Courtroom tensions rise as defence challenges judge's conduct in Joshlin Smith case

In a dramatic turn in the appeal case concerning the kidnapping of six-year-old Joshlin Smith, tensions escalated as advocate Nobahle Mkabayi accused Judge Nathan Erasmus of fostering a hostile courtroom environment through his facial expressions and demeanour. 

Mkabayi, representing Steveno “Steffie” van Rhyn, one of the three people convicted in the kidnapping and human trafficking of six-year-old Joshlin Smith, argued that the judge’s conduct had undermined the fairness of the proceedings.

Central to her appeal was the role of the State-appointed expert during the mitigation of sentencing.

Mkabayi alleged bias, claiming the expert had a prior acquaintance with individuals involved in the case and relied solely on the State’s submissions, ignoring the defence’s arguments.

Judge Erasmus dismissed these concerns as not amounting to a procedural irregularity.

“That is our ground to appeal, with due respect,” Mkabayi replied, adding that when she questioned the expert on relevant factors, the court curtailed her questioning.

“Yes, I stopped you at some stage; you were going around in circles,” Erasmus said.

“The questions could never have been irrelevant,” Mkabayi countered, further suggesting collusion between the court and the probation officer due to similarities in the language of the officer’s report and the judge’s findings as she claimed they both used the word "commodified".

Erasmus rejected the allegation outright.

“I don’t know where this is coming from, and I’m not going to defend myself. It sounds preposterous. I’ve been on this bench for many years; I started in 1999. I disclosed everything on record. Facts are being distorted.”

The judge explained that both parties had been allowed to provide material to the probation officer and that the defence could have cross-examined him more extensively.

But Mkabayi insisted the court’s atmosphere itself had undermined her work.

“My Lord, if you could see your face, your facial expressions made the environment hostile,” she said.

Erasmus responded that the probation officer was a witness who could not defend himself in absentia, warning, “Let’s act professionally. Attack my findings.”

Mkabayi concluded that her appeal application was based strictly on what had taken place in court.

She asked for the appeal, if granted, to be in front of a full bench court.

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