SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
However, the extent and scope of disclosure can vary significantly depending on the agreement between the parties or the tribunal’s orders. Privilege South African law recognises the concept of legal privilege, which protects certain communications from being disclosed. This takes the form of: • legal advice privilege – communications exchanged between a legal adviser (acting in their profes - sional capacity) and their client, for the purposes of obtaining legal advice; and • litigation privilege – communications exchanged and documents prepared in contemplation of litiga - tion. These rules of privilege apply equally in international arbitration proceedings. Witness Statements There is no set requirement that witness statements be exchanged in international arbitrations; however, parties often agree to exchange witness statements in written form, which stand as the evidence-in-chief of the witness. Depending on the type of matter and the agreement between the parties, witness statements are some - times submitted together with the pleadings (memo - rial-style pleadings). However, parties may also agree to exchange witness statements after pleadings have been exchanged and discovery has taken place. There are no set rules as to the content of those state - ments and the parties are free to agree on this as they see fit. Witness statements usually provide a com - prehensive account of the witness’ evidence, and the witnesses are then subjected to cross-examination by the opposing party, followed by re-examination by the party who called them. The tribunal may also question the witnesses. 8.2 Rules of Evidence The IAA and the AFSA International Rules do not prescribe any rules of evidence, allowing the parties the ability to agree on this, and granting the tribunal
considerable discretion to determine the admissibility, relevance, materiality and weight of evidence. As previously mentioned, if a South African arbitrator is appointed, they may be more inclined to apply the South African rules of evidence. The IBA Rules are also often used as a guide, although these are not binding unless agreed upon by the par - ties. The IBA Rules adopt a more flexible and prag - matic approach than the formal rules of evidence found in South African domestic litigation. While South African domestic arbitration may adhere to more structured rules, similar to those found in court proceedings, international arbitration enjoys greater flexibility. The strict rules of evidence applica - ble in the South African courts, such as the hearsay rule, may not apply unless the parties agree to their application. 8.3 Powers of Compulsion Arbitral tribunals seated in South Africa do not pos - sess the same powers as courts to compel the pro - duction of documents or the attendance of witnesses. However, under Article 27 of Schedule 1 to the IAA, tribunals may request the assistance of South African courts in these matters. Parties Involved in the Arbitration For parties involved in the arbitration, compliance with the tribunal’s orders regarding evidence and witness attendance is expected, as failure to do so may result in adverse inferences being drawn. Non-Parties to the Arbitration The courts may issue subpoenas or orders compelling non-parties to produce documents or appear as wit - nesses, if such assistance is requested. South African courts are generally supportive of arbitration and are likely to enforce such requests, provided they are rea - sonable and necessary for the proceedings.
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