Burnett Motors Dealership (Private) Limited T/A Creative Auto v Burnett & Others (23 of 2026) [2026] ZWHHC 14 (9 January 2026)

3 HH 23-26 HCH 184/25 . BURNETT MOTORS DEALERSHIP (PRIVATE) LIMITED T/A CREATIVE AUTO And LIAM B BURNETT And C W J BURNETT Versus HARARE INSTITUTE OF TECHNOLOGY HIGH COURT OF ZIMBABWE TAKUVA J HARARE, 24 June and 9 January 2026 COURT APPLICATION FOR UPLIFTMENT OF A BAR S Chihombe, for the applicants T Dube, for the respondent TAKUVA J: This is an application for upliftment of bar and extension of time within which to file a notice of opposition. BACKGROUND FACTS On 27 November 2024, the first respondent filed a court application for an order for specific performance or alternatively restitution in lieu of performance. For one reason or another, the Applicants failed to file a notice of opposition and they were barred in terms of the rules. The Applicants now wish to oppose the court application under case number HCH 5400/24, hence this application. APPLICANTS’ CASE The applicants contended that they were never personally served with the court application. They only discovered on 8 January 2025, when the first applicant’s Chief Executive Officer, one Liam Barry Burnett, came across an e-mail thread between his erstwhile legal practitioners Messrs Tamuka Moyo Attorneys and the respondent’s legal practitioners that he realised that the matter had already been set down on the unopposed roll, hence this application. It was further submitted that the delay in casu is not inordinate in that this application was made some four (4) business days after having the relevant knowledge. The Applicants also argue that the explanation for the delay is reasonable in that the respondent served the application on the Applicants’ erstwhile legal practitioners who had no mandate to represent the applicants in the matter despite the Respondent being advised of that position. Also, the Applicants averred that they enjoy good prospects of success in the application for specific performance in that the Respondent took its motor vehicles In that regard, the Respondent does not suffer any prejudice if the present application is granted. RESPONDENT’S CASE A point in limine was taken by the Respondent against the Applicants. The Respondent complained about the use of an incorrect form. The Respondent contends that the Applicants used Form 25 and not Form 23. The Respondent’s argument was that the applicant should have complied with the proviso to R 60(1) by using form number 23 since the application was to be served on the Respondent. The rule is peremptory and non-compliance with it renders the application a nullity which must be struck off with costs. MERITS As regards the applicants’ submission that they were never served with the application, the Respondent submitted that the Applicants directed correspondence to the Respondent stating that it had appointed Tamuka Moyo Attorneys regarding the present matter. See para 3(3) of the correspondence from the Applicants dated 17 October 2024 marked Annexure “HN1”. Upon enquiry Tamuka Moyo confirmed by way of an electronic mail that they had instructions to be served with the application on behalf of the Applicants. See Annexure “HN2”dated 19 November 2024 and “HN3”dated 21 November 2024. Accordingly, the Respondent effected electronic service of the application on the offices of Tamuka Moyo Attorneys on 28 November 2024. See Annexure “HN4”. Further, the Respondent effected physical service of the application on the offices of Tamuka Moyo Attorneys. See Annexure “HN5”. The Applicants failed to file opposition to the application and were barred. As a result the Respondent set the matter down unopposed in terms of R 64(1)(e). The Respondent effected service of the Notice of Set Down on Tamuka Moyo Attorneys which improperly renounced agency without complying with R 9(5) of the High Court Rules. It was the Respondent’s submission that the Applicants were aware of the service of the application before 9 January. The absence of an affidavit from their erstwhile lawyer makes the Applicants’ version untruthful and misleading. The Respondent also argued that the Applicants have no prospects of success in the main matter in that they failed to properly discharge their contractual obligations by delivering vehicles that were not cleared by ZIMRA for importation in terms of the Customs Excise Act [Chapter 23:02]. Despite payment in full to the first Applicant, the motor vehicles were seized in terms of s 193 of the Customs & Excise Act. The Respondent stands to suffer financial prejudice. ANALYSIS I do not agree with the Respondent that the use of Form number 25 instead of Form number 23 renders the application a nullity. This argument is often referred to as the battle of form over content. In my view, the import behind the two rules is that where a Chamber Application is to be served on an interested party, the application shall be in Form number 23 with appropriate modification. The rationale is to ensure that the other party is informed of his rights which appear in Form 23 and not in Form 25. I take the view that this application cannot be termed defective for this reason. The Respondent, apart from the fact that it was left to speculate on its rights, did not suffer any prejudice. While it is trite that parties must abide by the rules, in casu, although the grounds for the application do not show in Form 25, these appear in the founding affidavit. Also, it is important to note that the Respondent was not misled in that it filed its notice of opposition and opposing affidavit upon receipt of the application. One should also consider the interests of the administration of justice especially the principle that there should be finality to litigation. In the present matter, if the Respondent gets his wish, the matter will be struck off the roll but will find its way back in a matter of days. In the result, the point in limine is hereby dismissed. On the merits, there is no doubt that the application is based on falsehoods. I accept the Respondent’s version because it is supported by documents including some authored by the first Applicant. An explanation based on falsehoods can never be described as reasonable. The Applicants have no prospects of success in the main matter because they failed to honour their part of the agreement leading to the seizure of the motor vehicles. The Applicants’ case lacks merit. As regards costs, I find that the Respondent is financially prejudiced in that it is denied the usage of vehicles that it has paid for. Further, the Respondent is a custodian of public funds and is therefore enjoined to ensure the effective use of such monies. The Applicants relied on misrepresentation in a bid to mislead the Court. In the result it is ordered that: 1. The application be and is hereby dismissed. 2. The Applicants be and are hereby ordered to pay costs at attorney and client scale, jointly and severally one paying the others to be absolved. Takuva J:…………………………………… SAUNYAMA, DONDO LEGAL PRACTITIONERS, Applicants’ legal practitioners DUBE MANIKAI AND HWACHA, Respondent’s legal practitioners 3 HH 23-26 HCH 184/25 3 HH 23-26 HCH 184/25 . BURNETT MOTORS DEALERSHIP (PRIVATE) LIMITED T/A CREATIVE AUTO And LIAM B BURNETT And C W J BURNETT Versus HARARE INSTITUTE OF TECHNOLOGY HIGH COURT OF ZIMBABWE TAKUVA J HARARE, 24 June and 9 January 2026 COURT APPLICATION FOR UPLIFTMENT OF A BAR S Chihombe, for the applicants T Dube, for the respondent TAKUVA J: This is an application for upliftment of bar and extension of time within which to file a notice of opposition. BACKGROUND FACTS On 27 November 2024, the first respondent filed a court application for an order for specific performance or alternatively restitution in lieu of performance. For one reason or another, the Applicants failed to file a notice of opposition and they were barred in terms of the rules. The Applicants now wish to oppose the court application under case number HCH 5400/24, hence this application. APPLICANTS’ CASE The applicants contended that they were never personally served with the court application. They only discovered on 8 January 2025, when the first applicant’s Chief Executive Officer, one Liam Barry Burnett, came across an e-mail thread between his erstwhile legal practitioners Messrs Tamuka Moyo Attorneys and the respondent’s legal practitioners that he realised that the matter had already been set down on the unopposed roll, hence this application. It was further submitted that the delay in casu is not inordinate in that this application was made some four (4) business days after having the relevant knowledge. The Applicants also argue that the explanation for the delay is reasonable in that the respondent served the application on the Applicants’ erstwhile legal practitioners who had no mandate to represent the applicants in the matter despite the Respondent being advised of that position. Also, the Applicants averred that they enjoy good prospects of success in the application for specific performance in that the Respondent took its motor vehicles In that regard, the Respondent does not suffer any prejudice if the present application is granted. RESPONDENT’S CASE A point in limine was taken by the Respondent against the Applicants. The Respondent complained about the use of an incorrect form. The Respondent contends that the Applicants used Form 25 and not Form 23. The Respondent’s argument was that the applicant should have complied with the proviso to R 60(1) by using form number 23 since the application was to be served on the Respondent. The rule is peremptory and non-compliance with it renders the application a nullity which must be struck off with costs. MERITS As regards the applicants’ submission that they were never served with the application, the Respondent submitted that the Applicants directed correspondence to the Respondent stating that it had appointed Tamuka Moyo Attorneys regarding the present matter. See para 3(3) of the correspondence from the Applicants dated 17 October 2024 marked Annexure “HN1”. Upon enquiry Tamuka Moyo confirmed by way of an electronic mail that they had instructions to be served with the application on behalf of the Applicants. See Annexure “HN2”dated 19 November 2024 and “HN3”dated 21 November 2024. Accordingly, the Respondent effected electronic service of the application on the offices of Tamuka Moyo Attorneys on 28 November 2024. See Annexure “HN4”. Further, the Respondent effected physical service of the application on the offices of Tamuka Moyo Attorneys. See Annexure “HN5”. The Applicants failed to file opposition to the application and were barred. As a result the Respondent set the matter down unopposed in terms of R 64(1)(e). The Respondent effected service of the Notice of Set Down on Tamuka Moyo Attorneys which improperly renounced agency without complying with R 9(5) of the High Court Rules. It was the Respondent’s submission that the Applicants were aware of the service of the application before 9 January. The absence of an affidavit from their erstwhile lawyer makes the Applicants’ version untruthful and misleading. The Respondent also argued that the Applicants have no prospects of success in the main matter in that they failed to properly discharge their contractual obligations by delivering vehicles that were not cleared by ZIMRA for importation in terms of the Customs Excise Act [Chapter 23:02]. Despite payment in full to the first Applicant, the motor vehicles were seized in terms of s 193 of the Customs & Excise Act. The Respondent stands to suffer financial prejudice. ANALYSIS I do not agree with the Respondent that the use of Form number 25 instead of Form number 23 renders the application a nullity. This argument is often referred to as the battle of form over content. In my view, the import behind the two rules is that where a Chamber Application is to be served on an interested party, the application shall be in Form number 23 with appropriate modification. The rationale is to ensure that the other party is informed of his rights which appear in Form 23 and not in Form 25. I take the view that this application cannot be termed defective for this reason. The Respondent, apart from the fact that it was left to speculate on its rights, did not suffer any prejudice. While it is trite that parties must abide by the rules, in casu, although the grounds for the application do not show in Form 25, these appear in the founding affidavit. Also, it is important to note that the Respondent was not misled in that it filed its notice of opposition and opposing affidavit upon receipt of the application. One should also consider the interests of the administration of justice especially the principle that there should be finality to litigation. In the present matter, if the Respondent gets his wish, the matter will be struck off the roll but will find its way back in a matter of days. In the result, the point in limine is hereby dismissed. On the merits, there is no doubt that the application is based on falsehoods. I accept the Respondent’s version because it is supported by documents including some authored by the first Applicant. An explanation based on falsehoods can never be described as reasonable. The Applicants have no prospects of success in the main matter because they failed to honour their part of the agreement leading to the seizure of the motor vehicles. The Applicants’ case lacks merit. As regards costs, I find that the Respondent is financially prejudiced in that it is denied the usage of vehicles that it has paid for. Further, the Respondent is a custodian of public funds and is therefore enjoined to ensure the effective use of such monies. The Applicants relied on misrepresentation in a bid to mislead the Court. In the result it is ordered that: 1. The application be and is hereby dismissed. 2. The Applicants be and are hereby ordered to pay costs at attorney and client scale, jointly and severally one paying the others to be absolved. Takuva J:…………………………………… SAUNYAMA, DONDO LEGAL PRACTITIONERS, Applicants’ legal practitioners DUBE MANIKAI AND HWACHA, Respondent’s legal practitioners