Judgment No. CCZ 3/2015 4 Criminal Appeal No. CCZ 227/11 Mrs Fero for the respondent reiterates the position adopted by the State before the Magistrates Court, viz. that this Court, in the absence of the requisite evidence on record, cannot properly make any finding as to the reasons for the delay in commencing trial, whether or not the applicant asserted his rights, and the nature of the prejudice, if any, occasioned by the delay. She submits, however, contrary to the stance taken in the respondent’s heads of argument, that the application should not be dismissed. Instead, the matter should be referred to the Magistrates Court for a full inquiry to hear evidence and make proper findings of fact in order to determine whether or not the application for referral is frivolous or vexatious. PRINCIPLES GOVERNING REFERRAL Where an accused person alleges any infringement of his or her right to a fair trial within a reasonable time, the factors that are to be ventilated and determined are now well settled. They are: the length of the delay; the reason or explanation and responsibility for the delay; the assertion of his or her rights by the accused; and prejudice to the accused arising from the delay. See In re Mlambo 1991 (2) ZLR 339 (S); S v Nhando & Others 2001 (2) ZLR 84 (S); S v Nkomo SC 52-06. In order to enable a proper evaluation of the above-mentioned factors it is essential that evidence be led, primarily by the accused person, as to what transpired from the date of the charge to the date when referral of the alleged violation of rights is sought. The reasons for this were clearly articulated by Gubbay CJ in S v Banga 1995 (2) ZLR 297 (S) at 300G-301H as follows: