On Wednesday, Mkabayi attempted to argue that her client was unfairly tried and laid several allegations against Judge Erasmus.
Proceedings in the Western Cape High Court started on a tense note on Wednesday as Judge Nathan Erasmus called on Advocate Nobahle Mkabayi, representing Steveno van Rhyn, to stop “twisting facts”.
The legal representatives of Joshlin Smith’s mother, Racquel “Kelly” Smith, along with her accomplices, Jacquen “Boeta” Appollis and Van Rhyn, are applying for leave to appeal the convictions.
Joshlin disappeared from the family’s home in Saldanha Bay on 19 February 2024, and police are still searching for her.
In May, Judge Erasmus sentenced them to life in prison for human trafficking and 10 years for kidnapping.
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On Wednesday, Mkabayi attempted to argue that her client was unfairly tried and laid several allegations against Judge Erasmus.
Mkabayi vs Erasmus
Mkabayi argued that the court failed to determine the nature of her client’s statement before the trial.
“After the trial was concluded, the court failed to make a ruling on whether the evidence that was admitted amounted to an admission or a confession,” said Mkabayi.
However, Judge Erasmus asked Mkabayi to point him to a law that says it is his duty to do so.
“Give me authority to say that after I’ve heard the evidence in the trial within a trial, and given a ruling on admissibility, that I must declare what the nature of that statement is – whether it’s a confession or mere admission. Where is the authority for that proposition? If it’s tried law, give me the authority,” he said.
Mkabayi said she would provide the authority “during break”, to which Judge Erasmus said: “No, I want it now.”
Mkabayi conceded she did not have the authority at the time, but insisted it had been tried before.
“It is tried. I might not have the authority now, but that does not mean it’s not the law. I know, I will give the court the authority to that effect,” she said.
However, Judge Erasmus was not impressed.
“You took a few hours yesterday, and you still said nothing until now. I’m telling you that because we’re in arguments now, this is not dealing with witnesses. I’m engaging counsel on arguments, and, normally, arguments are even more robust,” he said.
“I’ve been patient, but I’m not going to allow counsel to make propositions on the law without giving me the authority and then telling me it’s tried. If it’s so tried, it must be at your fingertips, and in today’s day and age, it’s a quick press of a button.”
‘You said my client’s testimony was bad’
Mkabayi further argued that her client’s testimony was no worse than Lourentia Lombaard’s and yet aspects of hers were considered credible.
Not backing down, Judge Erasmus said that calling Van Rhyn’s testimony bad was putting it lightly.
“He was terrible as a witness,” he said.
“My submission is that his testimony was not bad, more than the testimony of 204. It was not worse than the police brutality,” she said, further accusing the judge of threatening her client during court proceedings.
The judge took issue with Mkabayi bringing the allegation now when she could have asked for a special entry on that when she had the opportunity.
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“Let’s just pause by your submission that I threatened your client. What would have been your cause if that had happened in your presence as his legal representative? Should you then not have asked for a special entry if it happened, of course?
“I invited you on more than one occasion to file a special entry in terms of section 317. You didn’t do that. I invited you, but you didn’t do that. Now you come, I don’t know whether you’re playing to the gallery, and you say I threatened your client, but you didn’t make a special entry. Is that correct?”
Mkabayi said she did not hear the instruction at the time.
“I thought it was for something else.”
‘Twisting the facts’
Mkabayi accused Judge Erasmus of constantly threatening her client, telling him he would struggle during cross-examination.
“When he was giving evidence to the court, you continuously told my client that ‘Miss Swanepoel will make a field out of you’. When I was cross-examining him, the court was interjecting, threatening that ‘Miss Swanepel will make a field out of you’,” she said.
However, Judge Erasmus said that was not the case.
“I’m not sure that you’re correct on what you’re saying, but let’s accept the submissions. I told you yesterday, you must be careful of twisting the facts,” he said.
“I know you’re twisting the facts as you stand there. It’s incumbent upon counsel to honestly present the facts before the court. Swanepoel was not there for a number of days; Miss Hermann was dealing with the trial within a trial at the outset.
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“I actually showed on the record my surprise when she [Swanepoel] stood up to cross-examine your client because Miss Hermann was wiping the floor with Advocate Fanie Harmse’s client. The question about wiping the floor came much later. So, please, Miss Mkabayi, do not make submissions on facts that are not true”
“These comments were true and came at different stages. The first one was when I was leading my client in the trial within a trial, when the court kept on saying to my client, ‘Miss Swanepoel will make a field out of you’.
“The one that the court has just mentioned now was when he elected the right to remain silent,” Mkabayi insisted.
Mkabayi: Court colluded with probation officer
Other allegations include bias and colluding with the probation officer, saying he would not take action against her.
“You are saying I was in this corrupt and collusive relationship with the probation officer. I will not take steps for the unprofessional behaviour, that’s up to the bodies to do it.
“Whether they want to take steps against me, it’s fine; whether it’s you, by the allegations you make, that’s your business. I will not become a complainer, and this is on record.”
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