Judgment No. CCZ 6/2015 11 Const Application No. 02/14 assume that the lower court is still in the dark in this regard. Further to this, it appears from the facts of the case that evidence should have been led in the lower court, to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court. The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate. This Court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter. I therefore entertain no doubt that the certainty order referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of s 85(1). This circumstance is not only highly undesirable, it would also constitute an affront to the time honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A); “ … a superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but would do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.” It seems to me that the ratio in the cases of Tsvangirai v Mugabe and Anor and Jesse v Attorney General, cited above, was a reaffirmation of this principle, and that it found fortification in s 24(3) of the old Constitution. Despite this ‘fortification’ not having found its way into the new Constitution, I am satisfied that the basic principle remains. It is, in any case, trite that a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law. (See Johannesburg Municipality v Cohen’s Trustees, 1909 TS 811). I do not