Systems Applications Consultants (Pty) Ltd t/a Securinfo v Systems Applications Products AG and Others

The appellant, a South African software company, instituted action proceedings in 2008 against the first respondent, a German global software company (SAP), claiming damages exceeding €600 million for alleged unlawful interference with an exclusive software distribution agreement. In 2012, the Full Court ordered the appellant to furnish security for costs of R4 million in terms of s 13 of the Companies Act 61 of 1973. After exhausting appeals, the appellant furnished the security. In 2018, the appellant applied to the High Court for the release of the security, alleging a material change in legal and factual circumstances, including the repeal of the 1973 Companies Act and the joinder of a litigation funder. The High Court dismissed the application, and the appellant appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The application to release the R4 million security for costs was refused.

This case clarifies that while superior courts have inherent constitutional power to regulate their own process under s 173 of the Constitution, that power does not lightly permit the reconsideration of final interlocutory orders for security for costs. It confirms the continued operation of s 13 of the Companies Act 61 of 1973 in proceedings preserved by transitional provisions and underscores the high threshold for establishing a ‘material change in circumstances’ justifying the release of security.