THE High Court has struck off an application by Lenderspark Finance Limited seeking to recover more than US$131,000 from United Refineries Limited, ruling that the lender improperly approached the court despite a binding arbitration clause in its own contract.
Handing down reasons for an ex tempore ruling, Justice Mpokiseng Dube said the court would not exercise jurisdiction over a dispute the parties had expressly agreed should be resolved through arbitration.
“With such clear provisions of its own agreement the applicant cannot with respect cherry pick,” the judge said.
“As the author of the document, it carved out its intentions, aspirations and remedies. It should therefore abide by them.”
The dispute arose from a Memorandum of Agreement signed on 30 October 2024, under which Lenderspark would advance payroll deduction loans to selected employees of United Refineries, allegedly pre-vetted through Shingai T. Mabhena, the second respondent. Under the agreement, United Refineries was to identify qualifying employees, submit proof of employment, and ensure repayment of the loans through salary deductions remitted to the lender.
Lenderspark told the court that it disbursed varying sums of money pursuant to the agreement, but when repayment fell due none was forthcoming, prompting it to issue letters of demand. United Refineries denied liability and conducted an internal investigation that culminated in a police report and the arrest of the second respondent.
As the court noted, “It turned out all the loan recipients were never employees of the 1st respondent except the 2nd respondent himself.” The applicant said it had been prejudiced in the sum of US$131,831.79 as at 25 May 2025.
Lenderspark approached the court seeking a declaratory order that United Refineries was bound by the Memorandum of Agreement and liable to repay all loans disbursed, together with interest at 6.5 percent per month. Alternatively, it sought an order compelling the parties to proceed to arbitration solely for the quantification of the amount due.
At the opening of the hearing, the applicant raised a preliminary objection challenging the validity of United Refineries’ opposing affidavit, arguing that the commissioner of oaths who attested the document failed to state his designation. Justice Dube upheld the objection, finding the affidavit invalid and expunging it from the record.
“The attestation of an affidavit requires that certain solemnities be complied with in the absence of which it is invalid,” the judge said, adding that the authority of the person purporting to act as commissioner of oaths was unclear.
“Without knowing the capacity in which he exercises such powers of a commissioner of oaths, I am not convinced with the validity of his authority.”
Despite the matter proceeding as unopposed, the judge said the court was still obliged to consider the competence of the application and the relief sought. Clause 16 of the Memorandum of Agreement expressly required that any dispute arising from the agreement be resolved through arbitration in terms of the Arbitration Act.
“It is not the duty of the courts to draw up contracts for the parties,” Justice Dube said. “They have all the freedom to contract as high or as low as they may wish.”
Emphasising the principle of freedom of contract, the judge said the applicant could not seek to bypass an arbitration clause it had itself drafted.
“I am convinced that in the present matter the applicant applied its mind fully to the drawing up of the contract it now seeks to enforce and it did so freely and voluntarily. It therefore cannot be the first to seek to resile from its own contract.”
On that basis, the court declined to exercise its jurisdiction and struck the matter from the roll with costs.
