Giannakis v Sithole (2020/17987) [2024] ZAGPJHC 1021 (9 October 2024)

Giannakis v Sithole (2020/17987) [2024] ZAGPJHC 1021 (9 October 2024)

The court found that the respondent's delay in filing her declaration was not reckless or intentional, but rather the result of lack of legal representation and financial constraints following her attorneys' withdrawal. The respondent, a lay person, did not appreciate the consequences of non-compliance with the March 2021 order. The declaration attached to her affidavit evidenced her bona fide intention to proceed. The applicant had accepted Mr Buku’s late declaration, which was on par with the respondent’s, negating any prejudice to the applicant or the court. The interests of justice required that the respondent, as executrix, be allowed to pursue the claim to safeguard the estate’s...

Citation
[2024] ZAGPJHC 1021
Parties
Applicant: Evangelos Giannakis; Respondent: Zandile Pertunia Sithole N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 October 2024
Case Number
2020/17987
Procedural Posture
Civil Interlocutory / Special Interlocutory Court; Application to Strike Out Claim and Counter Application for Condonation and Upliftment of Bar
Outcome
Application to strike out respondent’s claim dismissed; delay in filing respondent’s declaration condoned; notice of bar removed; timeframes extended; respondent directed to file declaration within 5 days; costs in the cause.
Judges
E Eksteen
Legal Topics
Condonation, Upliftment of Bar, Striking Out of Claim, Executor Locus Standi, Sale of Immovable Property
Civil Procedure Land and Property Condonation Upliftment of Bar Striking Out of Claim Executor Locus Standi Sale of Immovable Property

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Parties

Evangelos Giannakis

Applicant

Zandile Pertunia Sithole N.O.

Respondent

Procedural Posture

Civil Interlocutory / Special Interlocutory Court; Application to Strike Out Claim and Counter Application for Condonation and Upliftment of Bar

Legal Issues

  1. 1 Whether the respondent's claim should be struck out for failure to comply with the March 2021 order.
  2. 2 Whether the delay in filing the respondent's declaration should be condoned and the bar uplifted.
  3. 3 Whether the respondent, as executrix, has locus standi to pursue the claim regarding the deceased's immovable property.

Ratio Decidendi

The court found that the respondent's delay in filing her declaration was not reckless or intentional, but rather the result of lack of legal representation and financial constraints following her attorneys' withdrawal. The respondent, a lay person, did not appreciate the consequences of non-compliance with the March 2021 order. The declaration attached to her affidavit evidenced her bona fide intention to proceed. The applicant had accepted Mr Buku’s late declaration, which was on par with the respondent’s, negating any prejudice to the applicant or the court. The interests of justice required that the respondent, as executrix, be allowed to pursue the claim to safeguard the estate’s...

Court Disposition

Application to strike out respondent’s claim dismissed; delay in filing respondent’s declaration condoned; notice of bar removed; timeframes extended; respondent directed to file declaration within 5 days; costs in the cause.

Orders

  • The application to strike out the respondent’s claim is dismissed.
  • The delay in filing the respondent’s declaration is condoned.