On 9 February 2011, Chidawu borrowed an amount of USD3 million from the first respondent, (hereinafter referred to as Shah). The terms and conditions attaching to the loan were recorded in two written documents signed by the parties on 9 and 10 February 2011 respectively. The second document, referred to by the parties as Annexure “B” provided in clause 2.1 that in the event of any inconsistencies in any of the provisions of the two documents, its provisions would prevail. The material terms of the agreement were these, firstly, the loan would attract an interest rate of 18% per annum compounded monthly. The loan was repayable on or before 20 February 2011, subject to an extension to 20 March 2011 at the sole discretion of Shah. Secondly, as security for the loan, Chidawu was obliged to provide sureties in the form of Deeds of Surety executed by each of the appellant companies. The execution of a Deed of Surety was to be accompanied by the surrender of the share certificate each appellant company held with Pelhams Limited. Chidawu was also obliged to surrender the said share certificates in negotiable form to Shah or his nominees by 10 March 2011 in the event that repayment of the loan would not have been effected by that date. On 9 February 2011, Chidawu handed over the shares certificates and executed the necessary transfer documents. Chidawu was unable to pay the loan by due date. Through his legal practitioners, Messrs Atherstone & Cook, Shah called up the loan and by letter dated 11 March 2011 threatened to liquidate the security in his possession. On 18 March 2011, Messrs Honey & Blanckenberg on behalf of Chidawu, responded to the threat as follows: “We act for the above named Oliver Chidawu who has instructed us to respond to your letter dated 11 March 2011.
that the applicants’ attempt to amend that application was dismissed. This means from that date the applicants were aware of the need to make this application but did not do so until 8 November 2011. Mapota should, if she was applying her mind to the urgency of this matter, have explained this delay”. The learned judge cannot be faulted in his reasoning. There were pertinent issues regarding delays in instituting proceedings which should have been obvious had Miss Mapota been applying her mind. There was an evident delay in the proceedings which had to be explained before the matter could be considered as being of an urgent nature. The appellants had tendered the share certificates together with signed transfer forms. Once the due date for the settlement of the loan passed without payment, it must have occurred to the appellants that the first respondent had the right to sell the shares. The fear of irreparable harm arising from the sale of the shares would have arisen on 10 March 2011. There is no explanation from Miss Mapota as to why no action was taken soon after 10 March 2011 to stop the sale. As mentioned by the learned judge, Shah had on two occasions issued threats to liquidate the security. There were letters written by on behalf of Chidawu in answer to the threats. The threats would have caused fear of irreparable harm yet there was no explanation as to why action was not taken soon after the threats were uttered to stop the sale of the shares. This assumes paramount importance when regard is had to the fact that the shares had been tendered to Shah in negotiable form and could be transferred without the need to notify any of the appellants.