Judgment No. CCZ 6/2015 2
Const Application No. 02/14
The respondents raise a point in limine, to the effect that the applicants are not
properly before this Court. They contend that the applicants should have approached this
Court through a referral of the matter to it by the Magistrates Court in terms of s 175 (4) of
the Constitution. This is in view of the fact that the constitutional issue upon which the
application is premised arose during the course of proceedings in the Magistrates’ Court. It is
not in dispute that the applicants took the opportunity availed by a postponement granted by
consent in the Magistrates’ Court proceedings, to approach this Court directly.
Section 175(4)reads as follows:
Powers of courts in Constitutional Matters
“175(4) If a constitutional matter arises in any proceedings before a court the person
presiding over that court may and if so requested by any party to the proceedings,
must, refer the matter to the Constitutional Court unless he or she considers the
request merely frivolous or vexatious.”
It is the respondent’s contention, in light of this provision, that the applicants’
failure to approach this Court in terms of s 175(4) of the Constitution was ‘fatal’ to the
application.
Section 85(1)1 provides as follows:
“85
Enforcement of fundamental human rights and freedoms
(1)Any of the following persons namely(a) Any person acting in their own interest
(b) …
(c) …
(d) …
(e) …
1
It should be noted that reference in this judgment to paragraph(a) of ss (1) of s 85, and its effect, may apply
equally to the other paragraphs of this subsection, which are not relevant in casu