Joshlin Smith appeal hearing: Lawyer questions evidence in Appollis' conviction for child's kidnapping

The lawyer for Jacquen “Boeta” Appollis has questioned the evidence which the Western Cape High Court relied on earlier this year, to convict him of kidnapping and trafficking six-year-old Joshlin Smith .

During the appeal hearing, Advocate Fanie Harmse argued that certain statements had been overlooked by presiding officer Judge Nathan Erasmus.

He suggested that if the court had fully considered them, more accused should have been tried, including Phumza “Maka Lima” Sigaqa.

He also emphasised that Section 204 witness Lourentia “Renz” Lombaard, despite being unreliable, had testified that Appollis wanted nothing to do with a plot to sell Joshlin.

Joshlin went missing on 19 February 2024. Her mother, Racquel “Kelly” Smith, Appollis, and their friend Steveno “Steffie” van Rhyn were convicted and sentenced to life imprisonment.

Harmse told the court that in the trial-within-a-trial, it was argued that Appollis’s extra-curial statement had been coerced.

He said:“My submission is that the court did not find sufficient value in the independent witness, a hotel staff member’s evidence, how she saw Mr Appollis in the morning before my client was taken to the Sea Border offices.”

Judge Erasmus interrupted: “Where did I err? We can make mistakes, but show me.”

Harmse replied: “I cannot refer you to a specific sentence… from the judgment of the trial-within-a-trial, the extra-curial statement was coerced.

“The very important part is the injuries that the accused showed, and the evidence we saw from the video that he was limping.

“On the 6 March 2024, Sergeant Dawid Fortuin also noted injuries. There was no evidence that he had sustained the injuries before he arrived at Sea Border.

“There was no special evidence to suggest he could have sustained them between the hotel and the police.”

He added that both Sgt Fortuin and Captain Wesley Lombard noted an injury to Appollis’s eye, while an independent witness claimed to have seen him without injuries.

“If that is true and given sufficient value, it should be concluded that he arrived at the Sea Border without injuries. The State’s case was that he was injured prior to arriving at Sea Border, and it is unlikely that he sustained those injuries before he got there.

“The doctor said they were fresh injuries. Those injuries cannot be wished away.”

Harmse said he was not attacking all the State’s evidence but noted that the core allegation was that Joshlin was taken from Kelly and Appollis’ home to a VW Polo in a single event.

“The 204 witness gave evidence that he didn’t want to be part of that. He didn’t accompany nor agree with it, he disassociated himself. If that was the only evidence, accused 1 could not have been found by the court to have supported that or been complicit.”

He pointed out that after Lombaard’s testimony, the court dealt with the disputed confessions.

“Joshlin was taken to Maka Lima’s house, and there are two questions: if that was the case, then why was Maka Lima released? There was no explanation from the State, yet the evidence was accepted by the court.”

mandilakhe.tshwete@inl.co.za