Steveno van Rhyn’s lawyer told the Western Cape High Court on Thursday that her client was sleeping when police read him his rights before taking his confession.

Nobahle Mkabayi made the claim during the trial-within-a-trial, which is probing whether statements made by the accused were obtained freely and voluntarily or as a result of coercion.

Joshlin Smith, 6, went missing on 19 February 2024, from Middelpos, Saldanha Bay.

Her mother, Racquel “Kelly” Smith, her boyfriend Jacquen “Boeta” Appollis, and their friend Van Rhyn are charged with kidnapping and human trafficking and are standing trial in the Western Cape High Court, sitting at the White City Multipurpose Centre in Diazville.

On Thursday morning, Mkabayi continued cross-examining Captain Philip Seekoei, who took Van Rhyn’s statement on 4 March 2024.

She referred to a video recorded by police during the alleged confession.

Mkabayi told the court her client fell asleep for most of the 19-minute video footage.

“Most of the time, he is sleepy, closing his eyes. He opened his eyes and immediately closed them again and looked drowsy,” she said and asked Seekoei whether he considered stopping the interview.

Seekoei replied: “Just because he is closing his eyes doesn’t mean he is sleeping.”

Mkabayi responded: “I agree, but it doesn’t mean he is not sleeping either. Did you ask him if he was sleeping?”

Seekoei admitted he did not.

“So you can’t come to the court and say he was not sleeping,” Mkabayi continued.

“He was not sleeping,” Seekoei insisted. “He was nodding his head and responding to questions, indicating that he understood.”

Despite repeated signs of fatigue and drowsiness, the captain said he did not see the necessity to stop the statement. “At the time, I didn’t consider it.”

“Is it because your instruction was that you must come and take the confession?” Mkabayi asked.

“I didn’t see the need to stop,” Seekoei replied.

Mkabayi pressed further: “While there was no necessity to stop, did you believe that he understood what you said when he was clearly drowsy?”

“He did understand,” the officer said. “The accused interacted and answered my questions.”

“Are you aware that he was clearly drowsy and not just drowsy - most of the time, he was sleeping?” she asked.

Seekoei denied that, saying: “He was not sleeping. When I explained his rights, he was nodding his head, an indication that he understood everything.”

She accused Seekoei of continuing with the confession simply because he had been instructed to take it.