SAP SE v Systems Applications Consultants (Pty) Ltd t/a Securinfo and Another

Systems Applications Consultants (Pty) Ltd (SAC) instituted action in the Gauteng Division of the High Court in 2008 against SAP SE for damages exceeding €600 million, alleging unlawful interference under German law with a Software Distribution Agreement allegedly concluded between SAC and SAP Systems Integration (SAPSI). SAP denied the existence of a valid agreement and liability. During the merits trial before Tsoka J, conducted virtually due to COVID‑19, a key SAC witness (Mr Linkies) was being cross‑examined by SAP’s counsel on whether SAC knew that the agreement required signature to be binding. During this cross‑examination, the trial judge interrupted counsel, prevented further development of a line of questioning aimed at challenging the witness’s credibility, became visibly irritated, announced he was ‘taking a break’, and left the virtual courtroom, directing counsel to continue in his absence. SAP thereafter applied for Tsoka J’s recusal on the basis of a reasonable apprehension of bias. The application was dismissed in the High Court, and SAP sought leave to appeal, which was refused, leading to the appeal before the Supreme Court of Appeal.

The appeal was upheld. The application for leave to appeal succeeded. The orders of the High Court dated 13 November 2020 and 7 December 2021 were set aside. The application for recusal was granted. The first and second respondents were ordered, jointly and severally, to pay the costs of the recusal application, the trial costs to date, and the costs of the appeal, including the costs of two counsel.

This judgment is a significant reaffirmation of the constitutional right to a fair trial and the high standards of judicial conduct required in South African courts. It clarifies that judicial irritation, interference with legitimate cross‑examination, and especially a judge’s withdrawal from proceedings can cumulatively found a reasonable apprehension of bias. The case underscores the centrality of even‑handedness and active judicial presence, particularly in complex and lengthy commercial trials.