When insurers step into litigation.

The ink on Moosa AJ’s judgment in Le Bonheur^[1] had barely dried when Thulare J delivered another instalment in the ongoing dialogue on the intersection between insurance law and civil procedure. In Esperance Vineyards Farming (Pty) Ltd and Others v Liebenlogistics (Pty) Ltd (17144/24) [2025] ZAWCHC 399 (3 September 2025), the court revisited the doctrine of subrogation, this time through the lens of the process of discovery and compliance with Uniform Rule 35.

The matter concerned an interlocutory application brought in terms of Uniform Rule 35(7). Liebenlogistics, the respondent and plaintiff in the main action, was faced with an application to compel discovery. The applicants had delivered a notice to discover upon the respondent during December 2024. After having followed up on the respondent’s discovery affidavit on several occasions, the applicants eventually delivered a notice in terms of Rule 30A in April 2025 (such notice stating that the respondent had failed to comply with the procedural rules of court). Despite these efforts, no discovery affidavit was forthcoming. The applicants therefore requested the court to compel the respondent to deliver its discovery affidavit.

Prior to the hearing of the interlocutory application, the respondent delivered its discovery affidavit. The discovery affidavit was not deposed to by a representative of the respondent itself, but by a director of STP Insurance Brokers underwritten by Lloyd’s of London (the respondent’s insurer). The insurer sought to justify its intervention by invoking its subrogated rights.

The applicants objected to the discovery affidavit, on the basis that the affidavit was defective in that it had not been deposed to by a representative of the respondent and therefore failed to comply with Rule 35.

At the hearing of the matter, the core issues were as follows, (1) whether an insurer, acting in terms of its subrogated rights, can depose to a discovery affidavit on behalf of its insured who is a party to litigation, and (2) whether such an affidavit meets the requirements of Rule 35.

The courts’ answer: an emphatic no. The court drew a firm distinction between party status and subrogated rights. Rule 35, the court noted, requires discovery to be made by a party to the proceedings. The court emphasised that the insurer did not become a party to the litigation simply by virtue of having indemnified the respondent. The court clarified that although subrogation permits an insurer to pursue claims in the name of an insured, this does not, of itself, confer party status and therefore does not make the insurer a party to the proceedings.

The court further held that the respondent’s reliance on Rand Mutual Assurance Co Ltd v Road Accident Fund 2008 (6) SA 511 (SCA) was misplaced, noting that while the doctrine of subrogation permits an insurer to elect to sue either in its own name (where no procedural prejudice arises) or in the name of its insured, it does not render the insurer an automatic party to proceedings where it was never cited as a party thereto. Once the insurer makes its election to sue in the name of its insured, it is bound to its election. The insurer cannot be allowed to elect to be anonymous when it suits the insurer, and lead from the front when it so elects. Put differently, it could not toggle between anonymity and control depending upon convenience.

Accordingly, the court directed the respondent to comply with the applicants’ discovery notice within 10 days of the Order, failing which the applicants would be entitled to apply for dismissal of the respondent’s claim against them in the main action.

This judgment reaffirms a fundamental principle: the doctrine of subrogation may transfer rights, but it does not bend the rules of procedure. The insurer’s control is tied to the insured’s status as litigant, no more, no less. Once an insurer elects to sue in the name of the insured, it must respect the procedural obligations that come with that role. Discovery, like other procedural obligations, remains the preserve of the party before the court.

[1] Le Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty) Ltd and Others (17111/2021) [2025] ZAWCHC 260 (20 June 2025).

Esperance Vineyards Farming (Pty) Ltd and Others v Liebenlogistics (Pty) Ltd (17144/24) [2025] ZAWCHC 399 (3 September 2025)