Judgment No. CCZ 11/14 6 Constitutional Application No. CCZ 4/13 responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application. This Court has stressed frequently that if an accused is of the view that the State is dragging its feet in bringing him to trial, he must assert his constitutional right to be tried within a reasonable time and in default of compliance with such protest seek a stay of proceedings. See S v Ruzario 1990 (1) ZLR 359 at 367F-G; In re Mlambo supra at 354B-C; S v Musivitisi & Anor S-229-93 at p 6; S v Matarutse supra at p 3.” The Court went further to state the following at pp 301F-302A: “I trust that I have made it clear that it is essential for an accused, who requests a referral to this Court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits. Cogent reasons will have to be provided as to why the further evidence was not presented to the lower court. The well known requirements laid down in Farmers’ Co-op Ltd v Borden Synd (Pvt) Ltd 1961 R & N 28 (FS), 1961 (1) SA 441 (FS) and as discussed latterly in Leopard Rock Hotel Co (Pvt) Ltd v Walenn Const (Pvt) Ltd 1994 (1) ZLR 255 (S) and Bevan Trading (Pvt) Ltd v Voest-Alpine Intertrading GbmH S-149-94, will have to be met.” In casu, the legal practitioner for the applicant did not fully appreciate what was required of him. He only made submissions from the Bar and simply pointed to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility or that of the prosecutor. He was required to place before the magistrate’s court evidence as to whether at any time before 28 February 2012 the applicant had asserted his right to a fair trial within a reasonable time and, even more importantly, whether or not actual prejudice had been suffered as a result of the delay. See S v Nkomo and Anor SC 89/03.