The first day of the leave to appeal hearings in the Joshlin Smith case ended in drama on Tuesday, as defence lawyers for two of the convicted accused attacked the court’s judgment, while the State pushed for immunity for a controversial witness.
Defence and State clash over convictions in Joshlin Smith case
Kelly Smith, the mother of six-year-old Joshlin, her boyfriend Jacquen Appollis, and friend Steveno van Rhyn were convicted earlier this year of kidnapping and human trafficking after Joshlin vanished from her Saldanha Bay home in February 2024.
On Tuesday, the Western Cape High Court heard lengthy arguments from defence lawyers Advocate Fannie Harmse (for Appollis) and Advocate Nobahle Mkabayi (for Van Rhyn), both arguing that their clients’ trials were unfair and that confessions used in court were coerced.
Advocate Harmse focused on Appollis’s alleged confession, arguing it was obtained through coercion and should not have been admitted.
He criticised the court for accepting the State’s version over that of a witness who saw Appollis in good condition before police took him into custody.
Harmse also attacked Section 204 witness Lourentia Lombaard’s credibility and questioned why another person implicated in testimony — Phumza “Ma Ka Lima” Sigaqa — was released without charge.
Advocate Mkabayi argued that Van Rhyn’s arrest was unlawful because it was done without a warrant, and that key arresting officers never testified. She said her client’s alleged confession was taken while he was injured and possibly tortured.
“A bleeding man has no will. Any statement from a tortured person is inadmissible,” she told the court, adding that officers failed to explain Van Rhyn’s rights before questioning.
Mkabayi also criticised the State for only giving the defence the full docket two weeks before trial, calling it “unconstitutional” and saying it gave them too little time to prepare.
Judge Erasmus pushed back against the attacks, reminding both lawyers that the court had to consider all the evidence together, and that both Appollis and Van Rhyn were found to be unreliable witnesses during the trial.
Proceedings ended early when Mkabayi said she was feeling unwell.
Immunity bid for State witness
The day began with Advocate Eben van Tonder motivating why Lourentia Lombaard, the State’s Section 204 witness, should be granted immunity from prosecution.
Van Tonder argued that Lombaard answered questions “frankly and honestly” during her testimony, even though she faced extreme pressure and media scrutiny. He acknowledged inconsistencies between her first statement in March 2024 and her later testimony in October, but said this was due to her loyalty to Kelly Smith at the time, Tik (methamphetamine) use, and a promise of R1 000 to keep quiet.
By October, Van Tonder said, Lombaard had broken ties with Smith, was sober, and was gripped by guilt — which led her to testify against the accused. He argued her account was supported by other witnesses and matched the State’s circumstantial evidence.
Judge Erasmus questioned the contradictions but agreed to set her matter aside for a ruling after hearing the appeal arguments.
The hearing will resume on Wednesday, when Erasmus is expected to rule on both the leave to appeal applications and Lombaard’s immunity request.