the record, except because of the device I’m using, it’s in a high resolution that gives me a much better quality than what we could see on the screen.

Judge to Mkabayi: ‘I’m disallowing the question’

“Also, I have the ability to zoom in. So, Mrs Mkabayi, I’m going to disallow the question because that’s not what I see on the exhibit. Whatever the opinion of the witness is that he sees is not what I see, and what’s important is what I see on the exhibit.”

The judge’s comment did not please Mkabayi, who requested further clarification on why the judge disallowed her question.

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“With due respect, I would humbly request the court to clarify. Now I’m confused. I don’t know whether the court is answering the questions for the witness,” said Mkabayi.

The judge responded, “I am not answering the question for the witness. I gave you reasons why I am disallowing the question. I’ve made an order; you may continue. If you want me to make a special entry in terms of section 317 of the Criminal Procedure Act, please bring the application.”

The trial continues.