Judge grants second trial-within-a-trial in Nkata murder case

Windhoek High Court Judge Philanda Christiaan has agreed to hear a second trial-within-a-trial after defence lawyers challenged the admissibility of cellphone evidence in the murder case of nine-year-old Akundaishe Natalie Chipomho.

Chipomho’s burnt body was discovered in a skip bin in Windhoek North in January 2020.

CCTV footage later allegedly showed two of the accused transporting the child in a municipal dustbin before setting it alight.

The accused are Rachel Kureva, the deceased’s mother, and the married couple Caroline Nkata and Edward Nkata.

The latest legal challenge was brought by lawyer Milton Engelbrecht, who represents Caroline Nkata. Engelbrecht argued that the cellphone evidence was obtained under section 179(1)(b) of the Criminal Procedure Act 51 of 1977, a provision the defence says was incorrectly used to authorise the extraction of cellphone data.

According to the defence, section 179(1)(b) is intended for obtaining documents or physical articles and not for intrusive digital forensic examinations of cellphones, which contain extensive personal information protected under Article 13 of the Namibian Constitution.

The defence argues that police relied on the wrong statutory provision and failed to comply with the legal safeguards required for digital privacy, rendering the warrant invalid from the outset.

Right to privacy

It further contends that the subsequent search and seizure of information were conducted without proper legal authority and amounted to an arbitrary violation of the accused’s constitutional right to privacy.

The defence submitted that the evidence obtained through the allegedly defective warrant constitutes the “fruit of the poisonous tree” and should therefore be excluded because its admission would render the trial unfair and bring the administration of justice into disrepute.

Engelbrecht argued that the alleged defect was not merely procedural but went to the heart of the search's legality.

Judge Christiaan agreed that the issue should be ventilated through a second trial-within-a-trial, which will determine whether the cellphone evidence can be admitted during the main proceedings.

The matter has been postponed to 3 June for date fixing.

The latest ruling follows an earlier decision by Christiaan in June last year, when she declared oral admissions allegedly made by the three accused inadmissible.

At the time, the judge ruled that the State had failed to prove beyond a reasonable doubt that the oral statements were made freely and voluntarily.