In the matter between
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
CARLOS ALBERTO DA SILVA
and
INTELIGRO (PTY) LTD
(Registration Number: 1998/004580/07)
In Re
INTELIGRO (PTY) LTD
(Registration Number: 1998/004580/07)
and
CARLOS ALBERTO DA SILVA
Not reportable
Case no: 5458/2021
APPLICANT
RESPONDENT
PLAINTIFF
DEFENDANT
Neutral citation: Da Silva v lnteligro (Pty) Ltd (5458/2021) [2026] ZAFSHC 381 (3
August 2026)
Coram: STEYNAJ
Heard: 23 July 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date for hand-down is
deemed to be 3 August 2026.
Summary: Application to compel - authority of deponent - litigation privilege -
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elements and requirements restated .
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ORDER
1 The late filing of the applicant's replying affidavit is condoned.
2 The application to compel discovery is dismissed.
3 The applicant is to pay the costs of this application on Scale B, such costs to
include the costs occasioned by the postponement on 18 June 2026.
Steyn AJ
Introduction
JUDGMENT
(1] This is an opposed application by the applicant to compel the respondent to make
available for inspection a preliminary report compiled by Mr. Brian Kerrin, an expert
agricultural loss adjuster, following his inspection of the applicant's farming premises on
1 December 2022. The applicant seeks this relief pursuant to a notice in terms of Uniform
Rule 35(3) delivered to the respondent on 12 June 2025, to which the respondent
responded on 8 September 2025, claiming that the report was privileged from disclosure
as it was 'prepared in contemplation of litigation'. The applicant thereafter launched this
application to compel on 22 May 2026.
[2] The respondent delivered its answering affidavit on 17 June 2026, deposed to by
Mr. Wayne Donald Forrester, an attorney practicing as such at Savage Jooste & Adams
Inc, acting on behalf of the respondent's insurer, Lombard Insurance Company Limited.
The applicant delivered its replying affidavit on 9 July 2026, approximately five court days
out of time, and now seeks condonation for the late delivery thereof.
Issues for determination
[3] The following issues fall for determination:
(a) Whether the applicant should be granted condonation for the late filing of his
replying affidavit;
(b) Whether Mr. Forrester has the requisite locus standi to oppose the application on
behalf of the respondent;
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(c) Whether the report by Mr. Kerrin is protected from disclosure by litigation privilege;
and
(d) Whether the report by Mr. Kerrin, being an interim expert report, is protected from
disclosure under the applicable rules of court.
Application for Condonation
[4] The explanation proffered for the late delivery of the applicant's replying affidavit
is that his attorney of record and counsel departed from Bloemfontein on .19 June 2026
for the recess period commencing on 22 June 2026 and were out of office until 1 July
2026. Upon their return, they immediately attended to the preparation of the replying
affidavit.
[5] Although I find this explanation to be wholly inadequate and indicative of a lack of
proper case management and a disregard for procedural timelines, I am of the view that
it remains in the interests of justice, and encompasses little prejudice to the respondent,
to grant condonation for the late filing of the replying affidavit. Condonation is accordingly
granted.
Locus standi of Mr. Forrester
[6] The applicant contends that Mr. Forrester, as the attorney for the respondent's
insurer, lacks the requisite locus standi to oppose the application because the insurer is
not a party to the proceedings and its interest has not been pleaded. It is trite that, for a
party to have the necessary legal standing (locus stand,), he or she must have a direct
and substantial interest in the subject matter of the judgment sought. Mr. Forrester has
not replaced the respondent but merely deposed to the affidavit in opposition of this
application. The inquiry into his locus standi is therefore irrelevant.
[7] The applicant argued that Mr. Forrester lacked the necessary authority to oppose
the current application. In Ganes and Another v Telecom Namibia Ltcf' the court gave a
complete answer to the issue of authority and held:
'(l)t is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The
'(l)t is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The
deponent to an affidavit in motion proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which
1 Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA).
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must be authorised.'
[8] It was held in PM v MM and Another2 that a deponent to an affidavit is a witness
who states, under oath, facts with in their personal knowledge. A deponent to an affidavit
swears or affirms to the truthfulness of such facts and is no different from a person who
testifies orally and needs no authorisation to do so. Mr. Forrester deposes to facts within
his personal knowledge as the attorney handling the counterclaim on behalf of the insurer
and in consultation with the respondent's attorneys . He is the person most intimately
acquainted with the facts concerning the commissioning of the report of Mr. Kerrin.
[9] Furthermore, the involvement of the insurer is a collateral fact, as was confirmed
in Smith v Banjo.3 The insurer's right to control the litigation is a matter res inter alios acta
and does not require pleading. The court held:
'The involvement of the insurer in a lawsuit is irrelevant and therefore it is not necessary to plead
such involvement. It has already been established that in subrogation claims the insurer takes the
place of the insured. The historical practice in our courts is to allow the insurer to institute action
in the name of the insured . .. Logically, the parties to a suit have the same rights and duties as
they would have had, had the matter not been a subrogated claim. I agree with the plaintiffs
submission that from a practical perspective the insurer's involvement in the suit is irrelevant. For
this reason, it is clearly not necessary for the plaintiff to plead the insurer's involvement in the
suit.'4
[1 O] The respondent referred the counterclaim to its insurer , who formally instructed
Savage Jooste & Adams Inc, to assist with the defence. This is a matter of internal
arrangement between the insured and the insurer and does not affect the procedural
posture of the case before this Court.
[11] The applicant's reliance on Re/lams (Pty) Ltd v James Brown & Hamer LtcP is
[11] The applicant's reliance on Re/lams (Pty) Ltd v James Brown & Hamer LtcP is
misplaced. That case stands for the proposition that discovery affidavits should generally
be made by the parties themselves. However, this is not a discovery affidavit in the strict
sense, it is an answering affidavit in an application to compel, where the deponent is
2 PM v MM and Another (2021] ZASCA 168; 2022 (3) SA 403 (SCA).
3 Smith v Banjo (2010) ZAKZPHC 73; 2011 (2) SA 518 (KZP).
4 Ibid para 12.
5 Re/lams (Pty) Ltd v James Brown & Hamer Ltd 1983 ( 1) SA 556 (N).
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explaining the basis for a claim of privilege. In any event, Mr. Forrester is in a position to
depose to the facts from his own knowledge, as he was directly involved in the instructions
to Mr. Kerrin. I, accordingly, find this argument without merit.
Litigation privilege over the report of Mr. Kerrin
(12] The requirements for litigation privilege are two-fold as was held in Competition
Commission v ArcelorMittal Sa Ltd and Others.6 Firstly, the document must have been
obtained with the dominant purpose of submitting it to a legal advisor for legal advice, and
secondly, that litigation was pending or contemplated as likely at the time.
[13] The Supreme Court of Appeal in Ibex RSA Holdco Ltd v Tiso Blackstar Group (Ply)
Ltd' definitively adopted the 'dominant purpose' test. The respondent's evidence is that
the report was commissioned for the dominant purpose of being submitted to the
respondent's legal advisors to assess the merits of the applicant's counterclaim, advise
on whether it should be defended, and provide tactical advice on the conduct of the
litigation. This is corroborated by the letter of instruction dated 21 September 2022, which
expressly states that Mr. Kerrin was to 'investigate the nature of the advice given and
whether there is any merit in the counterclaim' in order for the insurer to be advised
accordingly.
[14) The factual findings in the report were gathered, selected and expressed for the
dominant purpose of enabling the legal advisors to assess the merits of the counterclaim.
They are accordingly embedded in, and inseparable from, the privileged forensic exercise
for which the report was commissioned.
[15) It is common cause that the counterclaim was launched on 13 February 2022 and
that the report was commissioned on 21 September 2022. Litigation was therefore very
much 'pending' when the report was brought into existence.
[16] Litigation privilege is not confined to communications between a litigant and their
[16] Litigation privilege is not confined to communications between a litigant and their
attorney. It extends equally to communications between a litigant's legal advisor and any
third party, including expert witnesses, loss adjusters and investigators, provided that
6 Competition Commission v ArcelorMittal Sa Ltd and Others [2013] ZASCA 84; 2013 (5) SA 538 (SCA).
7 Ibex RSA Holdco Ltd v Tiso Blackstar Group (Pty) Ltd (2024] ZASCA 166; 2025 (2) SA 408 (SCA).
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those communications were made for the dominant purpose of pending or contemplated
litigation. The privilege belongs to the litigant, not the expert.
[17] The authorities are clear on this point. In Tshikomba v Mutual & Federal Insurance
Co Ltd,8 the court held that where an insurer commissions an independent assessor's
report for the purpose of defending an anticipated claim, the report is privileged. In Potter
v South British Insurance Co Ltd and Anothe~. the court held that:
'In the preparation for litigation it is sometimes necessary for the litigant to prepare documents ,
either by himself or by his agents, for submission to his lawyers, and there is an extension of the
scope of the privilege to cover such documents, with safeguards to ensure that the documents
covered should fall within the protection of the privilege. Where the communications pass not
between the party and his lawyers but between the party and a non-professional agent or third
party they are not privileged unless made ( 1) for the purpose of litigation existing or contemplated
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Interim expert reports and Rule 36(9)
[18] Rule 36(9) requires a party intending to call an expert witness to deliver a notice
setting out the substance of that expert's opinion and the reasons for it. The respondent
has not delivered any such notice and has confirmed it does not intend to call Mr. Kerrin
as an expert witness at trial. The obligation to disclose an expert report under rule 36(9)
is accordingly not triggered.
[19) Moreover, as held in Mason v Mason N0,11 there can be no justification for the
obligation(s) under rule 36(9) to be extended to provide for the discovery of
communications between the respondent's legal advisor and Mr. Kerrin, the instructions
given to Mr. Kerrin or the interim reports compiled in the course of the formulation of his
opinion. The cover page of the report is expressly marked as 'PRELIMINARY REPORT
PREPARED IN CONTEMPLATION OF LITIGATION PRIVILEGED DOCUMENT -
PREPARED IN CONTEMPLATION OF LITIGATION PRIVILEGED DOCUMENT -
CONFIDENTIAL'. Its interim nature alone renders it protected from disclosure.
Relevance
8 Tshikomba v Mutual & Federal Insurance Co ltd 1996 (3) SA 936 (A).
9 Potter v South British Insurance Co Ltd and Another 1963 (3) SA 5 (W).
10 Ibid at 7.
11 Mason v Mason NO Unreported, ECD, Port Elizabeth, Case No. 1830/2013.
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[20] The test for relevance in discovery is a wide one. As stated in Swissborough
Diamond Mines v Government of the RSA,12 a document must be discovered if it may,
directly or indirectly, enable the party seeking discovery to advance its own case or
damage the case of its adversary.
[21) The applicant has failed to provide an explanation as to why it requires the report.
It has not stated that the report is required to advance its own case, to undermine the
respondent's case, or to lead to a train of inquiry that may produce either of those
consequences. I accordingly find that the requirement of relevance has not been
established.
[22] For the reasons discussed above, I am satisfied that the report of Mr. Kerrin is
protected from disclosure by litigation privilege. It is an interim expert report, the
respondent has not indicated any intention to call Mr. Kerrin as an expert witness and the
applicant has failed to establish its relevance.
Costs
[23] The respondent seeks an order for costs against the applicant on the attorney and
client scale, alleging that the applicant has caused the respondent unnecessary expense
in having to oppose an application devoid of merit. An order for punitive costs, however,
is a sharp sword that courts reserve only for the most egregious conduct.
[24] The application, while ultimately unsuccessful, was based on a bona fide
interpretation of the parties' obligations. There is no evidence before me that the
application was brought recklessly, vexatiously or with the intent to harass the
respondent. I therefore find that costs must be awarded on the party-and-party scale.
[25] Accordingly, the following order is made:
1 The late filing of the applicant's replying affidavit is condoned.
2 The application to compel discovery is dismissed.
12 Swissborough Diamond Mines v Government of the Republic of South Africa 1999 (2) SA 279 (T).
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3 The applicant is to pay the costs of this application on Scale B, such costs to
include the costs occasioned by the postponement on 18 June 2026.
L STEYN
ACTING JUD OF THE HIGH COURT
Appearances
For the applicant:
Instructed by:
For the respondent:
Instructed by:
J Donnelly-Bornman
Donnelly-Bornman Law Inc
Bloemfontein .
WJ Groenewald
Gerrit Coetzee Attorneys
c/o Horn & Van Rensburg Attorneys
Bloemfontein.
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