There is a moment in developing jurisprudence when uncertainty gives way to clarity. With Nemukula v Treptow (2024/105499) [2026] ZAGPJHC 40 (26 January 2026) (“Nemukula”), the Gauteng Division of the High Court has reached that moment. In Nemukula, the Johannesburg High Court aligned itself with Thulare J’s reasoning in Esperance Vineyards Farming (Pty) Ltd and Others v Liebenlogistics (Pty) Ltd (17144/24) [2025] ZAWCHC 399 (3 September 2025) (“Esperance”), a recent judgement delivered in the Western Cape High Court. The result is the restatement of the principle that subrogation does not confer party status, and insurers cannot assume the obligations of litigants without formally stepping into the arena.
In Nemukula, the application before the Court arose from a pending action in which the applicant had sought to compel the respondent to deliver a proper discovery affidavit under Uniform Rule 35. Pleadings had closed and a notice calling upon the respondent to discover had been served. What followed will sound familiar to readers of Esperance. Instead of delivering a discovery affidavit deposed to by the respondent, an affidavit deposed to by a representative of the respondent’s insurer was served. In the affidavit, the insurer asserted that it had indemnified the respondent and was therefore exercising subrogated rights. On that basis, it purported to make discovery. The applicant rejected the affidavit as defective and approached the Court for relief.
The main issue before Bhoola AJ was whether Rule 35’s requirements are met when an insurer, not joined as a party and relying only on subrogation, deposes to a discovery affidavit on behalf of an insured litigant. The applicant argued that Rule 35 requires discovery by the actual party to the litigation, and that subrogation does not alter that requirement.
The Court found in favour of the applicant.
Bhoola AJ emphasised that discovery is not a mere formality. A discovery affidavit is a sworn statement by a litigant, designed to ensure transparency, fairness, and accountability in civil proceedings. The obligation to make discovery rests expressly upon a party to the litigation.
Turning to subrogation, the Court traced the doctrine through the familiar authorities, including Ackerman v Loubser, Commercial Union Insurance Co of SA Ltd v Lotter and Rand Mutual Assurance Co Ltd v Road Accident Fund. These cases, Bhoola AJ noted, deal with the substantive rights of insurers following indemnification. They do not confer procedural standing.
The Court endorsed the reasoning in Esperance, citing it as authority for the proposition that subrogation does not dispense with the procedural requirement that discovery must be made by the cited party to the proceedings. An insurer may control litigation behind the scenes, but unless joined or substituted in terms of the rules of court, it remains a stranger to the proceedings.
Bhoola AJ confirmed that permitting an insurer who is not a party to the proceedings to make discovery would undermine the structure of the Uniform Rules. It would allow entities not cited before court, and not exposed to the full discipline of litigation, to perform core procedural acts reserved for litigants of record. That, the Court held, would erode accountability and blur the lines that the rules are designed to maintain.
The discovery affidavit was therefore declared non-compliant and set aside. The respondent was ordered to deliver a proper affidavit, deposed to by himself.
Notably, whereas in Esperance the Court drew a firm boundary, the Nemukula judgment explains why that boundary exists. Party status, the Court reminded litigants, is a procedural status acquired through citation, joinder, or substitution, and it cannot be outsourced to a non-party under the banner of subrogation.
For insurers, the position is now unmistakable. Where proceedings are conducted in the insured’s name, procedural obligations remain anchored to that choice. If insurers wish to act directly, the rules provide mechanisms to do so, but those mechanisms must be invoked formally.
Taken together, Esperance and Nemukula reflect a judiciary intent. While subrogation remains a powerful doctrine, it does not confer a licence to bypass the rules of court.
