Burnett Motors Dealership (Private) Limited t/a Creative Auto and Others v Harare Institute of Technology

On 27 November 2024, the Respondent (Harare Institute of Technology) filed a court application for specific performance or restitution in lieu of performance. The Applicants failed to file a notice of opposition and were barred in terms of the rules. The Applicants then brought this application for upliftment of the bar and extension of time to file opposition. The Applicants claimed they were never personally served with the court application and only discovered on 8 January 2025, through an email thread between their erstwhile legal practitioners (Tamuka Moyo Attorneys) and the Respondent's lawyers, that the matter had been set down on the unopposed roll. The underlying dispute related to motor vehicles that the Applicants allegedly failed to properly deliver to the Respondent as they were not cleared by ZIMRA for importation under the Customs Excise Act, and were subsequently seized under section 193 of that Act, despite the Respondent having paid in full.

• Whether the use of Form 25 instead of Form 23 rendered the application a nullity
• Whether the Applicants provided a reasonable explanation for their delay in filing opposition
• Whether the Applicants were properly served with the original application through their erstwhile legal practitioners
• Whether the Applicants had good prospects of success in opposing the main application for specific performance
• Whether costs on an attorney and client scale were justified

1. The application is dismissed. 2. The Applicants are ordered to pay costs at attorney and client scale, jointly and severally, one paying the others to be absolved.

The binding legal principles established are: (1) The use of an incorrect form (Form 25 instead of Form 23) in a chamber application does not automatically render the application a nullity where the respondent suffered no prejudice, was not misled, and was able to file opposition - substance prevails over form when the interests of justice and finality in litigation so require; (2) An explanation for delay based on falsehoods can never be described as reasonable and will result in dismissal of an application for upliftment of bar; (3) Where legal practitioners are properly appointed to accept service on behalf of a party and confirm their instructions to do so, service effected on those practitioners constitutes valid service, and the party cannot later claim they were unaware of proceedings; (4) Costs on an attorney and client scale are justified where an applicant relies on misrepresentation in a bid to mislead the court.

The court observed that the rationale behind requiring Form 23 rather than Form 25 when a chamber application is to be served on an interested party is to ensure that the other party is informed of their rights which appear in Form 23 and not in Form 25. The court also noted that the Respondent, being a custodian of public funds, is enjoined to ensure the effective use of such monies, which was relevant to the consideration of the appropriate costs order. The court commented on the absence of an affidavit from the Applicants' erstwhile lawyer, which contributed to finding the Applicants' version untruthful and misleading.

This case is significant in Zimbabwean procedural law for its approach to form over substance in court applications. It reinforces that while compliance with court rules regarding the proper forms is important, technical non-compliance that causes no prejudice and does not mislead the opposing party will not automatically result in nullification of proceedings. The case also emphasizes the court's duty to consider the interests of administration of justice and finality in litigation when dealing with procedural irregularities. Additionally, it demonstrates the consequences of bringing applications based on misrepresentations and falsehoods, including the imposition of costs on an attorney and client scale. The judgment also addresses principles of service through legal practitioners and the requirements for renunciation of agency under Rule 9(5) of the High Court Rules.