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2012
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[2012] ZAGPJHC 19
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Albaraka Bank Ltd v Halaal Royal Snacks (Pty) Ltd and Others (08400/2010) [2012] ZAGPJHC 19 (8 February 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH GAUTENG HIGH COURT, JOHANNESBURG)
CASE NO: 08400/2010
DATE: 2012-02-08
In the matter between
ALBARAKA BANK
LIMITED
...............................................................
Applicant
and
HALAAL ROYAL SNACKS (PTY) LIMITED
& FIVE
OTHERS
..................................................................................
Respondents
JUDGMENT
WILLIS J:
[1] This morning the application for a summary judgment against the
fourth respondent was postponed sine die with costs reserved.
The
matter proceeds against the remaining respondents namely the first,
second, third, fifth and sixth respondents. The applicant
claims
against the respondents as follows:
In respect of Claim A:
Judgment in the sum of R7 127 046-49 against First, Second, Third,
Fifth and Sixth Respondents, jointly and severally, one
or more
paying, the other(s) to be absolved;
Erf 43 Parkview Township is declared to be specially executable to
the extent of R697 500-00 and in the further sum of R 139
500-00;
That the First Respondent pay costs of suit on the party and party
scale;
That the Second, Third, Fifth and Sixth Respondents pay costs of
suit on the attorney and own client scale;
In respect of Claim B:
Judgment in the sum of R529 196-41 against Second Respondent;
That Erf 43 Parkview Township be declared to be specially
executable to the extent of R3 200 000-00 and in the further sum
of
R800 000-00;
That the Second Respondent be ordered to pay costs of suit on the
attorney and own client scale.
[2] The applicant originally issued a summons in this matter against
the respondents. The respondents who were the defendants
in this
matter (I am referring here to all the respondents, including the
fourth respondent), duly represented by attorneys, settled
the
matter. There were acknowledgements of debt signed by the respondents
and consents to judgment for the amounts claimed.
[3] The respondents now argue that one should have regard to the
underlying transaction and set aside the acknowledgement of debt.
The underlying transactions are, as Mr Hussain (who appears for the
respondents) correctly accepted, banking transactions. Furthermore,
these were banking transactions that were murabahah according to
Sharia law.
[4] There is nothing intrinsically wrong, unlawful or contrary to
public policy in banking transactions being entered according
to the
Sharia law. On the contrary, banking transactions according to
Sharia law is a rapidly growing field of banking law. As
far as I am
able to gauge, what is generally known as ‘Islamic banking’
is being adopted by all the major banks in
South Africa.
[5] When grown up commercial litigants are represented by attorneys
duly admitted in the courts of South Africa, a court should
be
extremely reluctant to interfere with settlements of the kind that at
issue here. The whole administration of justice in this
court, would
be impossible without the courts being able to rely on settlement
agreements. Umpteen settlements are concluded every
single day in
this court and the whole administration of justice relies upon people
resolving their disputes, relying to a very
large extent to the
intervention of their attorneys.
[6] There has been an allegation of duress raised by Mr Hussain in
his argument today. That duress is said to consist of threats
to
obtain judgment. It is claimed that it is common cause between the
parties that the respondents, at the time when the settlement
agreements were concluded, were in the process of settling contracts
with the national retail chain for the supply of their products.
It
is contended that a judgment against their names would have spelt
financial ruin for the respondents.
[7] Mr Hussain submitted that the threat of financial ruin was a real
threat which would have immediate consequences and probably
influence
the respondents to sign the document. Mr Hussain relied strongly on
the judgment of Nugent JA, in the case of Medscheme
Holdings (Pty)
Limited v Bhamjee
2005 (5) SA 339
(SCA) especially at paragraph [18].
In my respectful opinion there is nothing which Nugent JA said in
that judgment that causes
me a moment’s hesitation in
concluding that, in these particular circumstances, there was no
duress recognised in law. The
respondents cannot succeed in their
claim of duress.
[8] Accordingly, judgment is given in favour of the applicant against
the first, second, third, fifth and sixth respondent, as
claimed in
terms of both claim A and claim B.
[9] Counsel for the applicant wisely prepared a draft to reflect the
correct order in the event that the applicant was successful.
An
order is made in terms of the draft marked ‘X’. For the
sake of completeness, I read out that draft order into
the record so
that there can be no confusion or any problems later for the parties
on the question of interpretation. It reads
as follows:
‘It is ordered that:
In respect of Claim A:
Judgment in the sum of R7 127 046-49 is granted against First,
Second, Third, Fifth and Sixth Respondents, jointly and severally,
one or more paying the other(s) to be absolved;
Erf 43 Parkview Township is declared to be specially executable to
the extent of R 697 500-00 and in the further sum of R 139
500-00;
First Respondent is ordered to pay costs of suit on the party and
party scale;
Second, Third, Fifth and Sixth Respondents are ordered to pay costs
of suit on the attorney and own client scale;
In respect of Claim B:
Judgment in the sum of R 529 196-41 is granted against Second
Respondent;
Erf 43 Parkview Township is declared to be specially executable to
the extent of R 3 200 000-00 and in the further sum of R
800
000-00;
Second Respondent is ordered to pay costs of suit on the attorney
and own client scale.’
Counsel for the applicant: Adv C.E. Watt-Pringle SC (with him Y.
Alli)
Attorneys for the applicant: M.F. Jassat Dlamini
Counsel for the respondents: Adv I. Hussain SC
Attorneys for the fourth respondent: Shaheed Dollie
Attorneys for the remaining respondents: Ismail Ayob
Date of hearing: 8 February 2012
Date of judgment: 8 February 2012