Why Confidentiality Does Not Equal Privilege Under South African Law

Andrew Clark, managing partner at Cox Yeats

This judgment clarifies the distinction under South African law between the principles of confidentiality, on the one hand, and privilege, on the other. It is a salutary warning to litigants that a claim to confidentiality will not be upheld in circumstances where the documents in question are not, by their nature, privileged and are relevant to issues in the litigation.

MV “Smart”

In December 2025, Olsen J, sitting in the Durban division of the High Court, heard an application by Transnet National Ports Authority (a division of Transnet (SOC) Ltd) (TNPA) for an order directing the owners and underwriters of the MV “Smart” (Owners) to produce certain documents and correspondence for inspection.

This application was heard in the context of an action that the Owners have brought against TNPA is claiming damages of approximately $10m following the grounding of the MV “Smart” whilst leaving the port of Richards Bay on 19 August 2013. The trial is set down for hearing in July 2026.

In addition to the action proceedings in the High Court, arbitration proceedings between the charterers of the vessel and the Owners took place in London. In the arbitration proceedings, the Owners contended that under the charterparty, the charterers had breached a “safe port warranty” because the vessel had been sent to Richards Bay to load a cargo of coal.

It transpired that the charterers were successful in defending the claim for breach of a safe port warranty by the Owners in the London arbitration. Following an appeal to the Appeal Court in England, that Court noted that the arbitration tribunal had found that: “… the master had been negligent in his handling of the vessel, and it was this that caused the grounding of the vessel; this negligence broke the chain of causation arising from any unsafety of the port.”

In response to a request by TNPA in the High Court proceedings for the Owners to provide various documents that served before the arbitration tribunal in London, which included the statements of factual and expert witnesses, the Owners adopted the position that: “….all of the documents prepared for or arising in the arbitration are subject to an implied undertaking as to confidentiality which exists in all English arbitrations.”

Olsen J considered the English case of Ali Shipping Corp. v Shipyard Trogir [1998] 2 All ER 136 and noted that, as a matter of English law, amongst the exceptions to the broad rule of confidentiality of arbitration proceedings was a circumstance where a Court granted an order for disclosure of documents for the purpose of later Court action, or where public interest required such disclosure. He noted that the obligation to discover the requested documents in the High Court proceedings was regulated by South African law. As such, an order of the High Court in South Africa requiring disclosure of the relevant documents would not breach or undermine the arbitration proceedings in England.

Olsen J further referred to the Constitutional Court judgment in Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA (1) CC, where the following was stated: “The fact that documents contain information of a confidential nature does not per se in our law confer on them any privilege against disclosure.”

The learned judge mentioned the judgment in the Western Cape High Court in MV “Alina II”: Transnet Limited v MV “Alina II” 2013 (6) SA 556 (WCC) in which Goliath J held that: “Maintaining secrecy around the arbitration and other proceedings arising from the same incident undermines the search for truth in adjudicating the matter.”

He supported Goliath J’s reliance on the dicta of Lord Denning in Riddick v Thames Broad Mills Ltd [1977] 3 All ER 677 (CA), as follows: “The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e. in making full disclosure.”

Olsen J expressed the view that to hold that the existence of a confidentiality provision would constitute a bar to the enforcement of South African procedural law would amount to an arbitrary restriction upon the fair trial rights of litigating parties embodied in our law relating to discovery. In the premises, he held that the Owners were obliged to discover the documents called for by TNPA and could not rely upon confidentiality to refuse to do so.

On the issue of privilege, there was an additional debate around whether factual statements and expert statements presented to the arbitrators as evidence in chief of witnesses who testified in the arbitration were privileged. The usual position under South African law is that where such witness statements have been prepared for purposes of litigation, they are regarded as privileged.

Olsen J emphasised that as the statements in question had been presented as evidence in chief of the witnesses in the arbitration proceedings in London, they were not statements formulated for purposes of the litigation in South Africa. He therefore concluded that the statements would not be subject to privilege in the High Court proceedings and should be disclosed.

In the result, the Owners were ordered to furnish, inter alia, the following documents to TNPA:

• factual and expert witness statements presented to the arbitrators as evidence in chief;
• transcripts of the arbitration proceedings;
• written submissions made by the parties in the arbitration proceedings;
• awards made by the arbitration tribunal;
• documents relating to the application for leave to appeal; and
• certain correspondence.

Summary

In the context of maritime claims arising in South Africa, in particular those emanating from casualty events, it is often the position that local litigation proceedings in South Africa run in parallel with foreign dispute resolution proceedings, usually arbitration proceedings in London.

In future, litigating parties will have to be mindful of the position that documents that are served before an arbitration tribunal in London, specifically factual and expert statements that form part of a witness’s evidence in chief, will be discoverable in South African proceedings on the grounds that they remain discoverable by nature, notwithstanding that the arbitration proceedings are confidential.

Furthermore, this judgment confirms that merely because parties have concluded an agreement to the effect that, as between them, documents are to be regarded as confidential, this will not be a bar to a Court ordering the disclosure of such documents on the basis that they are not privileged.

For further information on this topic, kindly contact our Maritime Team.