The disappearance of six-year-old Joshlin Smith from Middelpos, Saldanha Bay, returned to the Western Cape High Court on Thursday, this time with defence lawyer Nobahle Mkabayi locked in a heated exchange with Judge Nathan Erasmus over claims of judicial bias.

Joshlin’s mother, Racquel “Kelly” Smith, her boyfriend Jacques “Boeta” Appollis, and family friend Steveno “Steffie” van Rhyn were earlier convicted of kidnapping and human trafficking after the little girl vanished in February 2024.

The State’s case centred on witness testimony and statements allegedly made by the accused, but Joshlin has not been found.

Representing Van Rhyn in his bid for leave to appeal, Mkabayi accused Erasmus of mishandling key evidence and showing prejudice against her client during the original trial.

She argued that the judge should have examined certain statements before the trial-within-a-trial to determine whether they were confessions or admissions, and that comments made from the bench discouraged Van Rhyn from testifying.

“When I was leading my client, the court said Ms Swanepoel (State prosecutor) would make a field day out of you,” Mkabayi told Erasmus, describing the remark as threatening.

Erasmus rejected her version: “Why did you not ask for a special entry? I didn’t say Ms Swanepoel was going to ‘wipe the floor’ with your client. Ms Heeramun was wiping the floor with Mr Harmse’s client. Don’t make statements that are not true.”

The back-and-forth intensified as the judge pressed Mkabayi to explain why another court would view Van Rhyn’s testimony differently.

“Tell me why his testimony should have been accepted. Is there a reasonable prospect they will win in the next court?” he asked.

Mkabayi insisted her client’s right to a fair trial had been compromised and said she wanted the matter heard by a different court to prove his innocence.

Erasmus stood firm: “When the defence closed their case, all we did was manage their case. Are you saying I was biased towards your client by saying that?”

Mkabayi said yes. 

Erasmus told Mkabayi that if that was the case, then she had failed her client by not self-reporting.

The lawyer also said the judge created a hostile environment and angrily stormed out of court while she argued. 

The presiding officer encouraged Mkabayi to report him if he did anything irregular during the trial.

The appeal continues.

mandilakhe.tshwete@inl.co.za 

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