Judgment No. CCZ 14/2017 Const. Application No. SC 263/12 s 46 as read with para 2 (f) of the Third Schedule. She then reverted, in the third sentence, to dealing with the application as one relating to a charge under para 2 (v), and she proceeded to determine it on that basis. She did not explain how the differences in the charge that the applicants were said to be facing was resolved but went on to quote the wording of para 2 (v). APPLICANTS’ SUBMISSIONS BEFORE THIS COURT At the hearing of this application Mr Mpofu for the applicants, submitted at the outset, that he was no longer challenging the constitutional validity of s 46 of the Criminal Code. This stance was also evident in his written submissions wherein it is categorically stated that “the constitutional question which arises is whether the allegations made against applicants establish the existence of a reasonable suspicion such as would entitle the State to interfere with their right to liberty. … It is submitted that the placement of applicants on remand is unlawful, unconstitutional and stands to be set aside with a consequential order decreeing a permanent stay of prosecution.” (emphasis added.) This submission meant that the main constitutional issue as stated in para 13 of the application placed before the magistrate fell away, thus leaving only the alternative issue live. Although Mr Mpofu made the above submission in the heads of argument, it was at a very late stage in the proceedings and after he had made his oral submissions in reply to the respondent’s counsel’s submissions, that he, in response to questions posed to him by the court, turned around and stated that he had made an error by not raising the constitutionality of the pertinent provisions. He however conceded that no meaningful submissions had been made in the lower court and in this court as to how s 46 as read with para 2 (f) of the Third Schedule of the Criminal Code, in terms of which the applicants were charged, was said to be unconstitutional. He indicated that he accepted his “role” in the fact that the issue was not 4