Authored by Jakop Mphofu and Rhaiya Naidu.
In August 2026, the Free State Division confirmed that an expert report commissioned by an insurer for the dominant purpose of obtaining legal advice in pending litigation is protected by litigation privilege. The judgment provides a useful summary on the circumstances in which reports prepared by loss adjusters, investigators and other experts may be withheld from disclosure as privileged.
The dispute concerned a preliminary report prepared by an agricultural loss adjuster following an inspection of farming premises. The report was commissioned after a counterclaim had been instituted and was obtained for the purpose of assessing the merits of the claim, determining whether it should be defended, and obtaining advice on the conduct of the litigation.
The court restated the requirements for litigation privilege. First, the document must have been obtained for the dominant purpose of being submitted to a legal adviser for legal advice or assistance. Secondly, litigation must have been pending or reasonably contemplated at the time the document was created. The applicable test is whether the dominant purpose of the document was to assist legal advisers in relation to litigation.
On the facts, both requirements had been satisfied. The insurer's letter of instruction expressly recorded that the expert was required to investigate the merits of the counterclaim so that legal advisers could assess the claim and advise on the defence. The report was commissioned several months after the counterclaim had already been instituted, meaning that litigation was plainly pending when the report came into existence.
The court confirmed that litigation privilege is not limited to communications between a litigant and its attorneys. The protection extends to communications involving third-party experts, investigators and loss adjusters, provided they are engaged for the dominant purpose of obtaining legal advice in relation to pending or contemplated litigation. The privilege belongs to the litigant, not to the expert who prepared the report.
The court considered the position of interim expert reports. As the insurer had confirmed that it did not intend calling the loss adjuster as an expert witness at trial, the disclosure obligation under the court rules that require advance notice of expert’s evidence had not been triggered. Communications with the expert, instructions provided to the expert, and interim reports produced during the formulation of the expert's opinion remained protected from disclosure.
The judgment is an important reminder that reports commissioned by insurers from loss adjusters, assessors and other experts for the dominant purpose of obtaining legal advice in pending litigation may attract litigation privilege and remain protected from disclosure.
Da Silva v Inteligro (Pty) Ltd (5458/2021) [2026] ZAFSHC 381 (3 August 2026)