Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa

  • Maphuti David Tuba University of South Africa
Keywords: Islamic law, mora interest, riba, Hiyal, Profit-and Loss Sharing

Abstract

On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic law (Shariah law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic law as a governing law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this court discussed the applicable principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a common law court) with regard to the enforcement of Islamic banking law principles. This judgement raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance law in South Africa.

 

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Author Biography

Maphuti David Tuba, University of South Africa

LLB( WITS (LLM UNISA)

SENIOR LECTURER: DEPARTMENT OF MERCANTILE LAW: UNIVERSITY OF SOUTH AFRICA

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Published
2017-03-16
Section
Case Notes