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2024
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[2024] ZAGPJHC 601
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Vally v ELA Asset Management and Another (2023/030182) [2024] ZAGPJHC 601 (27 June 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, JOHANNESBURG
1. REPORTABLE:
NO
2. OF INTEREST TO OTHER JUDGES:
NO
3. REVISED:
NO
27
June 2024
CASE
NO
: 2023/030182
In the matter between:
SHEHNAAZ
AHMED
VALLY
APPLICANT
and
ELA ASSET
MANAGEMENT
1
ST
RESPONDENT
THE
FINANCIAL SECTOR CONTROL BOARD
2
ND
RESPONDENT
Coram:
Dlamini J
Date
of request for reasons
: 16 February
2024
Delivered:
27 June 2024 – This judgment was handed down electronically
by circulation to the parties' representatives
via
email,
uploaded to
CaseLines
, and released to SAFLII. The date and
time for hand-down is deemed to be 10:30 on 27 June 2024.
JUDGMENT
DLAMINI
J
[1]
On 22 January 2024, I made an order marked
“X” an order of this court, What follows hereunder are my
reasons for that
order.
[2]
This is an application wherein the
applicant seeks relief that a settlement agreement be made an order
of the court and further
or other ancillary relief.
[3]
The facts surrounding this dispute are
largely common cause and can be summarised as follows.
[4]
The applicant was offered and received
financial services from the first respondent who made an undertaking
to invest monies on
behalf of the the applicant. Around May 2022, the
first respondent informed the applicant that an employee of the first
respondent
had unlawfully embezzled the applicant's monies which was
held by the first respondent.
[5]
Following discussion between the parties, a
written settlement agreement was entered into between the applicant
and the first respondent,
in terms of which the first respondent
undertook to repay the applicant's monies that were due to the
applicant.
[6]
According to the applicant, the first
respondent has failed to make full payment to the applicant in terms
of the settlement agreement,
hence the applicant launched this
application to make the settlement agreement an order of court
alternatively.
[7]
The application is opposed by the first
respondent on the basis that this court has no power to grant an
order making the settlement
agreement an order of the court. The
first respondent did not file any opposing papers.
[8]
The applicant contends that prayer one (1)
of the Notice of Motion is not necessary to carry the further relief
for payment as contained
in prayer 2 of the applicant's Notice of
Motion and may be refused by a court while still finding for the
applicant in the further
relief sought.
[9]
The high watermark of the respondent's
contention is that the court has no power to make a settlement
agreement an order of court
where the settlement agreement was not
concluded to settle any pending litigation between the parties.
[10]
This court having made a finding that the
settlement agreement cannot be made an order of court. However, I am
of the view that
the applicant has made a case to be answered by the
first respondent in the alternative relief sought by the applicant.
Therefore
in the interest of justice and to avoid piecemeal
litigation, I made an order that this matter must proceed to trial
and be dealt
with all at once.
[11]
In light of the fact that the first
respondent did not file any opposing affidavit, the first respondent
is allowed to file such
affidavit and the matter could be set down
trial accordingly.
[12]
These are my reasons for the order.
ORDER
The order marked “X” that
I signed on 22 January 2024 is made an order of this court.
J DLAMINI
Judge of the High Court
Gauteng Division, Johannesburg
FOR THE APPLICANT:
EMAIL:
Adv. Z Khan
advkhan@vodamail.co.za
INSTRUCTED BY:
EMAIL:
NM Aboo Attorneys
info@nmaa.co.za
FOR THE RESPONDENT:
Adv.
Michael Z. Gwala
EMAIL:
gwala@group621.co.za
INSTRUCTED
BY:
Abdullah Mia Attorneys
EMAIL:
amiaattorneys@gmail.com