Albaraka Bank v New Turn Investments (Pty) Ltd (D3715/2021) [2023] ZAKZDHC 43 (18 July 2023)

Albaraka Bank v New Turn Investments (Pty) Ltd (D3715/2021) [2023] ZAKZDHC 43 (18 July 2023)

The respondent breached its payment obligations under the partnership agreements, and the applicant lawfully terminated the agreements after giving proper notice. The subsequent payment of arrears by the respondent did not revive the cancelled agreements but merely reduced its indebtedness. The respondent, as a juristic entity, cannot invoke constitutional protections relating to housing, and the relief sought is for partnership dissolution, not execution against the property. The powers sought for the liquidator are granted except for the power of interrogation, which is not permissible in law. The applicant is entitled to the orders sought in the notice of motion, save for the excluded...

Citation
[2023] ZAKZDHC 43
Parties
Applicant: Albaraka Bank; Respondent: New Turn Investments (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
18 July 2023
Case Number
D3715/2021
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. The partnership is terminated and a liquidator is appointed with defined powers, excluding the power of interrogation.
Judges
Mossop J
Legal Topics
Sharia Compliant Finance, Partnership Dissolution, Actio Communi Dividundo, Mortgage Bond Enforcement, Constitutional Right to Housing
Banking and Finance Commercial and Corporate Sharia Compliant Finance Partnership Dissolution Actio Communi Dividundo Mortgage Bond Enforcement Constitutional Right to Housing

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Albaraka Bank

Applicant

New Turn Investments (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to terminate the partnership agreement and related agreements due to breach by the respondent.
  2. 2 Whether the respondent's payment of arrears after cancellation revives the agreements or rebuts the applicant's claim.
  3. 3 Whether the respondent, as a juristic entity, can invoke constitutional protections relating to housing and Uniform Rule 46A.

Ratio Decidendi

The respondent breached its payment obligations under the partnership agreements, and the applicant lawfully terminated the agreements after giving proper notice. The subsequent payment of arrears by the respondent did not revive the cancelled agreements but merely reduced its indebtedness. The respondent, as a juristic entity, cannot invoke constitutional protections relating to housing, and the relief sought is for partnership dissolution, not execution against the property. The powers sought for the liquidator are granted except for the power of interrogation, which is not permissible in law. The applicant is entitled to the orders sought in the notice of motion, save for the excluded...

Court Disposition

Application granted. The partnership is terminated and a liquidator is appointed with defined powers, excluding the power of interrogation.

Orders

  • There shall be an order in terms of paragraphs 1 to 7 of the notice of motion, save that there shall be no order in terms of sub-paragraph 3.3 thereof.