TBIC Investments (Private) Limited & Anor v Kennedy Godwin Mangenje & 4 Ors

### Preamble
Judgment No. CCZ 15/20
Const. Application No. CCZ 18/18
DISTRIBUTABLE (15)
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DISTRIBUTABLE (15)

(1)     TBIC     INVESTMENTS     (PRIVATE)     LIMITED

(2)     PAUL     ESAU     HUPENYU     CHIDAWANYIKA

v

(1)     KENNEDY     GODWIN     MANGENJE

(2)     MINISTER     OF     LANDS     AND     RURAL     RESETTLEMENT

(3)     THE     REGISTRAR     OF     DEEDS

(4)     THE     ATTORNEY-GENERAL     OF     ZIMBABWE

(5)     THE     COMMISSIONER     GENERAL

CONSTITUTIONAL COURT OF ZIMBABWE

HARARE, OCTOBER 25, 2018 & OCTOBER 15, 2020

T T G Musarurwa, with him K Gama, for the applicants

E T Matinenga, with him E Jera, for the first respondent

No appearance for the second, third, fourth and fifth respondents

Before: MALABA CJ, In Chambers

AN APPLICATION FOR LEAVE TO APPEAL TO THE CONSTITUTIONAL COURT

This is a chamber application for an order for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”). The application is made in terms of r 32(2) of the Constitutional Court Rules S.I. 61/2016 (“the Rules”).

The Court holds that it is not in the interests of justice for the applicants to be granted leave to appeal against the decision of the court a quo. This is because no constitutional issue arises. The Court cannot assume jurisdiction over the matter. As a result, the application has no merit and must be dismissed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In 1970 one Paul Michael Henry Reimer obtained ownership of a certain piece of land in the District of Goromonzi known as the remaining extent of Stuhm measuring 1 074,7410 hectares in extent, held under Deed of Grant 1262/70. In 1987 his son Cecil Michael Reimer inherited the said piece of land from his late father under Deed of Transfer 3032/87.

Between 1997 and 2009 Cecil Michael Reimer subdivided the remaining extent of Stuhm measuring 1 074,7410 hectares into three lots. Lot 2 measuring 412.1091 hectares (“Lot 2”) was sold to Darnall Investments in 1997. It was held under Deed of Transfer 497/97. Lot 3 measuring 79,4959 hectares (“Lot 3”) was sold in 1998 to Douglasdale (Pvt) Ltd under Deed of Transfer 9247/98. Lot 1 measuring 583,1360 hectares (“Lot 1”) was purportedly sold to the first applicant in 2009 and held under Deed of Transfer 1724/09.

In 2000 Lot 1 was the subject of a preliminary notice to compulsorily acquire the land under General Notice 405A of 2000 published in the Government Gazette Extraordinary of 25 August 2000. The land was identified as follows:

“Deed of transfer 3032/87, registered in the name of Cecil Michael Reimer, in respect of certain piece of land situate in the district of Goromonzi, being the remaining extent of Stuhm, measuring one thousand and seventy-four, comma seven four one zero (1 074,7410) hectares.”

The intended acquisition was challenged in the Administrative Court in 2001. The preliminary notice of acquisition was withdrawn. The acquiring authority gazetted the same notice twice in 2003 under General Notices 298A of 2003 and 323 of 2003. In all the preliminary notices the description of the size of the land was stated as 1 074,7410 hectares held under Deed of Transfer 3032/87.

In August 2006 the acquiring authority issued an offer letter to the first respondent in respect of land described as “Subdivision 1 of R/E of STUHM in Goromonzi District of Mashonaland Province measuring approximately 534.00 hectares in extent”. In January 2011 the first respondent approached the High Court seeking an order confirming the compulsory acquisition by the State of a piece of agricultural land situate in the district of Goromonzi called the Remaining Extent of Stuhm measuring 583,1360 hectares. The first respondent also sought an order of eviction against the first and the second applicants. It was his contention that the subdivision sold to the first applicant was compulsorily acquired by the State in terms of s 16B(2) of the former Constitution and that the withdrawal of the notices of intention to acquire the land was without effect. It was also contended that the description in the preliminary notices of the acreage of the land as measuring 1 074,7410 hectares was an error which did not invalidate the acquisition.

The applicants’ argument was that the withdrawal of the preliminary notices of intention to acquire the land meant that the land was not acquired. The contention was also that the land identified in the notices did not exist at the time the notices were gazetted because its extent was incorrectly identified. The applicants averred further that at the time of the intended acquisition the land had ceased to be agricultural land. The allegation was that the land had become township land which could not be acquired in terms of s 16B(2) of the former Constitution.

The High Court granted the application to the first respondent. It found that the land in dispute was compulsorily acquired in terms of s 16B(2) of the former Constitution.

Aggrieved by that decision, the applicants noted an appeal to the court a quo. The appeal was dismissed. The court a quo made a finding that Lot 1, being the remaining fraction of the original block, was gazetted. It further reasoned that the acquiring authority was entitled as of right to acquire any fraction of the original land in terms of the former Constitution.

As regards the applicants’ argument that the land was not properly identified, the court a quo acknowledged that, while the process of identifying the land was fraught with errors, they were not peculiar to that piece of land. It found that in order to protect and keep the Land Reform Programme on course Parliament amended the former Constitution. The intention of the Legislature was to automatically validate the acquisition of all agricultural land identified and listed under Schedule 7 for purposes of the Land Reform Programme on or before 8 July 2005, regardless of any errors or mistakes that would have otherwise nullified the acquisition process. It further stated that in terms of s 16B(2) of the former Constitution, no limitation could be imposed on the acquisition process once the land was shown to have been gazetted and listed in Schedule 7 prior to 8 July 2005. The court a quo consequently found that the land in question, having been identified and itemised in Schedule 7, fell squarely within s 16B(2) of the former Constitution.

The finding was also made that Deed of Transfer No. 1724/09 in favour of the first applicant was a nullity because Cecil Michael Reimer had lost all title to the land when it was compulsorily acquired by the State. As such he could not pass valid title to the first applicant. The court also noted in passing that the first applicant seemed to have obtained title under dubious circumstances. The original title deed with the endorsement of State title had been fraudulently removed from the Deeds Registry.

Furthermore, the court a quo held that by virtue of the valid offer letter issued to the first respondent by the acquiring authority, he had the right to occupy and use the land in dispute. In terms of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] the applicants had no lawful authority to occupy and use the land.

Finally, the court a quo determined that the claim that the land in dispute was now township land was without merit. The applicants had made the argument on the strength of a subdivisional permit granted by the Minister of Local Government, Rural and Urban Development. The court found that the subdivisional permit was a nullity because it was issued to the first applicant, which did not own the land. The appeal was accordingly dismissed.

The applicants were aggrieved by that decision. They filed the present application on 22 March 2018. They contended that the court a quo did not properly interpret s 16B(2) of the former Constitution and that its interpretation was contrary to that which was made in Campbell and Anor v Minister of National Security Responsible for Land, Land Reform and Resettlement and Anor 2008 (1) ZLR 17 (S). The court a quo was also accused of failing to appreciate the import of the term “agricultural land”, as contained in s 16B of the former Constitution and s 72(1) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (“the Constitution”). It was said that the court a quo reasoned that the land was agricultural land because it was compulsorily acquired by the State and that that was a misdirection. It was also the applicants’ argument that the land had ceased to be agricultural land and became township land by virtue of a permit for change of land use issued by the Goromonzi Rural District Council in March 2003. Therefore, it could not fall under the ambit of s 16B(2) of the former Constitution.

The applicants argued further that their right to equality was violated because by the time the original piece of land was gazetted in 2000, there were three independent pieces of land. The contention was that there was no basis for treating the purchasers of Lots 2 and 3 differently from the first applicant. It was said that the court a quo accorded the purchasers of Lots 2 and 3 an advantage which it did not accord to the first applicant. The allegation was that there was a violation of s 56(1) of the Constitution, which guarantees to every person the right to equal protection of the law.

As regards the right to a fair hearing, the applicants took issue with the inferences of fraud that were drawn by the court a quo relating to the transfer of the land in dispute to the first applicant in 2009. It was argued that to find a person guilty of criminal conduct before hearing him or her violates his or her right to a fair hearing. Lastly, the applicants alleged that the finding by the court a quo that Government policy relating to indigenous persons only relates to natural persons violated their right to protection from deprivation of property. They averred that a company wholly owned by indigenous persons is indigenous and Government policy applies to it.

The application was opposed by the first respondent. He stated that there are no constitutional issues for determination by the Court because the application sought to challenge the method used by the court a quo to interpret the provisions of the former Constitution. On the merits, he submitted that the land was validly acquired by the State. The errors in the description of the property did not invalidate the acquisition because the title deed in terms of which the property was held was properly identified.

The first respondent further argued that the transfer of the disputed land in 2009 to the first applicant was a nullity and void because at that time the land did not belong to Cecil Michael Reimer and he possessed no title to pass to anyone. The argument that the land had ceased to be agricultural land was equally contested. It was averred that the land remained agricultural land throughout. It was argued that there was no proper basis upon which leave to appeal could be granted. It was prayed that the application be dismissed with costs on an attorney and client scale because it was an abuse of court process.

ISSUE FOR DETERMINATION

Whether it is in the interests of justice to grant the applicants leave to appeal

In terms of s 167(5)(b) of the Constitution, the Rules must allow a person, when it is in the interests of justice and with or without leave of the Court, to appeal directly to the Court from any other court.

Rule 32(2) of the Rules gives effect to s 167(5)(b) of the Constitution. It provides as follows:

“Leave to appeal

32.	(1) …

(2)	A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.” (the underlining is for emphasis)

These requirements were succinctly captured in Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd and Anor CCZ 6/19 at p 5 of the cyclostyled judgment as follows:

“1.	The applicant must intend to apply for leave to appeal against a decision of a subordinate court on a constitutional matter.

2.	The constitutional question must be clearly and concisely set out.

3.	The applicant must demonstrate prospects of success on appeal.”

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CCZ 11/18 the Court emphasised its narrow jurisdiction in the following words at p 9 of the cyclostyled judgment:

“The Court is a specialised institution, specifically constituted as a constitutional court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

The question that arises for determination is whether there was a constitutional matter before the court a quo by the determination of which the controversy between the parties was conclusively resolved, which decision is appealable to the Court.

The applicants’ first argument was to the effect that the court a quo failed to appreciate the import of s 16B(2) of the former Constitution to the extent that it “sought to simply ascertain the intention of the legislature”. As regards the meaning and import of s 16B(2) of the former Constitution, the court a quo stated the following at pp 6-7 of its judgment (SC 13/18):

“In order to protect and keep the Land Reform Programme on course, Parliament in its wisdom amended the former Constitution. The intention of the legislature was to automatically validate the acquisition of all agricultural land identified and listed under Schedule 7 for purposes of the Land Reform Programme on or before 8 July 2005 regardless of any errors or mistakes that may otherwise have nullified the acquisition in the normal run of things.

The disputed land was acquired under the former Constitution, of which s 16B(2) as amended provides as follows:

‘… (a) all agricultural land –

(i)	that was identified on or before the 8th July 2005, in the [Government] Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes;

is acquired by and is vested in the State with full title therein with effect from the appointed date … .

(5) 	Any inconsistency between anything contained in –

a notice itemised in Schedule 7; or

a notice relating to land referred to in subsection (2)(a) (ii) OR (iii);

and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.’

The effect of the above section was to revive, resuscitate and validate the acquisition of all identified agricultural land listed in Schedule 7 for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process. No limitation can be imposed on the acquisition process once the land is shown to have been gazetted and listed in Schedule 7 prior to 8 July 2005.

The language used in s 16B(2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.”

It is important to note that the meaning of s 16B of the former Constitution is one which is settled and has been applied consistently in the court a quo through precedent. In the locus classicus of Mike Campbell supra, the Supreme Court held at 31F-32G that:

“Section 16B of the Constitution is a complete and self-contained code on the acquisition of privately owned agricultural land by the State for public purposes.   Its provisions relate exclusively to the acquisition of agricultural land.   By the use of the non obstante clause, ‘notwithstanding anything contained in this Chapter’ at the beginning of subs (2) the Legislature gave the provisions of s 16B overriding effect in respect of the regulation of matters relating to the acquisition of all agricultural land identified by the acquiring authority in terms of s 16B(2)(a).

Underlying s 16B is the principle which is almost a universal law to the effect that every sovereign, independent State like Zimbabwe has an inherent right to compulsorily acquire private property within its territory for public purposes with an obligation to pay fair compensation for the property acquired.   The makers of our Constitution proceeded from the position that as the power to compulsorily acquire private property for public purposes is inherent in the State, the duty on the legislature was to determine the restrictions or conditions under which the power was to be exercised.   As a result of the operation of this fundamental principle two separate but related procedures underlie the provisions of s 16B.

The first procedure under s 16B(2)(a) relates to the actual acquisition of the land, whilst the second procedure under s 16B(2)(b) relates to the right to payment of fair compensation.   Under the first procedure, the acquisition is made to depend on the existence of a state of facts established by purely administrative acts of the acquiring authority.   These facts are that the Minister Responsible for Lands or any other Minister whom the President may appoint as an acquiring authority publishes a notice in the Gazette identifying the agricultural land to be acquired and stating therein the purpose for which the land is required.

It is to be noticed that under the new procedure for compulsory acquisition of agricultural land for public purposes a number of restrictions and conditions imposed in the process of the acquisition have been removed.   There is no requirement for a notice of intention to acquire to be given to the owner of the land before acquisition.   The acquiring authority does not have to state that the acquisition is reasonably necessary for utilisation of the land for resettlement purposes.   Reasonable necessity of the acquisition would have been a judicial question, the determination of which would have required the exercise of judicial power.   The acquiring authority is no longer under a duty to apply to a court of law for an order confirming the acquisition.   Acquisition in terms of s 16B(2)(a) of the Constitution is a lawful acquisition of the agricultural land affected.   As the acquisition of agricultural land in terms of s 16B(2)(a) is lawful, s 16B(3) provides that subss 18 (1) and (9) of the Constitution, which provide the right to protection of law and appropriate remedies against unlawful interference with or infringements of fundamental rights, shall not apply to the acquisition.   An application to a court of law to challenge a lawful acquisition would in effect be an abuse of the right to protection of law.  The provisions of s 16B(3) would not afford protection from the application of the provisions of subss 18 (1) and (9) of the Constitution to an acquisition of agricultural land which is not in terms of s 16B(2)(a) of the Constitution.   The section does not apply to an acquisition of property in any other land which is not agricultural land.  The provisions of ss 16(1) [and] 18(1) and (9) of the Constitution continue to regulate the acquisition of any property other than agricultural land.”

In making the findings it did, the court a quo relied on the accepted meaning of s 16B of the former Constitution. That meaning was decided in the Mike Campbell case supra. Consequently, the argument by the applicants that the court a quo failed to appreciate the meaning and import of s 16B(2) of the former Constitution is without merit.

Authority for the above position may be gleaned from the case of Ngarava v The State CCZ 10/20 at p 8 of the cyclostyled judgment where the Court held that:

“The question whether the facts placed before the court a quo established that the request to refer the alleged constitutional questions to the Constitutional Court for determination was not frivolous or vexatious was not a constitutional question for the court a quo to determine. The exercise involved the application of the accepted meaning of the principles on what constitutes a frivolous or vexatious request to the facts of the particular case. The meaning of the words ‘frivolous or vexatious’, as used in s 175(4) of the Constitution, was not in issue.” (the underlining is for emphasis)

Similarly, the meaning and import of s 16B(2) of the former Constitution was not the subject of the dispute in the court a quo as it was already established by binding precedent. Its application by the court a quo was not a constitutional matter. What was before the court a quo was a factual dispute relating to the question whether the land listed under Schedule 7 was the land that was claimed by the first applicant. The essence of the applicants’ contention was that the withdrawal of the three notices of intention to acquire the land meant that the land in dispute was not compulsorily acquired.

Conversely, the first respondent argued that the errors relating to the extent of the land did not invalidate the acquisition, because the title deed under which the land was held was correctly identified. It was common cause that the first preliminary notice to acquire the land was issued in August 2000. It was also common cause that in 2000 the land was agricultural land. It was further common cause that the land in dispute was listed under Schedule 7 of the former Constitution. In terms of s 16B(5) of the former Constitution, any error whatsoever contained in the notice had no effect on the compulsory acquisition. Nor did it invalidate the vesting of title in the State.

The applicants attacked the reasoning of the court a quo that by gazetting the original piece of land the acquiring authority also gazetted Lot 1 measuring 583,1360 hectares. What the applicants did not appreciate is the fact that Lots 2 and 3 of the original piece of land were sold to third parties and were held under separate title deeds. At the same time, Lot 1 remained held under the original Deed of Transfer No. 3032/87.

Lots 2 and 3 ceased to be part of the whole and any reference to Deed of Transfer No. 3032/87 would necessarily refer to Lot 1. That fact, taken together with a proper interpretation of s 16B(5) of the former Constitution, means that the error in identifying the extent of the land in dispute is clearly inconsequential and that the acquisition of that piece of land was lawful. The applicants admitted in the answering affidavit that Lots 2 and 3 were held under separate title deeds. They stated:

“While it is correct that the other two subdivisions had their own title deeds as alleged, it is equally correct that the first applicant’s subdivision had its own title deed distinct from anyone else’s even before it was transferred to the first applicant.”

The finding by the court a quo that Lot 1 was lawfully acquired involved a simple factual enquiry into the question whether the land listed under Schedule 7 was the same piece of land sold to the first applicant. Dressing a factual dispute in a constitutional cloak would not turn it into a constitutional matter.

Having found that Lot 1 was properly identified and consequently lawfully acquired by the acquiring authority, the applicants’ argument that by 2005 the land had ceased to be agricultural land falls away. Section 16B of the former Constitution was clear that any land that was identified on or before 8 July 2005, and itemised in Schedule 7, automatically became State land. The fact that the land ceased to be agricultural land is neither here nor there because title in that land vested in the State. Any change of land use could not have been done without the consent of the State as the lawful owner of the land.

The applicants made the further argument that their right to a fair hearing was violated due to the inferences of fraud that were drawn by the court a quo arising from the circumstances that surrounded the transfer of Lot 1 to the first applicant in 2009. In this regard, the court a quo stated the following:

“In this case, the fraudulent disappearance of the original Title Deeds duly endorsed with State Title in the Deeds Office could only have benefitted the parties to the illegal sale of the State land in question. The fraudulent transfer was then perpetrated using a copy of the seller’s Title Deeds without endorsement of State Title. This was meant to facilitate the bogus transfer of State Land to the appellant.”

Prior to this finding, the court a quo had noted in passing that the prevalence of fraudulent and corrupt disappearances of records and documents in the Deeds Registry had reached alarming proportions. It was in that context and also in light of the abovementioned findings that the court a quo found that, in the absence of any credible evidence to the contrary, the only reasonable inference to be drawn was that the first applicant and Cecil Michael Reimer were accomplices in the perpetration of the fraud. It is this finding that irked the applicants.

Du Plessis, Penfold and Brickhill “Constitutional Litigation” (1 ed, Juta & Co Ltd, Cape Town, 2013) at pp 23-24 state that:

“While the ambit of the phrase ‘constitutional matter’ is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court indicated that a purely factual matter does not amount to a constitutional matter. For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his rights to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person. The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak’s guilt had been proved beyond reasonable doubt. The Constitutional Court rejected this argument, holding that ‘the question whether evidence is sufficient to justify a finding of guilt beyond a reasonable doubt cannot in itself be a constitutional matter’ or, put differently, disagreement with the Supreme Court of Appeal’s assessment of the facts is not a breach of the right to a fair trial. The court thus held that ‘unless there is some separate constitutional issue raised … no constitutional right is engaged when the applicant merely disputes the findings of fact made by the Supreme Court of Appeal’.”

The above remarks are apposite in the circumstances of this case. The assessment of evidence by the court a quo and the inferences drawn from the facts that were before it do not give rise to a constitutional matter. Nothing turned on those findings. The applicants merely challenged the correctness of those factual findings and no constitutional issues arise therefrom.

It is also the applicants’ argument that the finding by the court a quo that Government policy relating to indigenous persons only relates to natural persons violates their right to protection from deprivation of property. They averred that a company wholly owned by indigenous persons is indigenous and Government policy applies to it. In making the above finding, the court a quo did not interpret, enforce or protect the Constitution. Its decision was premised on the application of company law principle to the effect that a company is a separate legal entity from its shareholders and that it has no real physical existence but it is merely an abstract legal entity.

Absent a constitutional issue raised before and determined by the court a quo, the remedy of appeal is not available to the applicants. A plethora of authorities of this Court have repeatedly emphasised the fact that it is only a decision of a lower court on a constitutional matter that can be appealed against to the Court. (See Nyamande and Anor v Zuva Petroleum 2015 (2) ZLR 351 (CC); Ngarava v The State supra; Muza v Saruchera CCZ 5/19; Nyengera v The State CCZ 9/20.)

The result is that no appeal can lie from a decision of the court a quo on a non-constitutional matter because it is final in terms of s 169 of the Constitution, as read with s 26 of the Supreme Court Act [Chapter 7:13]. Section 169 of the Constitution was interpreted as follows in the Lytton Investments case supra at p 22 of the cyclostyled judgment:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on a non-constitutional matter.”

A consideration of the circumstances of this matter shows that the applicants were dissatisfied with the findings of the court a quo regarding non-constitutional matters. The remarks of the Court in Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CCZ 10/17 immediately come to mind. The Court held as follows at pp 5-6 of the cyclostyled judgment:

“What the Court has before it are disgruntled litigants who have attempted to try and obtain redress under the guise of an appeal on a constitutional matter.  Their criticism of the judgment of the Supreme Court set out in what purports to be grounds of appeal is no more than a raging discontent over the factual findings of the Supreme Court.  The grievances of the losers in the Supreme Court have all the hallmarks of a mere dissatisfaction with the factual findings by that Court.  See De Lacy and Anor v South African Post Office 2011(a) BCLR 905 (CC) paras 28 and 57.”

The fact that the applicants alleged an adverse unconstitutional effect of the decision of the court a quo does not make it a constitutional issue. The mere citation of constitutional provisions or alleged infringements of constitutional rights does not mean that a constitutional issue has been raised.

DISPOSITION

The application is dismissed with costs.

GARWE AJCC:	I agree

MAKARAU AJCC:	I agree

Gama & Partners, applicants’ legal practitioners

Moyo & Jera, first respondent’s legal practitioners