Sergeant Dawid Fortuin was being cross-examined by attorney Nobahle Mkabayi, acting for accused two, Steveno van Rhyn
A police officer is not compelled to take notes while interviewing witnesses to a crime, the Cape Town high court was told on Tuesday in the ongoing trial-within-a-trial relating to the kidnapping and human trafficking of Joslin Smith.
Sergeant Dawid Fortuin, an officer with the Western Cape Organised Crime and Kidnapping Unit, was being cross-examined by attorney Nobahle Mkabayi, acting for accused two Steveno van Rhyn, when he made the statements.
A veteran with over 20 years of service under his belt, Fortuin conducted the lead interviews with Van Rhyn, accused one, Jacquen “Boeta” Appollis, and accused three, Kelly Smith, who is the mother of Joslin and partner of Appollis.
All three pleaded not guilty to kidnapping and trafficking in persons charges when the trial started six weeks ago.
“There are no standing orders that notes have to be taken during an interview.
There are no regulations regarding what must be done during an interview, when it comes to notetaking,” Fortuin told the court.
He said he first told Van Rhyn about his constitutional rights after he asked him if he knew where Joslin was. Van Rhyn answered that police should “go ask Kelly”, said Fortuin. It was at this point that he let the man know his rights.
“I warned him as follows: he has a right to remain silent, anything he says can be used in a court of law against him; he has a right to legal representation and, if he can’t afford one, he can use LegalAid, provided he qualifies,” Fortuin told the court.
His confident responses appeared to irk Mkabayi, who repeatedly asked him why he did not caution her client (or Smith and Appollis) before the interview started “that he had a right to not answer police questions”.
At that stage, the accused were witnesses to the child’s disappearance, said Fortuin. “When I pose questions to a witness, I don’t explain to the witness his rights,” he said.
Said Mkabayi: “I put it to you that if that is your procedure, it is wrong. It is violating the [rights of those being interviewed].”
As for his ability to pick up discrepancies in prior witness statements made by the trio before they were suspects, even though he admitted to having not read those statements, Fortuin said his superior, Captain Wesley Lombard, had told him about the discrepancies.
It was these discrepancies that had necessitated another interview.
Joslin went missing on 19 February 2024 from the Middlepos shack she lived in with her mother, Appollis and two siblings in the Saldanha Bay area. She has not been seen since.
The state alleges Smith sold the then six-year-old to a female sangoma for R20 000 and allegedly offered Van Rhyn R1 200 for his silence. Smith also allegedly offered R1 000 to Lourentia Lombaard, who was accused number four in the matter until she became a state witness in October last year.
Van Rhyn and Lombaard, according to Lombaard’s testimony, overheard Smith’s plans the day before Joslin went missing, which is why they were offered hush money.
While Lombaard’s testimony has been fraught with contradictions, she has also offered chilling details during the trial, such as that the pale-skinned and blue-green-eyed Joslin was sought by a sangoma for her “eyes and skin”.
Appollis, Van Rhyn and Smith have been charged under the doctrine of common purpose.
All three, including Lombaard, have admitted to heavy drug use in the days prior to, and on the day of, Joslin’s disappearance.
During his testimony and cross-examination last week, Fortuin’s superior, Lombard, told the court that he had not taken notes during the interviews with the accused either because his involvement was “minimal”.
Besides, he added, he saw Fortuin with a clipboard and papers and assumed he was taking notes.
The trial-within-a-trial will ultimately see presiding judge Nathan Erasmus having to determine if the confession statements made by Van Rhyn and Appollis can be admitted as evidence in the actual trial.
Mkabayi and the advocate acting for Appollis, Fanie Harmse, have said they were tortured into making the confessions.
In their plea explanations, both men used exactly the same words to describe how they were allegedly tortured into confessing.
The matter continues.