Insurers and other parties should assume that any arbitration evidence relevant to the same dispute may be discoverable in South Africa, the High Court has confirmed.
In a December 2025 judgment arising from the loss of the MV “Smart” at the Port of Richards Bay, the KwaZulu-Natal High Court ordered the owners and insurers of the vessel to disclose extensive documents from confidential London arbitration proceedings for use in related local litigation.
In an analysis on Norton Rose Fulbright’s website, Andrew Robinson, director of the firm’s Transport Practice in South Africa, and Nick Veldman, shipping and marine insurance partner, noted that while parties often assume arbitration materials remain private, in South Africa “that expectation does not hold once the same dispute, or the same casualty, becomes the subject of related or parallel court proceedings. Where arbitration material is relevant to issues before a South African court, it is likely to be discoverable, notwithstanding confidentiality and objections based on privilege.”
The dispute behind the ruling
The National Ports Authority (TNPA) sought the documents after the grounding of the MV “Smart” in 2013 destroyed the vessel and its coal cargo. The vessel’s owners and insurers are claiming roughly USD 110 million from TNPA, alleging port negligence, while TNPA contends the ship’s master and crew were partly responsible.
Previously, the owners and insurers had taken the charterers, Minmetals Logistics, to arbitration in London. The process generated witness statements, expert reports, submissions, and an award. The owners initially offered to share the documents only under conditions, citing confidentiality and concerns that TNPA might use the material to “tailor” its expert evidence. TNPA rejected the timing restrictions and requested full, unconditional access.
Despite arguments over relevance, privilege, and confidentiality, the court held that much of the arbitration evidence, particularly expert reports, was relevant to TNPA’s case.
The ruling tested whether documents from a confidential arbitration could be used in related South African litigation, confirming that confidentiality is not an absolute shield.
Wide relevance drives disclosure
Robinson and Veldman noted that South African discovery rules apply a broad test of relevance. Documents must be disclosed if they could assist a party’s case or damage the opposing party’s case, “even if the arbitration and the court proceedings are framed differently, for example contract in arbitration and delict in court.”
They said the High Court placed weight on overlaps between factual and expert evidence used in the arbitration and issues in the South African action.
“For clients, the key point is this: if arbitration evidence addresses causation, fault, or operational conduct that is also in issue in South African court proceedings, it is likely to be regarded as relevant.”
Confidentiality cannot block disclosure
The court acknowledged that English law treats arbitration as private, but Robinson and Veldman stressed that “confidentiality is not absolute. It yields where disclosure is ordered by a court or is reasonably necessary to protect or enforce legal rights.”
They added that South African law does not recognise confidentiality as a basis for refusing discovery.
“Arbitration confidentiality is a private arrangement between contracting parties and cannot be relied upon to obstruct South African discovery rules or undermine fair trial rights, particularly where no specific protectable interest is identified.”
The lawyers explained that by pursuing arbitration and South African litigation in parallel, parties were held to have waived privilege in materials deployed as evidence and lost the benefit of confidentiality.
“Arguments based on the International Arbitration Act were also rejected. The statutory exception permitting disclosure to protect or enforce a legal right was interpreted broadly and was not confined to disputes between the original arbitration parties.”
Privilege ends when evidence is used
Robinson and Veldman highlighted that witness statements and expert reports presented as evidence in arbitration and disclosed to the opposing party “lose their privileged character”. They said transcripts of sworn evidence were treated the same way.
“They are not privileged merely because similar material exists in lawyers’ files. Any protection rests on confidentiality, which did not prevent disclosure in this case.”
The court also rejected attempts to delay disclosure until after expert summaries were exchanged.
“In South African practice, discovery precedes expert summaries. Attempts to reverse that sequence on the basis of alleged tactical disadvantage were rejected.”
Key lessons for insurers
Robinson and Veldman advise that parties involved in arbitrations connected to South African disputes should assume that arbitration materials may be disclosable.
“This is particularly relevant when deciding whether to run arbitration first, whether to reuse experts across forums, and how evidence is presented in arbitration. Confidentiality expectations must be calibrated to the reality of parallel litigation in South Africa.”
Read the full judgment here.
