Judgment No. CCZ 14/2017 Const. Application No. SC 263/12 “In view of what the Supreme Court said in Jennifer Williams & Another v Phatekile Msipa NO & 2 Ors, SC 22/10 where the alleged (sic) by the applicants were similar to the case on hand the court has decided to grant the application. In that case the Supreme Court stated that the prosecution and remand of appellants amounted to deprivation of their person (sic) liberty and protection of the law. Accordingly, the application for the referral of this case to the Supreme Court is granted.” Despite the magistrate’s reference to the Williams case (supra), it appears she did not read the judgment in that matter for if she had done so she would no doubt have been guided as to what was expected of her in such an application. Although the Williams case dealt with the refusal by a magistrate to accede to a request for referral to the Constitutional Court, the following excerpt from pp 17 -18 of the cyclostyled judgment provides guidance to lower courts faced with applications of this nature: “In this case the magistrate was required to form an opinion that the raising of the constitutional questions … was not merely ‘frivolous or vexatious’. The formation of the opinion is made the pre-condition for the refusal of the referral. The framers of the Constitution confided the power to form the opinion in the person presiding over the proceedings in which the question is raised. It must be his or her judgment and not that of the Supreme Court. Although the formation of the opinion denotes a subjective state of mind it presupposes compliance with a process in which objective procedural and substantive standards are observed and met. The opinion which the person presiding in the lower court is required to form is a particular opinion in the sense that he or she is expected to form it by reference to specific criteria. The raising of a question in a court of law is an action or legal proceeding which includes all material facts required to be proved by the party raising the question to entitle him or her to relief. … The judicial officer is required to have knowledge of the ordinary and natural meaning of the words ‘frivolous or vexatious’, which constitutes the standard which he or she must conscientiously and objectively apply to the facts on which the question as to the contravention of the fundamental human right or freedom is raised.” In casu the magistrate’s ruling is confusing as to what charge the applicants were facing between 2(f) and 2 (v) as both are interchangeably referred to. Clearly the magistrate did not address her mind to this aspect. She did not carry out an analysis of the facts and the constitutional provisions that may be violated. She did not apply her mind to the 8