Subrogation vs Procedure: who may swear Discovery under Rule 35?

Background

The Johannesburg High Court recently dealt with an interlocutory application concerning compliance with discovery obligations under Uniform Rule 35(1) in pending insurance dispute action proceedings between the parties.

In brief, the applicant served a Rule 35(1) notice requiring discovery on oath; the deadline passed without delivery of a compliant discovery affidavit. Thereafter, an unsigned discovery affidavit was served, purportedly deposed to by a legal specialist of the respondent’s insurer, asserting subrogation, rather than by the respondent personally. The applicant treated that affidavit as non‑compliant hearsay, contending discovery must be sworn by the litigant of record, and applied to compel proper discovery in terms of Rule 35(7).

Issues before the court

The court was called upon to adjudicate on the following issues:

1. Whether a discovery affidavit under Uniform Rule 35 deposed to by a third‑party insurer, asserting subrogation but not joined as a party, is valid for purposes of the action.
2. Whether condonation should be granted for the late filing of the respondent’s answering affidavit.

Summary of arguments

The respondent argued the application was moot because discovery had effectively been made via the insurer’s affidavit. The applicant countered that Rule 35 requires discovery on oath by the litigant of record; an affidavit by a non‑party insurer is procedurally defective and amounts to inadmissible hearsay, thus necessitating an order compelling proper discovery by the respondent personally.

The law

The court set out the framework of Rules 35(1), 35(2) and 35(7), emphasising that discovery is a sworn, party‑bound obligation ensuring fairness and transparency, and that non‑parties cannot assume litigants’ procedural obligations absent joinder, substitution or third‑party procedures.

The court discussed the doctrine of subrogation and authorities including Ackerman v Loubser, Commercial Union Insurance Co of SA Ltd v Lotter, and Rand Mutual Assurance Co Ltd v RAF, noting these cases recognise insurers’ derivative rights but do not confer procedural party status in existing litigation. It relied on the principle reaffirmed in Esperance Vineyards Farming (Pty) Ltd v Liebenlogistics (Pty) Ltd that only the litigant of record may depose to discovery.

On condonation, the court applied the interrelated factors from Melane v Santam Insurance Co Ltd.

Court decision and reasons

The court held that subrogation does not, without proper procedural steps, render an insurer a “party” as defined in Rule 1, and therefore an insurer cannot validly depose to discovery in its own name for a litigant not joined to the proceedings. The insurer‑deposed discovery affidavit was declared non‑compliant with Rule 35 and set aside; the respondent was directed to deliver a proper discovery affidavit deposed to by himself within ten court days, failing which the applicant could seek striking‑out or dismissal relief.

Condonation for the late answering affidavit was granted, the delay being limited and the interests of justice favouring determination on the merits.

Conclusion

This decision is significant for insurance and civil procedure because it draws a clear line between an insurer’s substantive subrogation rights and the procedural status required to perform core acts such as discovery, reinforcing that discovery must be deposed to by the party of record unless the insurer is properly joined or substituted. It promotes accountability, prevents blurred lines of responsibility, and safeguards the integrity of discovery as a cornerstone of fair trial processes.