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

The first respondent (SAC), a South African software company, sued the appellant (SAP), a German software company, for damages of €609,803,145, alleging that SAP unlawfully interfered with a Software Distribution Agreement (SDA) that SAC had concluded with SAP Systems Integration (SAPSI). SAP acquired a controlling share in SAPSI and promoted a competing security product (VIRSA) while discouraging sales of SAC's product (Securinfo). The trial before Tsoka J commenced in October 2020 on the Zoom platform during the COVID-19 pandemic and ran for 74 days. On 6 November 2020, during cross-examination of SAC's witness Mr Mario Linkies, the judge became irritated when SAP's counsel questioned whether Mr Linkies had lied in an email stating that Mr Tattersall was 'breathing down my neck' for a signed agreement. The judge interrupted counsel, abruptly left the virtual hearing without adjourning, stating 'When you've finished you'll let me know. I'm taking a break,' and appeared to direct that proceedings continue in his absence. SAP brought a recusal application which Tsoka J dismissed on 13 November 2020. The judge found in favor of SAC on the merits on 7 December 2021, finding SAP liable under sections 823 and 826 of the German Civil Code (BGB). The judge refused leave to appeal both decisions. SAP petitioned the Supreme Court of Appeal for leave to appeal.

• Whether the trial judge's conduct created a reasonable apprehension of bias justifying recusal
• Whether a judicial officer can direct that proceedings continue in his absence
• Whether the judge's intervention prevented legitimate cross-examination on credibility
• Whether the judge closed his mind to persuasion on a material issue
• The application of the test for reasonable apprehension of bias established in President of the RSA v SARFU

1. The application for leave to appeal succeeds. 2. The appeal is upheld. 3. The first and second respondents are directed, jointly and severally, to pay the costs of the application for leave to appeal and of the appeal, including the costs of two counsel. 4. The orders of the court a quo dated 13 November 2020 (dismissing the recusal application) and 7 December 2021 (finding SAP liable on the merits) are set aside and replaced with: (a) The application for recusal is granted and the first and second respondents are directed to pay the costs of the recusal application, including costs of two counsel; (b) The plaintiff and second defendant are directed to pay the costs of the trial, including costs reserved by Satchwell J on 25 May 2011, including costs of two counsel and qualifying costs of SAP's experts.

A reasonable apprehension of bias arises where a presiding judge: (1) prevents counsel from cross-examining a witness in response to a challenge from such witness regarding credibility; (2) irritatedly abstracts himself from the hearing without adjourning; and (3) directs that the hearing continue in his absence. Such conduct demonstrates that the judge has closed his mind to evidence and submissions of counsel. The question under the SARFU test is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication – a mind open to persuasion by evidence and submissions of counsel. Where cumulative factors demonstrate judicial conduct inconsistent with impartiality, including preventing legitimate cross-examination on material issues, abandoning the proceedings without proper adjournment, and directing proceedings to continue in the judge's absence, the test for recusal is satisfied. A judicial officer who sits in a case where there exists a reasonable apprehension of bias acts inconsistently with section 34 of the Constitution and in breach of section 165(2), rendering the further proceedings a nullity. Proceedings cannot validly continue in the absence of the presiding judge as there is no properly constituted court.

The Court made several important observations: (1) Presiding over a lengthy and complex matter is a difficult task and the burden on a presiding judge is great, but impatience must be avoided and strictly controlled as it can impede perception, blunt judgment and create an impression of prejudice; (2) While judicial officers can form provisional views including on credibility, it remains fundamental not to close one's mind to changing those impressions until the last word has been spoken; (3) Language is important and unfortunate language can raise the spectre of preconceived notions affecting judgment; (4) A cornerstone of any legal system is impartial adjudication, requiring not only that trials be conducted open-mindedly, impartially and fairly, but that such conduct be manifest to all concerned; (5) Judicial scrutiny of counsel's performance must be highly deferential as advocacy is an art requiring deference to counsel's informed strategic decisions based on professional judgment; (6) Judicial intervention should be infrequent during cross-examination as it gives witnesses time to think, diverts counsel from intended lines of inquiry, and weakens the effectiveness of the unbroken sequence of question and answer that is the gist of cross-examination; (7) A judicial officer should not be unduly sensitive or regard recusal applications as personal affronts; (8) In cases of doubt, it is ordinarily prudent for a judicial officer to recuse to avoid inconvenience if an appeal court takes a different view; (9) The presumption of judicial impartiality can be displaced by cogent evidence in instances where a judicial officer cannot demonstrate impartiality or there exists apprehension of bias.

This case is significant in South African jurisprudence for several reasons: (1) It reinforces the fundamental principle that not only actual bias but also the appearance of bias disqualifies a judicial officer, and continuing to preside after recusal should have occurred renders further proceedings a nullity; (2) It provides important guidance on the application of the SARFU test for reasonable apprehension of bias in the context of judicial conduct during trial proceedings; (3) It emphasizes the critical importance of judicial impartiality, patience and open-mindedness, particularly in lengthy and complex trials; (4) It clarifies that a single incident can constitute grounds for recusal if sufficiently serious and material to the case; (5) It underscores the importance of allowing counsel to conduct cross-examination without undue interference, particularly on issues of credibility material to the case; (6) It confirms that proceedings cannot validly continue in the absence of the presiding judge; (7) It demonstrates that ex post facto explanations for judicial conduct that were not disclosed at the appropriate time are irrelevant to the reasonable apprehension test; (8) It reaffirms that the fairness of a trial is threatened when a court does not apply the law and assess facts properly and impartially. The case serves as an important reminder of the high standards of judicial conduct required to maintain public confidence in the administration of justice.