SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
• in the absence of such agreement, the discretion of the arbitral tribunal. The IAA and AFSA International Rules also offer guidance in this regard, but are less prescriptive than domestic court rules. South Africa is a common law jurisdiction and, where a South African arbitrator is appointed, disclosure and the calling of witnesses at the hearing would generally be expected. Until recently, evidence collection in South African arbitrations often closely mirrored High Court proce - dure. However, there has been a marked shift away from this practice, with arbitrations increasingly con - ducted in accordance with internationally recognised processes and procedures. Discovery/Disclosure of Evidence The process of discovery (also referred to as disclo - sure) in arbitrations is usually less formal and more flexible compared to court litigation. Unlike court liti - gation, there is no automatic right to broad discovery. Parties in international arbitrations often agree to apply the International Bar Association Rules on the Taking of Evidence in International Arbitrations (the “IBA Rules”). In such cases, parties typically exchange Redfern Schedules setting out requests for relevant documents that are material to the outcome of the proceedings, subject to the applicable exclusions under the IBA Rules, before disclosure takes place. 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 mandatory requirement for the exchange of witness statements in international arbitration, though parties commonly agree to exchange them in written form, with such statements standing as the witness’s evidence-in-chief. Depending on the nature of the dispute and the agreement between the parties, witness statements may be submitted together with the pleadings in a memorial-style format or, alterna - tively, exchanged following the close of pleadings and the completion of discovery. No prescribed rules govern the content of witness statements. They typically provide a comprehensive account of the witness’s evidence. Following submis - sion, witnesses are made available for cross-examina - tion by the opposing party and may be re-examined by the party that called them. The tribunal also retains the ability to question witnesses directly. 8.2 Rules of Evidence Neither the IAA nor the AFSA International Rules pre - scribe specific rules of evidence, leaving the parties free to agree on evidentiary matters and conferring on the tribunal broad discretion over the admissibility, relevance, materiality and weight of any evidence pre - sented. Where a South African arbitrator is appointed, there is a tendency to apply domestic rules of evi - dence, as noted previously. The IBA Rules are frequently consulted as a guide, though they bind the parties only where expressly adopted. They adopt a more flexible and pragmatic approach than the formal evidentiary rules applicable in South African litigation. In domestic arbitration, pro - ceedings may more closely mirror court practice, but international arbitration affords considerably greater latitude. Strict evidentiary rules, such as the hearsay rule, will not apply unless the parties have expressly agreed to their application.
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