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LEGAL PRIVILEGE VS CONFIDENTIALITY

Andrew Clark, It transpired that the
Managing Partner, charterers were successful
Cox Yeats in defending the claim for
breach of a safe port warranty
by the Owners in the London
he High
Court arbitration. Following an appeal
Tof South to the Appeal Court in England,
Africa, exercising that Court noted that the
its admiralty arbitration tribunal had found
jurisdiction, that:
has recently “… the master had been
delivered a negligent in his handling of
judgment the vessel, and it was this that
ordering the caused the grounding of the
plaintiff in an action to discover vessel; this negligence broke the
certain documents which had chain of causation arising from
been disclosed in London any unsafety of the port.”
arbitration proceedings, In response to a request
to which the plaintiff was by TNPA in the High Court
a party, but in respect of proceedings for the Owners to
which the plaintiff claimed a provide various documents that
right to confidentiality and served before the arbitration
an entitlement to withhold tribunal in London, which
disclosure.
included the statements of
This judgment clarifies the factual and expert witnesses,
distinction under South African the Owners adopted the
law between the principles position that: “Alina II” 2013 (6) SA 556 whether factual statements and Summary
of confidentiality, on the one “… all of the documents (WCC) in which Goliath J held expert statements presented In the context of maritime
hand, and privilege, on the prepared for or arising in the that: to the arbitrators as evidence claims arising in South Africa,
other. It is a salutary warning arbitration are subject to an “Maintaining secrecy around in chief of witnesses who in particular those emanating
to litigants that a claim to implied undertaking as to the arbitration and other testified in the arbitration, were from casualty events, it is often
confidentiality will not be confidentiality which exists in all proceedings arising from the privileged. The usual position the position that local litigation
upheld in circumstances where English arbitrations.” same incident undermines the under South African law is that proceedings in South Africa
the documents in question are search for truth in adjudicating where such witness statements run in parallel with foreign
not, by their nature, privileged Olsen J considered the English the matter.” have been prepared for purposes dispute resolution proceedings,
and are relevant to issues in the case of Ali Shipping Corp. v He supported Goliath J’s of litigation, they are regarded usually arbitration proceedings
litigation. Shipyard Trogir [1998] 2 All as privileged. in London. In future, litigating
ER 136 and noted that, as a reliance on the dicta of Lord Olsen J emphasised that as the parties will have to be mindful
MV “SMART” matter of English law, amongst Denning in Riddick v Thames statements in question had been of the position that documents
In December 2025, Olsen J, the exceptions to the broad Broad Mills Ltd [1977] 3 All ER presented as evidence in chief of that serve before an arbitration
677 (CA), as follows:
sitting in the Durban division rule of confidentiality of the witnesses in the arbitration tribunal in London, specifically
of the High Court, heard arbitration proceedings was a “The reason for compelling proceedings in London, they factual and expert statements
an application by Transnet circumstance where a Court discovery of documents in this were not statements formulated that form part of a witness’s
National Ports Authority (a granted an order for disclosure way lies in the public interest for purposes of the litigation evidence in chief, will be
division of Transnet (SOC) Ltd) of documents for the purpose in discovering the truth so that in South Africa. He therefore discoverable in South African
(TNPA) for an order directing of later Court action, or where justice may be done between the concluded that the statements proceedings on the grounds
the owners and underwriters of public interest required such parties. That public interest is would not be subject to privilege that they remain discoverable
the MV “Smart” (Owners) to disclosure. He noted that the to be put into the scales against in the High Court proceedings by nature, notwithstanding
produce certain documents and obligation to discover the the public interest in preserving and should be disclosed. that the arbitration proceedings
correspondence for inspection. requested documents in the privacy and protecting In the result, the Owners were are confidential.
High Court proceedings was confidential information. The
This application was heard in regulated by South African law. balance comes down in the ordered to furnish inter alia the Furthermore, this judgment
the context of an action that the As such, an order of the High ordinary way in favour of the following documents to TNPA: confirms that merely because
Owners have brought against Court in South Africa requiring public interest of discovering ■ factual and expert witness parties have concluded an
TNPA claiming damages of disclosure of the relevant the truth, i.e. in making full statements presented to the agreement to the effect that,
approximately USD 110 million documents would not breach disclosure.” arbitrators as evidence in as between them, documents
following the grounding of the or undermine the arbitration chief are to be regarded as
MV “Smart” whilst leaving proceedings in England. Olsen J expressed the view ■ transcripts of the arbitration confidential, this will not be
the port of Richards Bay on 19 that to hold that the existence proceedings a bar to a Court ordering the
August 2013. The trial is set Olsen J further referred to the of a confidentiality provision disclosure of such documents
down for hearing in July 2026. Constitutional Court judgment would constitute a bar to the ■ written submissions made on the basis that they are not
in Helen Suzman Foundation enforcement of South African by the parties in the privileged.
In addition to the action v Judicial Service Commission procedural law would amount arbitration proceedings
proceedings in the High Court, 2018 (4) SA (1) CC where the to an arbitrary restriction ■ awards made by the
arbitration proceedings between following was stated: upon the fair trial rights of arbitration tribunal For further information on this topic,
the charterers of the vessel litigating parties embodied in kindly contact our Maritime Team.
and the Owners took place “The fact that documents our law relating to discovery. ■ documents relating to the
in London. In the arbitration contain information of a In the premises, he held that application for leave to appeal E: aclark@coxyeats.co.za
proceedings, the Owners confidential nature does not per the Owners were obliged to ■ certain correspondence W: www.coxyeats.co.za
contended that under the se in our law confer on them any discover the documents called
charterparty the charterers had privilege against disclosure.” for by TNPA and could not rely
breached a “safe port warranty” The learned judge mentioned upon confidentiality to refuse
because the vessel had been sent the judgment in the Western to do so.
to Richards Bay to load a cargo Cape High Court in MV “Alina On the issue of privilege, there
of coal. II”: Transnet Limited v MV was an additional debate around

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