Tee Que Trading Services (Pty) Ltd v Oracle Corporation South Africa (Pty) Ltd and Another

Tee Que Trading Services (Pty) Ltd (TQ) concluded a licence agreement in 2004 with I-Flex Solutions Limited, granting it rights to sub-licence certain banking software to the South African Post Office (SAPO). A related sub-licence agreement was concluded between TQ and SAPO. Both agreements contained arbitration and governing law clauses, providing for arbitration under ICC rules, with the licence agreement stipulating London, England and English law, and the sub-licence stipulating South Africa and South African law. Oracle later acquired I-Flex and became its successor. Thereafter, TQ and Oracle concluded three further agreements governing TQ’s membership of the Oracle Partner Network, which contained South African court jurisdiction clauses. In 2018, TQ sued Oracle and SAPO in the High Court for damages arising from alleged breaches of the original licence agreements. Oracle applied for a stay of the action pending arbitration in terms of the original licence agreements. TQ contended that the later Oracle network agreements rendered the original arbitration and governing law clauses inoperative.

The appeal was dismissed with costs, including the costs of two counsel, and the stay of the High Court action pending referral of the dispute to arbitration was upheld.

The case affirms the strong pro-arbitration stance of South African courts, particularly in the context of international commercial arbitration under the International Arbitration Act. It clarifies that subsequent contracts do not lightly supersede arbitration clauses in earlier agreements, especially where non-variation clauses exist, and reinforces the mandatory nature of stays under Article 8 of the UNCITRAL Model Law.