Judgment No. CCZ 12/14 9 Civil Appeal No. SC 327/12 Although the Investigating Officer was cross-examined at length on this evidence, he remained unshaken and was adamant that the applicant played a significant role in the delay. The applicant did not give evidence and consequently the evidence given by the Investigating Officer remained largely uncontroverted. The position is now settled that an applicant must adduce evidence and be cross-examined on it - S v Banga 1995 (2) ZLR 297. Indeed this Court has emphasized that the absence of viva voce evidence can be fatal – S v Nhando 2001 (2) ZLR 84; Matutu v S SC 34/13. In State v Banga (supra) GUBBAY CJ stressed the need for an applicant to testify on the extent to which, if at all, the cause of the delay was his responsibility, whether he had asserted his rights and whether any actual prejudice had been suffered as a result. At page 301, D-G, the learned Chief Justice remarked further: “Moreover, the absence of viva voce evidence completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba S-194-94; S v Marisa supra at p 9. 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.” On the basis of the evidence adduced before the court a quo, the position may be summarized as follows. The delay between June 2007 when the applicant was charged and the year 2009 is attributable to the State. However that period was explained by the State. When the charge was withdrawn in 2008, it had not been possible for the police to contact Muderede. There also had been instructions for some aspects of the case to be further