Why foreign arbitration material remains discoverable in related South African disputes

Many assume that what is exchanged in an international arbitration will remain private within that process. However, a recent judgment from the KwaZulu Natal High Court in the MV Smart matter shows that this assumption no longer holds true.

Where the same incident gives rise to South African litigation, documents used in a foreign arbitration can be ordered to be disclosed in this local process. The decision is a practical reminder that once submissions have been exchanged in a private forum, they may well resurface in another despite the confidentiality.

Confidentiality and privilege

The case arose from the grounding and total loss of the cargo of coal carried by MV Smart at Richards Bay in 2013. The owners of the vessel pursued an arbitration in London against the charterers Minmetals Logistics Zhejiang Co Ltd while also suing the National Ports Authority in South Africa for about US$110 million in the South African High Court.

During the preparation for trial, the Port Authority requested access to the documents that had been exchanged in the London arbitration. These included witness statements, expert reports, transcripts, pleadings and written submissions. The owners refused, arguing that the submissions were confidential under English arbitration law and that parts of them were legally privileged.

The High Court was asked to rule on whether the documents had to be produced despite these objections. 

The court held that the documents were relevant to the South African court process. The arbitration and the South African proceedings arose from the same casualty and addressed overlapping issues, including seamanship, navigation, port safety and causation.

The court applied the usual test in relation to relevance in that a document must be disclosed if it may directly or indirectly strengthen a party’s case, weaken the other party’s case or lead to a useful line of enquiry. The judgment emphasised that relevance is interpreted broadly under South African discovery rules in court proceedings. 

The court then addressed confidentiality under arbitration proceedings. While English law treats arbitration as private, the court found that confidentiality, even in another jurisdiction, cannot override a party’s obligations under South African law in relation to discovery where litigation is already underway. 

In South African domestic arbitration, confidentiality is not automatically applicable and exists only if the parties agree contractually or if it is included in the rules of the relevant arbitration. Even then, confidentiality cannot prevent a court from accessing the arbitration record when disclosure is necessary to resolve the dispute.

Privilege was also raised as a defence, but the court drew a clear line on this point. Privilege was considered in relation to witness statements, expert reports, transcripts or submissions that were actually used in the London arbitration and had already been shared with the opposing side and with the tribunal. The court found that once this had happened, privilege in relation to documents of this nature is effectively waived. In reaching this conclusion, court drew an analogy with ordinary High Court litigation, where judges are entitled to consider and refer to any material that has entered the evidentiary arena, and parties cannot claim privilege over documents they themselves have chosen to disclose or rely upon. This principle reflects the broader South African approach that privilege cannot be used as a shield once the contents of a document have been put in issue or made part of the evidentiary record

Only documents created for legal advice or trial preparation that were never deployed in the arbitration could remain privileged. This aligns with South African evidentiary law, which protects litigation‑privileged material only where it was produced for the purpose of pending or contemplated litigation and has not been put into use in adversarial proceedings. Once witness statements, expert reports, submissions or similar documents are used as evidence in an arbitration the privilege is waived, and they become disclosable in later court proceedings. This distinction is especially important for construction disputes, where expert evidence is often created for one forum but may later become relevant in another. 

A further issue that arose was that the owners asked the court to delay disclosure until after the Port Authority had delivered its own expert reports. They argued that early access to the arbitration material would allow the Port Authority’s experts to tailor their views. The court rejected this argument. Under South African procedure, experts are expected to consider all available documents when forming their opinions. Discovery normally happens first so that experts work from a complete factual record. 

With the above in mind, the final order compelled the owners to disclose a wide range of arbitration documents.

How this impacts you

The judgment makes it clear that the expectations often associated with arbitration privacy do not carry over into South African litigation when the underlying issues in dispute are connected. For parties who operate across both arbitration and court processes, this is a significant development and needs careful consideration when selecting a forum in which to have their dispute heard. 

For the construction sector, the message is straightforward. International projects are complex and disputes often spill across multiple forums. Once evidence is presented in any formal process, it may travel. This includes expert analyses, witness accounts, technical reports, emails brought into evidence and transcripts of oral testimony. The MV Smart judgment shows that South African courts will prioritise relevance and fairness over the confidentiality normally associated with alternative dispute resolution processes. 

Businesses should therefore prepare arbitration materials with the awareness that they might later be read by a South African judge or used by an opponent in any related local litigation. This does not mean withholding information. Instead, it is about understanding the strategic value of what is shared, how it is presented and how consistent the evidence will need to be across different proceedings.

Clear, well reasoned expert reports and carefully prepared witness statements become an asset because they will need to be able to withstand scrutiny in whatever forum they appear. 

The decision also reinforces a broader reality around construction disputes. Disclosure is not simply a procedural hurdle. It directly affects the strength of a case. When evidence is consistent across forums, it builds credibility. When the documentary record contradicts a party’s position, it becomes a liability. The MV Smart case highlights that disclosure can either support your position or undermine it.

The key is to handle evidence from the outset with the expectation that it may surface again. 

Co-written by Itumeleng Nkosi and Christoff Ferreira of Pinsent Masons.