On 22 December 2025, the KwaZulu-Natal High Court delivered an important judgment in The National Ports Authority, a division of Transnet (SOC) Ltd vs 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 related litigation in South Africa. This ruling confirms that the High Court compels disclosure even in cross-border arbitration contexts.
The private character of arbitration
The court was called upon to decide whether the arbitration record was relevant and compellable in the South African action. This decision arose 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 privilege against disclosure under South African procedural law. Furthermore, parties cannot use claims of privilege to withhold material already put in issue and deployed as evidence in arbitration. In this respect, the High Court compels disclosure where procedural fairness requires it.
The National Ports Authority, a division of Transnet (SOC) Ltd (TNPA), is the port authority for Richards Bay. TNPA launched an interlocutory application against the owners and underwriters of the MV Smart, who are also plaintiffs in the main damages action against TNPA. TNPA sought to compel 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 joined at the owners’ instance. However, Minmetals took no substantive part after joinder and filed no answering affidavits.
Factual background
The dispute arises from a casualty on 19 August 2013. The MV Smart ran aground near the harbour entrance while departing the Port of Richards Bay. The incident resulted in the total loss of the vessel and cargo. Multiple proceedings followed. The owners sued TNPA in South Africa for damages of approximately USD 110 million.
TNPA pleaded that negligence in navigation and handling by the master and crew caused the casualty. In at least one matter, TNPA raised contributory negligence. In parallel, the Owners pursued London arbitration proceedings against Minmetals under the charterparty. They were also involved in another London arbitration with cargo interests.
The limited summary of the London award placed before the court came from the judgment of Justice Butcher in the London appeal court. It recorded that there were shortcomings in the running of the port. However, the master had been negligent in handling the vessel, and this negligence caused the grounding. The court further noted 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 final pleadings and submissions used in the arbitrations. It also sought factual witness statements and expert witness statements presented as evidence in chief. In addition, TNPA requested expert reports, electronic presentations, full transcripts of hearings, written submissions, awards, rulings and documents connected to applications for leave to appeal. TNPA also sought relevant correspondence relating to the arbitrations, excluding correspondence genuinely without prejudice.
The owners resisted production on two grounds: English arbitration confidentiality and privilege. They also proposed delaying disclosure until after TNPA delivered its expert summaries. They expressed concern that TNPA wanted the arbitration record so its experts could tailor their reports.
The court’s findings
The court held that TNPA had established relevance. Applying the established wide approach to discovery, the court accepted that parties must produce documents if it is reasonable to suppose they contain information that may advance a party’s case or damage the opponent’s case. This includes documents that may lead to a train of enquiry.
The court also emphasised that constitutional considerations support a generous interpretation of discovery obligations. The same casualty generated both the arbitrations and the South African delictual dispute. The owners’ attorney had acknowledged that a significant portion of factual and expert evidence overlapped. Therefore, the relevance threshold was clearly met. In these circumstances, the High Court compels disclosure to ensure procedural fairness.
On confidentiality, the court accepted that English law treats arbitration as private. It recognises an implied duty of confidentiality extending to pleadings, submissions, witness proofs, transcripts and awards. However, the court stressed that confidentiality is not absolute. It is subject to recognised exceptions, including disclosure compelled by court order and disclosure necessary for protecting or pursuing legal rights. The court stated that confidentiality does not itself confer privilege against disclosure.
The court rejected the argument that the International Arbitration Act 2017 prevented disclosure. It held 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. It held that allowing confidentiality to obstruct South African discovery would impose an arbitrary restriction on fair trial rights. On any balancing exercise, disclosure prevailed. Once again, the High Court compels disclosure in favour of fair trial principles.
A timing condition delaying disclosure
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 presented to the arbitrators as evidence in chief. These materials had been 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. It found no merit in the proposition that viva voce evidence inherits privilege. Any protection for the arbitration record rested 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. It noted that discovery inevitably precedes expert summaries in South African practice. Early disclosure may reduce delays by avoiding supplementary expert reports.
Regarding the broad correspondence request, the court declined to order blanket production. It found that such an order would capture irrelevant logistical material. Instead, the court directed the owners to deliver a supplementary discovery affidavit identifying relevant correspondence. This correspondence must exclude genuine, without prejudice communications and be 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. It ordered costs against the Owners and Underwriters jointly and severally, including the costs of two counsel. We represented the successful applicant.
Significance of the judgment
The judgment is significant in South African law. It reinforces the primacy of local discovery principles and fair trial rights in cross-border disputes where parallel arbitrations often 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. 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. In this evolving procedural landscape, the High Court compels disclosure to protect transparency and fairness in litigation.
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