IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 17144/24
In the matter between
ESPERANCE VINEYARDS FARMING (PTY) LTD 1ST APPLICANT
PAUL JACQUES NAUDE 2ND APPLICANT
PAUL JACOBUS NAUDE 3RD APPLICANT
PAUL JACQUES NAUDE NO 4TH APPLICANT
ARNOLDUS JACOBUS STOFBERG NO 5TH APPLICANT
PAUL JACOBUS NAUDE NO 6TH APPLICANT
AND
LIEBENLOGISTICS (PTY) LTD RESPONDENT
Date of Hearing : 27 June 2025
Date of Delivering : 03 September 2025
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JUDGMENT
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THULARE J
ORDER
(a) The respondent is compelled to comply with the applicants’ notice in terms of rule
35 which was served on the respondent on 20 December 2024 within 10 days of
this order.
(b) Should the respondent fail to comply with para (a) above the applicants are
entitled to approach the court to have the respondent ’s claim dismissed with
costs.
(c) The respondent to pay the costs
[1] This is an application in terms of Rule 35(7) of the Uniform Rules of Court to compel
the respondent, which is the plaintiff in the main action , to discover, and if it failed, to
allow the applicants to approach the court to have the respondents action dismissed .
The notice was served on the respondent on 20 December 2024 and gave the
respondent 20 days within which to discover. The respondent did not deliver its
discovery affidavit. Letters on four different dates were sent to the respondent between
January and April, and they did not result in the discovery. A Rule 30A notice was also
served on 11 April 2025 and still there was no discovery. This application was launched
in May 2025 and set down for 24 June 2025.
[2] On 20 June 2025 the respondent filed what it considered its discovery affidavit. The
deponent thereto, Leon De Villiers (de Villiers) was a Director of STP Insurance Brokers
underwritten by Lloyds of London (STP), the respondent’s insurer in the matter. In the
affidavit De Villiers indicated that the r ights of the respondent were subrogated to its
insurers, and that he had in his possession or under his control the documents relating
to the action , which were divided into the First and Second Parts of a Schedule . The
respondent did not object to the First Part but objected to producing the documents in
the second part of the Schedule.
[3] The applicants rejected the r espondent’s discovery affidavit in that the affidavit did
not constitute proper discovery as the deponent to the affidavit was not a party to the
proceedings and that the doctrine of subrogation was apposite as insurance law
assumed. The respondent did not file any notice to oppose and answering papers.
However, at the hearing of the application, it was represented by Counsel who argued
the matter.
RULE 35(7)
[4] Rule 35(7) reads:
“35. Discovery, inspection and production of documents
(7) If any party fails to give discovery as aforesaid or, having been served with a
notice under subrule (6), omits to give notice of a time for inspection as aforesaid
or fails to give inspection as required by that subrule, the party desiring discover y
or inspection may apply to a court, which may order compliance with this rule
and, failing such compliance, may dismiss the claim or strike out the defence.”
Rule 1 defines “party” as ‘“party” or any reference to a plaintiff or other litigant in
terms, includes such party’s attorney with or without an advocate, as the context
may require .’ A litigant is someone directly involved in a lawsuit or legal
proceedings. Th at someone is involved in the sense that they are making a
formal legal complaint about someone or a complaint is made about them . It is
someone whose involvement is central to the resolution of a legal matter. The
Rules define specific roles and responsibilities of each party or litigant, to
navigate the legal process. The distinct roles, in the nature of the matter before
me, an application , causes the assumption of the role as an applicant who
initiates by filing a document that outlines the claim and the relief sought, to
formally commence the legal process; or a respondent upon whom legal
documents are delivered, setting out the complaint, compelling a response and
prompting them to defend.
[5] STP is not cited as a party in the pleadings. It did not become a party to the legal
dispute in these proceedings when it indemnified the respondent for the loss it allegedly
suffered. Rule 35 required a discovery affidavit to be deposed to by a party to the
proceedings. That party is the respondent. STP Insurance Brokers, not being a party to
the app lication cannot th rough its director discover on behalf of the respondent [ Le
Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty) Ltd and Others
(17111/2021) [2025] ZAWCHC 260 (20 June 2025) at para 35 to 68]. In the
circumstances, the respondent has not delivered its discovery affidavit.
[6] I am not persuaded that Rand Mutual Assurance Co Ltd v Road Accident Fund 2008
(6) SA 511 (SCA) is authority for the proposition that STP, as the respondents indemnity
insurer in the matter, is a party to the proceedings. At para 17 it was said:
“[17] Nevertheless this court, with reference to Ackerman v Loubser and Teper, held that
-
‘ an insurer under a contract of indemnity insurance who has satisfied the claim of the
insured is entitled to be placed in the insured's position in respect of all rights and
remedies against other parties which are vested in the insured in relation to the subject
matter of the insurance. This is by virtue of the doctrine of subrogation which is part of
our common law.’
What this court had in mind in Commercial Union were the three rules of the lex
mercatoria (and not only of the English law of insurance): that the wrongdoer is not
entitled to benefit from the fact that the person wronged was insured; that the insured
may not be enriched at the expense of the insurer by receiving both the insurance
indemnity and damages fro m the wrongdoer; and that the insurer replaces the insured,
ie the insured is subrogated by the insurer, which entitles the insurer to claim the loss
ie the insured is subrogated by the insurer, which entitles the insurer to claim the loss
from the wrongdoer.”
An inductive reading of Rand Mutual makes it plain that STP had an election whether to
sue in its own name, or in the name of the respondent. The judgment did not hold that
once the requirements for subrogation were met, the insurer automatically became a
party to proceedings where it was never cited as a party. STP elected to sue in the
name of the respondent. It must be bound to its election , as to who is the party before
the court in th e proceedings. It cannot be allowed to elect to be anonymous when its
suits it, and lead from the front when it so elects, in the same proceeding s, without first
attending to its choice of who is the party to litigate in the matter. STP must respect
procedural rules of the court once it has made it election. As the law of subrogation in
insurance law stands STP was free to sue in its own name or in the name of the
respondent. It is not free to change names of the litigant who is suing the applicants at
its pleasure during the same proceedings and then claim t o rely on subrogation in
insurance law. For these reasons the order is made.
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DM THULARE
JUDGE OF THE HIGH COURT