Oliver Chidawu and Others v Jayesh Shah and Others

The first applicant borrowed money from the first respondent and surrendered Pelhams shares belonging to the second to fourth applicants as security. The shares were given in negotiable form with signed share transfer forms. The second to fourth applicants are companies in which the first applicant has interests, holding 171,037,346, 100,000,000 and 83,666,586 Pelhams shares respectively. The loan was due for repayment by 10 March 2011. A dispute arose over the loan, leading the first respondent to threaten to sell the shares on two occasions. The applicants threatened litigation but did not institute proceedings. The first respondent eventually sold the shares to the second respondent through the third respondent (broker) on the Zimbabwe Stock Exchange (fourth respondent). The applicants sought an urgent interim order restraining the fifth respondent (share transfer secretaries) from transferring the shares. The application was brought with a certificate of urgency prepared by Tecla Mapota, but the respondents objected that this certificate was largely copied from a previous certificate prepared by Sarudzai Njelele for an earlier application dismissed by Makoni J.

• Whether the certificate of urgency was valid and properly prepared
• Whether the legal practitioner applied her mind independently to the facts before certifying urgency
• Whether the application could be heard as urgent in the absence of a valid certificate of urgency
• Whether delays in bringing the application negated urgency

The application was dismissed with costs.

A certificate of urgency must be the product of a legal practitioner's independent and honest assessment of the facts of the case, based on their personal honour. A legal practitioner must apply their own mind and judgment to the circumstances and cannot simply copy or endorse another practitioner's previous opinion. Where a certificate fails to address and explain material delays that affect urgency, it demonstrates a failure to apply one's mind and is invalid. In terms of Rule 244 of the High Court Rules, an urgent application by a legally represented applicant can only properly be before the court if accompanied by a valid certificate of urgency. Without such a valid certificate, the application is improperly before the court and must be dismissed.

The court noted that urgency which stems from deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by the rules. The court observed that where a lawyer could not reasonably entertain the belief in urgency that they profess, they run the risk of a judge concluding that they acted wrongfully if not dishonestly in giving their certificate of urgency. The court also noted that good faith in expressing a belief in urgency can be tested by the reasonableness or otherwise of the purported view.

This case is significant in Zimbabwe (and potentially relevant to South African jurisprudence given similar rules and legal traditions) for establishing strict requirements for certificates of urgency in urgent applications. It emphasizes that legal practitioners cannot simply copy previous certificates but must independently apply their minds to the facts of each case. The judgment reinforces that a certificate of urgency is not a mere formality but a substantive requirement that serves as the legal practitioner's personal assurance to the court on their honour. It demonstrates that failure to explain delays that negate urgency will invalidate a certificate, and that an invalid certificate renders an urgent application improperly before the court, leading to dismissal.