UNCLE OSWALD’S Q&A FORUM – FEBRUARY 2026
DISPUTED DOCUMENTS
Dear Uncle Oswald,
Thank you for your response to my previous request. I have submitted my application for the appointment of an arbitrator in terms of clause 40 of the JBCC Series 2000 Edition 5.0 (July 2007) Principal Building Agreement to the Association of Arbitrators (Southern Africa) NPC. You were right, there were no issues. The Association appointed a competent Fellow as arbitrator and she very effectively took charge of the proceedings in terms of the Association’s 2021 Standard Procedure Rules for the Conduct of Arbitrations (the Rules). The parties have exchanged pleadings but, we have a new issue.
The issue is this. You may recall from our previous correspondence that the Contractor (the respondent in the arbitration) was useless. He rendered defective work relating to tiling and rising damp.
When I realised that this was the case very early in the project, I already contemplated proceedings to recover my damages from the Contractor. As you know, I have been around this block many times before. I therefore corresponded with a civil engineer, Mr Basil Eastcott (Mr Eastcott), and instructed him to investigate and provide me with a provisional report on the outcome of his investigation.
I did this for two reasons:
- First, to submit Mr Eastcott’s provisional report to my attorney to obtain legal advice; and
- Second, to use the evidence obtained by Mr Eastcott in my contemplated damages recovery proceedings against the Contractor.
Mr Eastcott’s report was only recently finalised and submitted to me, after my dispute with the Contractor was referred to arbitration. I intend to use the evidence contained in Mr Eastcott’s report, as well as the expert opinions expressed by him, in the pending arbitration.
The Contractor somehow found out about my correspondence with Mr Eastcott, my instructions to him, and Mr Eastcott’s provisional investigation report to me.
Now, the Contractor as respondent has applied to the Arbitrator in terms of article 29.3 of the Rules for a directive against me as claimant to produce for his inspection all correspondence between me, Mr Eastcott and my attorney, my instructions to Mr Eastcott, and Mr Eastcott’s provisional investigation report to me (jointly, the Disputed Documents).
The Arbitrator has called for my submissions on the Contractor’s aforesaid application.
I am not comfortable with this situation. Surely, the Disputed Documents are confidential between me, Mr Eastcott and my attorney. Also, I am concerned that the Contractor may use what I have disclosed to my attorney and Mr Eastcott in confidence, and Mr Eastcott’s report, to adjust his evidence to suit his own version. Mr Eastcott’s report to me was in any event only provisional. Much more has come to light in the meantime, and I have obtained reports from other experts to substantiate and supplement what is contained in Mr Eastcott’s provisional report.
What should be my submissions to the Arbitrator?
Best regards,
Fearless Frikkie
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Dear Frikkie,
In my view, the Disputed Documents are none of the Contractor’s business. They are indeed confidential as between you, Mr Eastcott, and your attorney.
In my opinion, you should rely on what the Supreme Court of Appeal in Ibex RSA Holdco Ltd and Another v Tiso Blackstar Group (Pty) Ltd and Others (Case no 862/2022) [2024] ZASCA 166 (4 December 2024) referred to as legal professional privilege, a well-known concept in discovery of documents in litigation.
The SCA in Ibex formulated a test to determine which material may be lawfully withheld from discovery.
The test formulated by the SCA in paragraph 73 of the Ibex judgment is this:
“[73] … A document created with the dominant purpose of its author, or of the person or authority under whose direction it was created, of using it to obtain legal advice, or in the conduct of existing or contemplated adversarial litigation, is privileged and shielded from inspection and production …”
(My emphasis.)
The rationale for the existence of legal professional privilege was stated as follows by the Australian High Court of Appeal in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685 (referred to in Ibex):
“… it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.“
On my understanding of the information provided by you:
- The correspondence between you and Mr Eastcott and your attorney, your instructions to Mr Eastcott and his provisional report to you were all created with the dominant purpose of obtaining legal advice from your attorney, and
- Mr Eastcott’s provisional report was created on your instructions for the dominant purpose:
- Of obtaining legal advice from your attorney; and
- Of being used in the conduct of what was initially contemplated adversarial damage recovery proceedings, which subsequently became the adversarial damage recovery proceedings currently pending before the Arbitrator.
As such, the Disputed Documents appear to me subject to legal professional privilege and therefore shielded from inspection and production.
The fact that the SCA’s judgment in Ibex relates and refers to litigation as opposed to arbitration is, in my view, of no consequence. The principle and the underlying rationale for legal professional privilege as expressed in Grant remain relevant and applicable to your arbitration context.
Therefore, I would propose that you submit to the Arbitrator that:
- You respectfully decline to produce the Disputed Documents;
- The Disputed Documents are subject to legal professional privilege because they were created with the dominant purpose to obtain legal advice and/or to be used in the conduct of contemplated and/or existing adversarial proceedings;
- The Disputed Documents are therefore privileged and shielded from inspection and production; and
- You place reliance on the aforesaid passages from the judgments in Ibex and Grant.
I wish you all the best and look forward to a report on the Arbitrator’ reaction to your submissions.
Best regards,
Uncle Oswald
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