In her testimony, she said she witnessed Smith sell Joshlin to a sangoma for R20 000.
Advocate Eben van Tonder, representing Lourentia Lombaard, has argued that his client meets the requirements for immunity in the Joshlin Smith case.
Lombaard returned to the Western Cape High Court on Tuesday, where submissions were made on why she should be granted immunity in the case.
Joshlin disappeared from the family’s home in Saldanha Bay on 19 February 2024, and police are still searching for her.
In May, Judge Nathan Erasmus sentenced Joshlin Smith’s mother, Racquel “Kelly” Smith, along with her accomplices, Jacquen “Boeta” Appollis and Steveno van Rhyn, to life in prison for human trafficking.
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They also received 10 years for kidnapping.
Lombaard was initially arrested with Smith, Appollis and Van Rhyn, but later turned state witness.
In her testimony, she said she witnessed Smith sell Joshlin to a sangoma for R20 000.
Why Lombaard should walk
On Tuesday, her legal representative argued for a ruling in her favour, granting her immunity from prosecution for several reasons.
Section 204 of the Criminal Procedure Act of South Africa allows a witness, who may be implicated in a crime, to testify against other accused persons in exchange for potential indemnity from prosecution.
However, there are conditions for granting this immunity, and the judge may decide against it.
“If a witness, potentially involved in the crime, testifies frankly and honestly, the court can grant them immunity from prosecution for the same or similar offence” is one of the conditions.
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Van Tonder argued that Lombaard met this requirement.
“The witness was subjected to days-long evidence in chief and rigorous cross-examination for days, all this while in an unfamiliar environment and intense public interest and live media broadcast,” he argued.
“These were extremely stressful circumstances, which can be evidenced by the fact that the witnesses had to receive medical attention during their testimony.”
‘Errors’ in her evidence
Van Tonder conceded that some aspects of Lombaard’s evidence were erroneous, but pleaded with the judge to take the circumstances in which she testified into consideration.
“It is only human to expect that the witness, under these circumstances, may make some errors. Look at the human aspect of this. I remember as a young police officer going to court to testify for the first time, how nerve-wracking that was, and it’s a very lonely place being in the witness box,” said Van Tonder.
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“After many hours in the witness box, you find your feet, but that was never under intense public scrutiny and live cameras. So, I would like to urge us not to forget the human element in all of this.”
Lombaard ‘assisted the court’
Van Tonder further argued that Lombaard’s evidence assisted the court in reaching a conclusion.
During the court judgment, the court found corroboration for aspects of the evidence brought by the witness from various independent sources. The court did not reject the evidence of the witness out of hand, and it would appear the court, at least in part, relied on aspects of the witness’s evidence in reaching this judgment.
“The court also ruled that there is sufficient corroboration for the reliability of the witness testimony, which was also supported by circumstantial evidence. The witness did testify frankly and honestly, considering all the circumstances.”
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He argued for her honesty, saying it was this possible immunity from prosecution that encouraged her to be honest with the court. She also made a sacrifice to give evidence before the court as she had to move into witness protection, he argued.
“The witness has made a huge personal sacrifice considering that she and her children had to be uprooted from their lives and community and placed in witness protection. The witness has much to lose, because she knows possible immunity from prosecution would be jeopardised if she were not honest with this court.
“This in itself would incentivise her to be honest. I submit that the witness did make a case to receive immunity from prosecution in terms of section 204 of the Act on all the counts.”
‘We cannot wish away injuries’
The legal representatives for the other three were also back in court, appealing life sentences.
Advocate Fanie Harmse, for Appollis, argued that the court ignored the facts brought before it that Appollis had visible injuries before he was taken in for questioning.
Harmse argued that Judge Erasmus overlooked some statements. Appollis testified that his statement was coerced.
“Yes, he was not a good witness, he double-talked and changed his evidence, but it does not take away from this concrete objective evidence that he had injuries. I understand that this court has found that he is not a credible witness, and I am not attacking that, but Appollis had injuries, and they were fresh injuries. The injuries cannot be wished away, it’s there,” argued Harmse.
The matter continues.
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