The applicant (Lenderspark Finance Limited) and the 1st respondent (United Refineries Limited) entered into a Memorandum of Agreement on 30 October 2024, whereby the applicant would advance payroll deduction loans to selected employees of the 1st respondent, pre-vetted by the 2nd respondent (Shingai T Mabhena). Pursuant to this agreement, the applicant disbursed varying sums of money totaling US$131,831.79 to purported employees of the 1st respondent. When payment became due, none was forthcoming. The 1st respondent denied liability and conducted an internal investigation which resulted in a police report and the arrest of the 2nd respondent. It was discovered that all loan recipients were never employees of the 1st respondent except the 2nd respondent himself. The applicant sought declaratory orders holding the 1st respondent liable under the Memorandum of Agreement for repayment of all loans disbursed.
The matter was struck from the roll with costs.
Where parties have freely and voluntarily entered into a contract containing an arbitration clause that provides for all disputes arising from the agreement to be resolved through arbitration, the court will decline to exercise jurisdiction over such disputes, even if the matter proceeds unopposed. Parties cannot cherry-pick which provisions of their own contracts to enforce and must abide by the dispute resolution mechanisms they have contractually agreed to. The principle of freedom of contract and the sanctity of contracts require that courts uphold and enforce arbitration clauses rather than allowing parties to resile from their own contractual obligations. Additionally, an affidavit is invalid where the commissioner of oaths fails to indicate their designation or capacity in which they are authorized to administer oaths.
The court made observations about the requirements for valid attestation of affidavits, noting that certain solemnities must be complied with including that the person attesting an affidavit must appear before a Commissioner of Oaths, and the two must be in the same place, at the same time, and on the same day. The court also observed that it is not the duty of courts to draw up contracts for parties, who have complete freedom to contract as they wish. The court noted the English principle from Printing & Numerical Registering Company v Sampson regarding public policy requiring that contracts entered into freely and voluntarily be held sacred and enforced by courts, and that courts should not lightly interfere with freedom of contract.
This case reinforces the sanctity of arbitration clauses in commercial contracts in Zimbabwean law. It establishes that courts will not exercise jurisdiction over disputes where parties have freely and voluntarily agreed to resolve their disputes through arbitration, even where the application is unopposed. The case also demonstrates the court's willingness to decline jurisdiction mero motu where doing so would undermine the parties' contractual agreement. Additionally, the case provides guidance on the formal requirements for valid attestation of affidavits, particularly the requirement that a commissioner of oaths must clearly indicate their designation and capacity to act as such.