Subrogation Vs Procedure: Who May Swear Discovery Under Rule 35?

Background

The Johannesburg High Court recently dealt with an interlocutory application concerning compliance with discovery obligations under Uniform Rule 35(1) in pending insurance dispute action proceedings between the parties.

In brief, the applicant served a Rule 35(1) notice requiring discovery on oath; the deadline passed without delivery of a compliant discovery affidavit. Thereafter, an unsigned discovery affidavit was served, purportedly deposed to by a legal specialist of the respondent's insurer, asserting subrogation, rather than by the respondent personally. The applicant treated that affidavit as non‑compliant hearsay, contending discovery must be sworn by the litigant of record, and applied to compel proper discovery in terms of Rule 35(7).