Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 169

NUMÉRO SPÉCIAL AFRIQUE
in order to provide guidance to parties involved in arbitrations in this jurisdiction
going forward. Such case law should take into account:
(a) South Africa's common law origins, especially its reliance on English law in
the initial development of its arbitration framework. Courts should respect party
autonomy and the fact that implied confidentiality of commercial arbitrations
has probably already been incorporated into South Africa's common law;
(b) The unique circumstances of South Africa after years of widespread
corruption and the need for the public to observe the rendering of justice
when state organs are involved, as well as the international trend to prefer
transparency over confidentiality in some cases; and
(c) The fact that South Africa's public interest, which should always be a key
factor in deciding whether confidentiality applies in arbitrations, is different
and should not blindly be compared to its equivalent in other countries.
71. In view of the historical reliance on the English position, we suggest that
arbitrations in South Africa may have some confidentiality implied despite the
courts' reluctance to acknowledge this in recent times. The recent legislation for
international arbitrations could also support this suggestion, and should reasonably
be extrapolated to domestic arbitrations. This would suggest that:
(a) Commercial arbitrations involving private (i.e., non-public/non-state-owned)
parties should attract at least some measure of implied privacy and confidentiality.
Measures should be imposed to protect and advance these considerations (to
which end, see further below);
(b) Conversely, arbitrations involving public/state-owned persons or entities
should in principle be transparent and open to public scrutiny; and
(c) The South African public interest should always guide the decision on
whether to keep arbitration proceedings, materials exchanged and awards
issued therein, confidential or not. This should override any confidentiality/nondisclosure
agreements to the contrary.
Practice directives can be issued to address immediate
confidentiality concerns
72. In the short term, South African courts can adopt practice directives specifically
applicable to the privacy and confidentiality of proceedings brought pursuant to the
Domestic Arbitration Act or International Arbitration Act in circumstances where
the underlying arbitration agreement provides for confidentiality and/or if the courts
ultimately determine that confidentiality can be implied in arbitrations. In our view,
these can be adopted on the following basis:
(a) Fundamentally, and as already prescribed by the South Gauteng High Court
for tax-related matters, all proceedings that are brought under the auspices of the
Domestic Arbitration Act or International Arbitration Act that do not involve a
state organ or public body as a party to the underlying arbitration agreement
should be brought and heard in camera. To this end, drawing inspiration from
the International Arbitration Act of Singapore and the Civil Procedure Rules in
England and Wales:
Les Cahiers de l'Arbitrage 2023‑2
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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