Judgment No. CCZ 10 /2015 2
Const. Application No. 8/2014
At the hearing of this matter, counsel for the applicant, Mr Mambosasa, was
asked to address the court on the basis upon which the matter had been brought before the court
in view of the following;
i)
according to its Notice, the application was brought directly to this court,
purportedly in terms of s 167(1) and 176 of the Constitution and not s 85(1) or
other constitutional provisions that provide for such direct approach;
ii)
it was neither an appeal against the judgment
of the Supreme Court, nor was it referred by that
court in terms of s 175(4)
of the constitution; and
iii)
the matters that he wished the court to determine were neither raised before, nor
determined by the Supreme Court, as constitutional issues.
In short, the court wished to hear from the applicant whether he had established
a basis for approaching the Constitutional Court with the application in question.
Mr Mambosasa conceded all the three points raised by the court. He further
conceded that the papers before the Supreme Court did not properly challenge the
constitutionality of ss 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:01].
Doing so would have entitled the applicant to either appeal to this Court if the Supreme Court
had ruled against him, or seek a referral of the matter to this Court in terms of s 175(4)) of the
Constitution. He also conceded that consequently, the application had “no leg to stand on”, as
it were. In light of these concessions, counsel for the applicant belatedly sought to withdraw
the matter. The court ruled against him and proceeded to hear argument on the question of
costs, as discussed later in this judgment. Despite not having filed any heads of argument, Mr