Judgment No. CCZ 9/2015 5 Const. Application No. CCZ 287/11 be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence, if necessary - S v Banga 1995 (2) ZLR 297. [15] Further it is insufficient to make a statement from the bar, as the applicants’ legal practitioners did in this case. The applicants should have been called to testify under oath in order to substantiate their complaints that their rights had been violated. Had that happened the prosecutor would then have had the opportunity to cross -examine the applicants and, thereafter, to adduce such evidence as he may have considered necessary to contradict the allegations made by the applicants. Only after hearing evidence from both sides would the magistrate have been in a position to make findings of fact, which findings he would have been bound to take into account in deciding whether or not to refer the issues raised to the Supreme Court. In short, it is the responsibility of the court referring a matter to resolve any disputes of fact before making such a referral. [16] The absence of oral evidence can be fatal to an application of this nature because it completely disables findings to be made on the complaints raised. It is on the basis of those findings that the Supreme Court is called upon to deal with the allegations raised and, where necessary, afford appropriate relief. [17] In S v Banga (supra) GUBBAY CJ remarked at p 301 E-G:“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.”