On 22 December 2025, the KwaZulu Natal High Court delivered an important judgment in The National Ports Authority, a division of Transnet (SOC) Ltd v The Owners and Underwriters of the MV Smart [Case No. A 11/2016]. The court directed that a substantial body of documents produced in confidential London arbitration proceedings be disclosed for purposes of related litigation in South Africa.
The court was called upon to decide whether the arbitration record was relevant and compellable in the South African action despite objections based on confidentiality, privilege, and a proposed delay in production. The court affirmed that the private character of arbitration does not, on its own, confer any privilege against disclosure under South African procedural law. Further claims of privilege cannot be used to withhold material that has already been put in issue and deployed as evidence in the arbitration.
The National Ports Authority, a division of Transnet (SOC) Ltd (TNPA), the port authority for Richards Bay, launched an interlocutory application against the Owners and Underwriters of the MV Smart (the Owners), the vessel’s owners and insurers, who are also plaintiffs in the main damages action against TNPA, to compel the production of specified categories of documents generated in related London arbitration proceedings. Minmetals Logistics Zhejiang Co Ltd (Minmetals), the vessel’s charterer and the Owners’ counterparty in the charterparty arbitration, was subsequently joined at the Owners’ instance but took no substantive part after joinder and filed no answering affidavits.
Factual background
The dispute arises from a casualty on 19 August 2013, when the MV Smart ran aground in the vicinity of the harbour entrance while departing the Port of Richards Bay, resulting in the total loss of the vessel and cargo. Multiple proceedings followed. The Owners sued TNPA in South Africa for damages in the sum of approximately USD 110 million. TNPA’s pleaded stance in these matters includes that the casualty was caused by negligence in the navigation and handling of the vessel by the master and crew and, in at least one matter, TNPA raised contributory negligence. In parallel, the Owners pursued London arbitration proceedings against Minmetals under the charterparty and were involved in another London arbitration with cargo interests. The limited summary of the London award placed before the court, which comes from the judgment of Justice Butcher in the London appeal court, recorded that, …there were some shortcomings in the running of the port, however the master had been negligent in his handling of the vessel and it was this that caused the grounding of the vessel; and that this negligence “broke the chain of causation” arising from any unsafety of the port.
Against that background, TNPA delivered a Rule 35(3) notice calling for “arbitration related documents” from the Owners. TNPA sought the final pleadings and submissions used in the arbitrations, factual witness statements and expert witness statements presented as evidence in chief, expert reports and electronic presentations placed before the arbitrators, full transcripts of the hearings, written submissions, awards and rulings, and documents connected to applications for leave to appeal. TNPA also sought relevant correspondence relating to the arbitrations, excluding correspondence of a genuinely without prejudice nature. The Owners resisted production on two principal grounds: English arbitration confidentiality, and privilege. They also advanced a timing proposal that any disclosure should be delayed until after TNPA had delivered its expert summaries, expressing concern that TNPA wanted the arbitration record so its experts could tailor their reports.
The court's finding
The court held that TNPA had established relevance. Applying the established wide approach to discovery, the court accepted that documents must be produced if it is reasonable to suppose they contain information that may, directly or indirectly, advance a party’s case or damage the opponent’s case, including by leading to a train of enquiry. The court also emphasised that constitutional considerations support a generous interpretation of discovery obligations. In circumstances where the same casualty generated both the arbitrations and the South African delictual dispute, and where the Owners’ own attorney had acknowledged that a significant portion of factual and expert evidence overlapped, the relevance threshold was clearly met.
On confidentiality, the court accepted that English law treats arbitration as private and recognises an implied duty of confidentiality extending to pleadings, submissions, witness proofs, transcripts and awards, but stressed that confidentiality is not absolute. It is subject to recognised exceptions, including disclosure compelled by court order and disclosure necessary for the protection or pursuit of legal rights. The court then stated the decisive South African proposition in clear terms, that confidentiality does not in itself confer privilege against disclosure. It rejected the argument that the International Arbitration Act 2017 prevented disclosure, holding that the statutory exception permitting disclosure to protect or pursue “a legal right” was not confined as narrowly as suggested. Importantly, the court characterised arbitration confidentiality as a private phenomenon created by contracting parties for their own interests and held that allowing it to obstruct South African discovery would impose an arbitrary restriction on fair trial rights, particularly where no protectable interest was identified. On any balancing exercise, disclosure prevailed.
On privilege, the court distinguished between internal trial preparation material in attorney files or counsel briefs, which remains protected, and witness statements and expert materials that were presented to the arbitrators as evidence in chief and disclosed to the opposing party and tribunal. Once published in arbitration, the court held, “the privileged quality” of those statements was abandoned. The court also rejected the contention that transcripts of sworn testimony are privileged in the same manner as preparatory documents, finding no merit in a proposition that viva voce evidence inherits privilege. Any protection for the arbitration record would rest only on confidentiality, which did not bar disclosure in this context.
The court refused to impose a timing condition delaying disclosure until after TNPA’s expert summaries, noting that in South African practice discovery inevitably precedes expert summaries and that early disclosure may reduce delays by avoiding supplementary expert reports. As to the broad correspondence request, the court declined to order blanket production because it would capture much irrelevant logistical material and instead directed the Owners to deliver a further supplementary discovery affidavit identifying relevant correspondence, excluding genuinely without prejudice communications, assessed in light of the court’s conclusions on confidentiality and privilege.
The court ordered the Owners and Underwriters to produce the specified arbitration materials within 15 days and ordered costs against the Owners and Underwriters jointly and severally, including the costs of two counsel. Webber Wentzel represented the successful Applicant.
Significance of the judgment
The judgment is significant in South African law because it reinforces the primacy of local discovery principles and fair trial rights in cross-border disputes where parallel arbitrations are often used to develop evidence first. It makes clear that parties cannot ring fence a relevant arbitration record behind confidentiality assertions when South African proceedings require disclosure. The judgment also provides practical guidance that materials deployed to persuade a tribunal, especially expert evidence and witness statements presented as evidence in chief, should be expected to be discoverable in related South African litigation arising from the same incident.
