In
Nemukula v Treptow, the Johannesburg High Court reminded that subrogation, although well‑established in insurance law, is not a procedural licence permitting an insurer to take litigation steps reserved exclusively for parties of record. Subrogation does not convert an insurer into a litigant of record, nor does it entitle the insurer to act in the name of the insured without compliance with procedural requirements.
The application before the Court arose in the context of a pending action in which the applicant had instituted a claim and the respondent had filed a counterclaim. Once pleadings had closed, the matter progressed to the discovery stage, an essential component of the litigation process that requires each party to disclose, on oath, all documents and recordings relevant to the issues in dispute. This process enables both the opposing party and the Court to ventilate those issues fairly and comprehensively.
The respondent's discovery affidavit was not deposed to by the respondent but by a third-party. The deponent identified himself as a representative of a third-party insurer, which alleged that it had indemnified the respondent and asserted a right to act by virtue of subrogation. The applicant maintained that the respondent must personally depose to the affidavit. The Court was called upon to decide whether the respondent's affidavit complied with Uniform Rule 35.
The Court held that the obligation to make discovery is expressly and exclusively imposed on a party to the proceedings. A discovery affidavit is not a mere formality; it is a sworn statement made under oath regarding the existence, possession, and whereabouts of relevant documents. It is a procedural mechanism designed to ensure fairness and transparency. The Uniform Rules do not allow a non-party to assume the procedural obligations of a litigant without formal joinder, third-party notice or substitution.
Although the doctrine of subrogation is well established in insurance law, the Court drew a clear distinction between substantive rights and procedural status. Subrogation may entitle an insurer, once it has indemnified its insured, to step into the insured's shoes and exercise rights the insured had against third parties responsible for the loss.
However, these principles related to the insurer's substantive position following indemnification, do not, by themselves, confer procedural party status on an insurer in existing litigation it has not joined.
The Court further held that a “party" is confined to those litigants formally cited in the proceedings. Party status is a procedural matter, regulated by the Uniform Rules and the common law on joinder, substitution, and intervention. Subrogation governs the relationship between insurer and insured, regulating their internal rights and the insurer's entitlement to pursue recovery. It does not, without procedural steps, transform the insurer into a litigant in pending proceedings, nor allow a separate juristic person whose procedural status is undefined to perform core procedural acts.
On the facts, the insurer had not been cited, no order had been granted joining it as a party, and no third-party procedure had been invoked. The affidavit was expressly made by the insurer in its own capacity and, in these circumstances, was not an affidavit by a “party" as contemplated in Rule 35.
The Court concluded that the discovery affidavit was defective, declared it non-compliant and set it aside and directed the respondent to deliver a proper discovery affidavit, deposed to by himself, within ten court days, with costs awarded against the respondent.
