Parties usually expect documents generated in a private arbitration to remain confidential. 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.
That position was confirmed by the High Court in December 2025 in litigation arising from the loss of a vessel at the Port of Richards Bay. The court ordered extensive disclosure of documents from confidential London arbitration proceedings for use in related South African litigation.
Why this matters
Arbitration is often used to resolve charterparty, cargo, or insurance disputes privately and efficiently. Related South African litigation may nevertheless follow against third parties such as port authorities, terminals, pilots, or service providers. Parties frequently assume that the arbitration record can be ring-fenced from court proceedings. The judgment confirms that this assumption is misplaced.
Once a party is involved in South African litigation arising from the same incident, it may have no practical choice about disclosing arbitration material if it is relevant to the issues before the court. Arbitration confidentiality does not insulate such material from South African discovery obligations.
Relevance comes first
South African discovery rules apply a wide test of relevance. Documents must be disclosed if it is reasonable to suppose that they may assist a party’s case or damage the opposing party’s case, including by leading to further lines of enquiry. This applies even if the arbitration and the court proceedings are framed differently, for example contract in arbitration and delict in court.
Where the same casualty underlies both proceedings, relevance will commonly be established. In this case, the court placed weight on the overlap between factual and expert evidence used in the arbitration and the issues arising 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 is not a shield
The court accepted that English law treats arbitration as private and subject to an implied duty of confidentiality. However, confidentiality is not absolute. It yields where disclosure is ordered by a court or is reasonably necessary to protect or enforce legal rights.
South African law does not recognise confidentiality, as such, 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.
By pursuing arbitration and South African litigation in parallel on overlapping issues, the parties were held to have waived privilege in materials deployed as evidence and to have lost the benefit of confidentiality in respect of those materials.
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 is lost once evidence is deployed
A critical practical finding concerned privilege. Internal trial preparation material remains protected. However, witness statements and expert reports presented as evidence in chief in an arbitration and disclosed to the opposing party lose their privileged character.
Once evidence is deployed to persuade a tribunal, it cannot later be withheld from a court on the basis that it was originally prepared for arbitration. Transcripts of sworn evidence were treated in 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.
No tactical delay
The court also refused 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.
Practical takeaways
Parties involved in arbitrations connected to South African disputes should proceed on the basis that arbitration materials may become 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.
The National Ports Authority, a division of Transnet (SOC) Ltd v The Owners and Underwriters of the MV Smart (High Court, KwaZulu-Natal Local Division, Durban, Admiralty Jurisdiction, judgment delivered 22 December 2025)