Vally v ELA Asset Management and Another (2023/030182) [2024] ZAGPJHC 601 (27 June 2024)
The court found that the settlement agreement between the applicant and first respondent could not be made an order of court because it was not concluded to settle pending litigation. However, the applicant established a prima facie case for alternative relief regarding payment under the agreement. In the interests...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 601
- Parties
- Applicant: Shehnaaz Ahmed Vally; Respondent: ELA Asset Management; Respondent: The Financial Sector Control Board
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2023/030182
- Procedural Posture
- Urgent Application / Reasons for Order Following Urgent Application
- Outcome
- The application to make the settlement agreement an order of court is refused, but the matter is referred to trial for determination of the alternative relief sought.
- Judges
- Dlamini
- Legal Topics
- Settlement Agreement, Enforcement of Settlement, Court Order, Financial Services Dispute
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shehnaaz Ahmed Vally
Applicant
ELA Asset Management
Respondent
The Financial Sector Control Board
Respondent
Procedural Posture
Urgent Application / Reasons for Order Following Urgent Application
Legal Issues
- 1 Whether the settlement agreement between the applicant and first respondent can be made an order of court.
- 2 Whether the applicant is entitled to alternative relief for payment under the settlement agreement.
- 3 Whether the absence of pending litigation precludes the settlement agreement from being made an order of court.
Ratio Decidendi
The court found that the settlement agreement between the applicant and first respondent could not be made an order of court because it was not concluded to settle pending litigation. However, the applicant established a prima facie case for alternative relief regarding payment under the agreement. In the interests of justice and to avoid piecemeal litigation, the court ordered that the matter proceed to trial so that all issues could be resolved together. The first respondent, having failed to file an opposing affidavit, was granted leave to do so before the matter is set down for trial.
Court Disposition
The application to make the settlement agreement an order of court is refused, but the matter is referred to trial for determination of the alternative relief sought.
Orders
- The order marked 'X' signed on 22 January 2024 is made an order of this court.
- The first respondent is permitted to file an opposing affidavit before the matter is set down for trial.
Full Case Text
Judgment text and source record
46 paragraphs
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
1ST RESPONDENT
THE FINANCIAL SECTOR CONTROL BOARD
2ND 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