A taxi driver, who allegedly killed his former girlfriend after she dumped him through an SMS, has lodged an application for discharge in terms of section 174 of the Criminal Procedure Act on Tuesday when the State closed its case against him.
After prosecutor Solomon Kanyemba called his last witness in the trial, the accused, through his State-funded lawyer Mbanga Siyomunji, informed Windhoek High Court acting judge Eileen Rakow he intends to file for a discharge application in an ongoing matter in which his client is standing trial for murder, robbery and defeating or obstructing or attempting to defeat or obstruct the course of justice.
Section 174 Application is where an accused may ask a judge to find them not guilty if the State failed to establish a prima facie case on the evidence presented during the trial before the trial proceeds to the defence portion.
Elia stands accused of killing Iyaloo Ndapandula Hainghumbi, whose body was discovered in a bushy area along the Western Bypass road in January 2017. According to the indictment, Elia, a 38-year-old long-distance bus driver, received a text message from the deceased on the morning of 16 January 2017 informing him she has a new boyfriend.
At that stage, the deceased and Elia had been in an intimate relationship for some time, the indictment read.
This message was sent to Elia after the deceased spent the weekend of 13-15 January 2017 with the new boyfriend, who came to visit her from the coast, it is stated.
It is further stated that Elia then met up with the deceased on 16 January 2017 in Windhoek and killed her by kicking and/or beating her over her body and head with unknown objects, whereafter he robbed her of a cellular phone, a SIM card, a handbag, a jacket and a pair of shoes. He then dumped her body in a bushy area to frustrate the investigation into the disappearance of the deceased. It is further alleged Elia cleaned his vehicle, removed the blood of the deceased from the vehicle and set alight her belongings, as well as a headrest from the vehicle to defeat or obstruct the course of justice.
Siyomunji informed the court on Tuesday that the State has failed miserably to prove its allegations against Elia and now wants him to testify to plug their gaping holes.
According to him, the State has not produced any evidence to remotely suggest Elia was in the company of the deceased during the time she was murdered. He went on to say the whole trial was a fishing expedition that amounted to nothing and he requested the judge to grant their application for a discharge.
Not so fast, said Kanyemba. According to him, there are several issues raised by the State that only Elia can explain.
This, he said, amounts to prima facie evidence that can only be explained by Elia and subjected to cross-examination should he decide to take the stand.
Judge Rakow indicated she would give her ruling on the application on 8 June.