THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 376/2022
In the matter between:

SAP SE APPELLANT

and

SYSTEMS APPLICATIONS CONSULTANTS
(PTY) LTD t/a SECURINFO FIRST RESPONDENT
UNGANI INVESTMENTS (PTY) LTD SECOND RESPONDENT

Neutral citation: SAP SE v Systems Applications Consultants (Pty) Ltd t/a
Securinfo and Another (Case no 376/2022) [2024] ZASCA 26 (20
March 2024)
Coram: PONNAN, GORVEN and MEYER JJA and KOEN and
BAARTMAN AJJA
Heard: 20 & 21 February 2024
Delivered: 20 March 2024
Summary: Application for recusal – reasonable apprehension of bias – trial judge –
misconceiving the issue in the evidence – preventing counsel from properly developing
a line of cross-examination – irritatedly abstracting himself from the hearing and
directing that the cross-examination continue in his absence – test satisfied.

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___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Tsoka J, sitting
as court of first instance):
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, such costs to include
the costs of two counsel.
4 The orders of the court a quo dated 13 November 2020 and 7 December 2021
under case number 20378/2008 are set aside and replaced with the following:
‘a. The application for recusal is granted and the first and second respondents in
the recusal application are directed, jointly an d severally, to pay the costs of the
application, including the costs of two counsel;
b. The plaintiff and the second defendant are directed, jointly and severally, to pay
the costs of the trial, including the costs reserved by Satchwell J on 25 May 2011, such
costs to include the costs of two counsel and the qualifying costs of the first
defendant’s experts, Professors Wagner and Wainer and Messrs Burke and O’Neill.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Ponnan JA (Gorven and Meyer JJA and Koen and Baartman AJJA concurring):
[1] In 2008, the first respondent, Systems Applications Consultants (Pty) Limited,
trading as Securinfo (SAC), a local software development company, caused summons
to be issued out of the Gauteng Division of the High Court, Johannesburg (the high
court) for damages in the amount of €609 803 145 against the appellant, Syste ms
Applications Products AG (since renamed SAP SE) (SAP), a German global software
company involved in the development and sale of software systems application

company involved in the development and sale of software systems application
products. SAC’s assertion, denied in general terms by SAP, is that it had concluded a
Software Distribution Agreement (the SDA) with a German IT consulting company,

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SAP Systems Integration (SAPSI), in respect of a software security product
(Securinfo) that had been developed by it. The broad thrust of SAC’s case is that,
subsequent thereto, SAP acquired a controlling share in SAPSI and an interest in a
competing security product known as VIRSA and thereafter unlawfully interfered in the
SDA.

[2] In the particulars o f claim (as amended) annexed to the summons, it was
alleged on behalf of SAC that:
‘12. In terms of the SDA:
12.1. SAPSI was obligated to use all reasonable efforts to promote and extend the market
for the Plaintiff’s product to all potential licensees and to work diligently to obtain orders for the
Plaintiff’s product;
12.2. SAPSI undertook that it would not during the currency of the SDA market or distribute,
either directly or through intermediaries, any products directly or indirectly competing with the
Plaintiff’s product;
12.3. The SDA would endure for a period of 3 years.
12A The Plaintiff had an established and operating business in exploiting its Securinfo
products . . . including in particular with SAPSI . . . (“the Plaintiff’s business”).
13. From August 2004 alternatively from after August 2004 but by March 2005 at the latest,
the Defendant had knowledge of the conclusion of the SDA between the Plaintiff and SAPSI
and of the Plaintiff’s business.
14. The Defendant was at all material times under a legal duty:
14.1. not to intentionally and unlawfully interfere with the contractual relationship between
SAPSI and the Plaintiff with the intention of causing the Plaintiff a loss in terms of section 826
of the German Civil Code (“the BGB”); and
14.2. not to intentionally alternatively negligently and unlawfully injure the Plaintiff’s business
in terms of section 823(1) of the BGB.
15. Between February 2005 and the expiry date of the SDA and in breach of the aforesaid
legal duties, the Defendant acting directly and/or through its wholly owned subsidiaries:

legal duties, the Defendant acting directly and/or through its wholly owned subsidiaries:
15.1. ceased its support and promotion of the SAPSI -Securinfo partnership based on the
SDA (or at all) and the sale of the Plaintiff’s product to SAP customers globally;

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15.2. promoted the marketing and sale of the IT security product and/or products produced
by Virsa Systems Inc, a company then incorporated in accordance with the laws of the United
States of America (such product and/or products hereafter referred to as “VIRSA”) by all its
subsidiaries, including SAPSI, and discouraged the sale of the Plaintiff’s product and other
similar or competing products.
. . .
16. But for the actions of the Defendant, SAPSI would not have breached the SDA and
would have continued implementing the business relationship with the Plaintiff as set out . . .
above.
17. The Defendant foresaw and intended that its said conduct in interfering with and/or
causing SAPSI to breach the SDA would cause a loss to the Plaintiff, alternatively, the
Defendant with reckless regard for the consequence of causing Plaintiff a loss, nonetheless
interfered with and/or caused SAPSI to breach the SDA as aforesaid and the Defendant is
accordingly liable to compensate the Plaintiff for such loss in terms of section 826 of the BGB
above alternatively the Defendant’s conduct described in paragraph 15 above constituted the
unlawful and intentional alternatively negligent injuring of the Plaintiff’s business and the
Defendant is accordingly liable to compensate the Plaintiff for the loss sust ained in
consequence of such injury in terms of section 823(1) of the BGB above.
18. By reason of the aforesaid breaches of its legal duties by the Defendant, the Plaintiff
suffered a direct loss of sales of its security software, which, but for the intentional and unlawful
conduct of the Defendant, it would otherwise have made.’

[3] SAP filed several special pleas and a plea over, inter alia, putting in issue the
conclusion of the alleged SDA. It also denied having unlawfully interfered with the SDA
and disputed liability for the damages claimed. The issues of the merits and quantum
having been separated, the matter proceeded to trial in respect of the former before

having been separated, the matter proceeded to trial in respect of the former before
Tsoka J. The trial commenced in October 2020 and ran in total for some 74 days,
generating a record in excess of 60 volumes comprising some 12 000 pages. In the
course of the trial, SAC ran out of funds and had to turn to the second respondent,
Ungani Investments (Pty) Limited ( Ungani), for funding to enable it to continue to
prosecute the claims. Ungani came to be joined by consent as th e second defendant
to the proceedings in its admitted capacity as the funder of SAC’s litigation against
SAP to meet any order for costs that may issue against SAC.

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[4] The hearing was conducted virtually on the Zoom platform in accordance with
the then prevailing practice in the high court as a result of the COVID 19 pandemic.
Throughout the proceedings, all of the participants were connected to the same virtual
meeting, which was designed, as closely as possible, to resemble proceedings in open
court. The trial was recorded (both audio and video) and transcribed on a daily basis
by RealTime Transcriptions. It was envisaged that all the usual formalities and
decorum of the court would be observed, such as the judge and counsel were robed;
the witnesses testified under oath and, whilst the court was in session, the proceedings
were at all times to be presid ed over by the presiding judge, who could be observed
on a video link and heard on an audio link.

[5] On Friday, 6 November 2020, when the trial was into its 20th day and whilst one
of SAC’s witnesses, Mr Mario Linkies, was being cross-examined by counsel for SAP,
the following occurred:
‘MR BADENHORST SC: So is your evidence, and let me just get clarity on this once and for
all, you are saying at the begi nning Mr Tattersall asked for the signed agreement, and that
means July/August 2004, correct?
MR LINKIES: This could be, yes, yes.
MR BADENHORST SC: And then he asked you once, at a later time, but only once he did not
ask frequently, is that what you said?
MR LINKIES: He may have asked me again but I am not sure (inaudible).
. . .
MR LINKIES: Yes, he may have asked me, I do not recall it, but he may have asked me once
or twice or thrice, I am not sure, but it was not a big issue, but he certainly talked ab out the
contract and the final signature, ja, especially at the beginning; later on, I do not think we talked
about that, but at the beginning I am sure we talked about this, because for me it was also an
issue to get this done.
MR BADENHORST SC: . . . We have found several indicators in the months from August to

MR BADENHORST SC: . . . We have found several indicators in the months from August to
February 2005, in every month there is an indication of some issue being raised concerning
the signed agreement, it is either by Mr Tattersall to you, or yourself raising the issue with your
colleagues, and I will put to you that it is very likely that all these instances are related back to
your and Mr Tattersall discussing this problem of not having the signed contract . . .
. . . Then on the 21 September 2004 you wrote that email to your colleagues about “Tattersall
is ‘breathing down my neck’”, remember that?
MR LINKIES: Ja, ja, I saw this email.

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MR BADENHORST SC: And I put to you that if one reads all the emails exchanged on that
day about that particular subject, it is obvious that it was Mr Ta ttersall who was indeed
“breathing down your neck”. Do you agree with me?
MR LINKIES: No, he was not; again, I expressed and I used certain German wording to push
my own organisation, and I do this all the time, but we informed Mr Tattersall on the fact th at
he should not be worried. This we told him all the time, and we informed him that we are
working based on the SDA, but I was not a lawyer and I was not in charge of making sure, or
have a good understanding if the contract had been legally bound or not; for me it was clear
that once Mr Ahrens told us it is done and we got approval from him, that we can work based
on the SDA, but what you are asking maybe about my understand of Mr Tattersall’s
understanding, and I cannot comment on that, I can only tell you what I have told Mr Tattersall,
and maybe if Mr Tattersall was asking me often, but he did not ask me often, it was not an
issue for him, but it was an issue for me to make sure I get internally all the signatures, and
that is why I was following up eve ry few months, every month even, this was just my way of
doing it –
MR BADENHORST SC: Yes, Mr Linkies, you have said this before, I just do not know why
you keep on going on about an issue that I did not ask you about. My question to you, what I
am putting to you is simply that this email . . . that is on the screen, of 21 September 2004
speaks for itself. The email you wrote is in its terms saying, “I regret to have to follow up again,
but urgently request the approval of the contract with Securinfo, as w e have had the details
scrutinised by various colleagues”, no doubt you are referring to the internal approval process,
“There should be no further problems. Peter Tattersall is ‘breathing down my neck’, and I can
quite understand that Securinfo wants a de finite statement on whether the partnership with

quite understand that Securinfo wants a de finite statement on whether the partnership with
SAPSI is now put on an official basis or whether we do not have legal certainty. That of course
has implications for our collaboration.”
. . . And then the crucial statement, I am therefore at present refrai ning from a further
conversation with Peter until the matter is clarified on our side . . . So, Mr Linkies, you have a
very clear choice here before His Lordship. You either have to own up and say, yes, of course
what I wrote there is correctly recording the facts. Mr Tattersall was breathing down my neck.
He was asking for the contract. As I said numerous times later on the proceedings I showed
you how you told Mr Hoffman that Mr Tattersall was asking at regular intervals for the contract.
Isn’t that what you said in December 2006?
MR LINKIES: I don’t know what I said there, but certainly this text here is part of my following
up that the internal list has been done. This is what I’m also – what I always do. This was part
of my job. And my understanding at that time and maybe even now is that a contract has to
be signed. This is my understanding

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MR BADENHORST SC: Mr Linkies, I’m sorry. You can go round and round my question. I can
assure you that –
. . .
. . . Now you’ve seen the email. The question is, is your email correct or not?
MR LINKIES: My email at that point is very, very clear. I wanted to push my own organisation
to make sure we have the in – we are doing our internal tasks but I used – of course I used
some people. In that case I used Peter Tattersall of Securinfo to push my own people and this
is something I’m doing also with my kids you know. I do this – those things. Maybe it’s right,
maybe wrong but this is what I do.
MR BADENHORST SC: So is what you’re saying is you were lying to your colleagues?
MR LINKIES: Why are you saying I am lying? I don’t – I didn’t lie.
. . .
MR BADENHORST SC: But then you must agree if you’re not – you will only not be lying if in
fact Mr Tattersall was sitting on your neck because . . . You’re saying to your colleagues,
Manfred and Frank, that is Manfred Wittmer and Frank Off, you’re saying Peter Tattersall is
breathing down my neck. Now did – was he breathing down your neck or not? If you’re saying
to His Lordship he was not breathing down my neck then what you wrote there is a lie.
MR LINKIES: I pushed my organisation –
COURT: Mr Badenhorst may we proceed please and then you can argue that point. The
question has been answered repeatedly.
MR BADENHORST SC: M’Lord, I am putting to the witness that he was lying in his email and
he has to –
COURT: He said the answer is no. I was pushing my own organisation.
MR BADENHORST SC: But, M’Lord, with great respect if he’s pushing his own organisation
by using –
COURT: Yes.
MR BADENHORST SC: A false statement, I’m enti tled to force him to answer it. It’s not a
matter of argument. It’s a matter –
COURT: When you’ve finished you’ll let me know. I’m taking a break.
MR BADENHORST SC: That is now interesting. It is now 11:11.
[COURT ADJOURNS COURT RESUMES]
[11:14] COURT: I’m back.

[COURT ADJOURNS COURT RESUMES]
[11:14] COURT: I’m back.
MR BADENHORST SC: M’Lord, I just want to place on record that Your Lordship walked out
of court now, at about 11 minutes past 11, when Your Lordship simply announced that you
are simply taking a break and that we must let you know, when I have finished.
COURT: You keep repeating one question after the other, and you want a different answer.

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MR BADENHORST SC: M’Lord, with great respect, I would like to record that Your Lordship
was asking me about the questions that I had been putti ng. I responded to Your Lordship to
say why I was putting the question and why it was important for me to get an answer from the
witness and that I have and am obliged in terms of high authority, namely the SARFU case to
put to the witness when I will ultimately be arguing that he is a lying witness and that –
COURT: That’s the point, I say, I said that’s a point. May I do that.
MR BADENHORST SC: Yes, but I have a more serious issue, M’Lord, that I have to raise
because it concerns the conduct of the bench . Your Lordship was so upset with me that is
consistently with Your Lordship’s constant attitude towards my side to take a clearly one sided
approach to this matter. Your Lordship stormed out of Court and you were so upset with me
that you said I must call you back when I have finished and I wish to put, place that on record
because it’s a deeply concerning attitude from the bench.
COURT: Please do so.
MR BADENHORST SC: I have done so, M’Lord and the record will read for itself.
COURT: Yes.
MR BADENHORST SC: I really hope, M’Lord, that we are engaged here in a very complex
and long matter and I am urging Your Lordship to take a balanced view and to treat both sides
even handed. Your Lordship –
COURT: (Inaudible).
MR BADENHORST SC: M’Lord, Your Lordship has taken a very clear sympathetic approach
to Mr Tattersall. You’d constantly, constantly taken a very hostile attitude to my questioning
and to my approach to the matter and I cannot understand it because I’ve noted M’Lord for a
very long –
COURT: That is new to me.
. . .
MR BADENHORST SC: M’Lord, I have noted my position and I would ask Your Lordship to
take the tea adjournment.
COURT: Yes, we will take the tea adjournment. He said I’ve constantly been hostile.
MR BADENHORST SC: M’Lord, I do not wish to say anything more, the record will speak for

MR BADENHORST SC: M’Lord, I do not wish to say anything more, the record will speak for
itself and I am simply urging Your Lordship to please adopt an even handed approach to the
parties in this matter. I do respectfully request Your Lordship to patiently await the case that
we will present for the defendant, the first defendant, and to give the first defendant confidence
that it will have a hearing on equal terms before this Court and that it will receive the attention
that it deserves without bias, fear or favour.
COURT: Yes, (inaudible) but I’ve sai d to you, you said, I took a – constantly been hostile to
your client’s case.
MR BADENHORST SC: That is what I have said, M’Lord.

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COURT: Yes. Is that correct?
MR BADENHORST SC: M’Lord, I’m afraid that is the impression that I have.
COURT: Sorry, no, no I asked a different question. I’m not asking you about your impression.
Is that correct that I was hostile?
MR BADENHORST SC: M’Lord, I have said what I have wanted to say and I’m not going to
be forced by Your Lordship to say anything else. I have said what I wanted to say and that is
where I end.
COURT: And which is (inaudible).
MR BADENHORST SC: Which is what I said, M’Lord. Must I repeat it?
COURT: Yes.
MR BADENHORST SC: I have the impression that Your Lordship has taken a very
sympathetic view towards the plaintiff’s case and a very hostile approach towards the
defendant’s case. Your Lordship at one stage I may remind you made the laconic remark that,
who are these defendants, do they believe in the supernatural and that was at a stage as early
as the opening address. That kind of remark M’Lord does not go unnoticed, it has a deeply
disturbing effect on a –
COURT: – it was during argument where the defendant (inaudible).
MR BADENHORST SC: Why, with the greatest respect, does the Court say those things to
belittle a very serious defence that the defendant is pursuing in a very large and complex case.
COURT: So, do you want me to recuse myself, is that the indication?
MR BADENHORST SC: I have no instructions M’Lord, as far as that is concerned.
COURT: You must take instructions during the tea break?
MR BADENHORST SC: I shall, M’Lord.
COURT: Thank you.
[COURT ADJOURNS COURT RESUMES]
[11:33] MR BADENHORST SC: My Lord –
. . .
MR BADENHORST SC: My Lord, may I report back. I’ve h ad an opportunity to only have a
very brief discussion with my instructing attorney, and I will . . . need to ask Your Lordship to
allow me further time to take instructions on Your Lordship’s question to me and I would
propose M’Lord that we take the adjo urnment for the – long adjournment now, until Monday

propose M’Lord that we take the adjo urnment for the – long adjournment now, until Monday
morning, and then I will have an opportunity. My instructing client is in Germany. We obviously
have to explain the situation fully to the people who have to make the decisions, and I will
need time for that, M’Lord. So I ask that Your Lordship adjourns the proceedings now until
Monday morning at 09:30?’

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[6] On 9 November 2020, SAP brought an application, which was opposed by
SAC, for the recusal of Tsoka J. In support of the application, it was stated by Mr
Alexander Leyh, SAP’s senior legal counsel:
’27. Upon reading the transcript, listening to and watching the relevant part of the audio
visual recording of the proceedings on 6 November 2020 and receiving confirmation from Dr
Levenstein that it fairly reflects what occurred and on the basis of Dr Levenstein’s affidavit
attached, I state the following:
27.1. SAP has not, prior to the events recounted in Dr Levenstein’s affidavit, ever
experienced a judicial officer conducting himself or herself in the manner revealed from the
transcript and Dr Levenstein’s observations.
27.2. Hitherto, judicial officers always permitted SAP to present its case – as plaintiff or as
defendant – while (in addition and especially) always remaining in attendance and presiding
over the proceedings at all times. This is not to say that there have not been frank (or indeed
vigorous) exchanges between SAP’s lawyers and the Court on occasion; I say only that the
conduct displayed by the presiding Judge in the present instance, namely a unilateral and
intemperate exit from the trial proceedings and a refusal to listen to what counsel for S AP
wanted to ask of SAC’s principal witnesses, and suggesting that the proceedings should
continue in the absence of the Judge, has never occurred.
. . .
27.5. SAP considers the Court’s conduct on 6 November 2020 to be alarming and
intolerable.
27.6. SAP apprehends on the basis of the events described herein and in the affidavit of Dr
Levenstein, that the Presiding Judge, for whatever reasons, will not be impartial.
27.7. SAP has lost confidence in the ability of the Presiding Judge to fairly and impar tially
arrive at the balanced and reasoned decisions required for the numerous important questions
of fact, German law and credibility arising in this matter.

of fact, German law and credibility arising in this matter.
27.8. SAP reasonably perceives, on the basis of the Court’s conduct on 6 November 2020,
that it has closed its mind to persuasion to a case contrary to that put forward by the SAC’s
witness, Mr Mario Linkies, on a key issue in the trial, namely whether the plaintiff had
knowledge at all times that the agreement relied on by the plaintiff for its claim would only be
valid when it was signed for SAPSI (which never happened). This is a fundamental point in
the case; SAC’s case pivots on it.
27.9. The Court’s apparent closure of its mind to persuasion contrary to SAC’s case on that
key issue in the trial, causes SAP reasonably to perceive that the Court’s mind is (or most
likely will be at the appropriate time) similarly closed to persuasion against SAC’s case on
other issues in the trial.

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27.10. The Court’s perceived bias is manifested by the following con duct of the Presiding
Judge on 6 November 2020:
27.10.1. The Presiding Judge’s refusal to permit counsel for SAP to put SAP’s case on
a key issue (and conclusion, based upon that case) to the witness;
27.10.2. And thereafter, when counsel for SAP sought to resist and then to persist, the
Presiding Judge instructing counsel for SAP to let the Court know “when he (had) finished”,
declaring “I’m taking a break” and then ‘storming out of Court’ (by abruptly and in a visibly
angry state abandoning his seat in front of the Zoom monitor and walking away so that he was
no longer visible to those attending the proceedings and only returning after several minutes).
27.11. The Court’s conduct is clearly visible on the external camera which was set up to record
and project to all attendees the movements of the Presiding Judge.
27.12. SAP, Mr Hamel and I agree with Dr Levenstein that it is clear that the Presiding Judge
became visibly upset and acted in rage when counsel for SAP explained to him that it was his
(counsel’s) duty to put to the witness that he had lied in the email to his colleagues dated 21
September 2004 at 1:25:59 PM (referred to as SI_0729 in the trial bundle);
27.12.1. By his conduct and words – which were clearly intended and also appeared to
be unambiguously conveying a refusal to listen to (let alone consider) SAP’s case being put
to the witness Mr Linkies – the Presiding Judge then in fact refused to listen to or observe the
proceedings and evidence on a central issue in the case, extraordinarily sugg esting that
counsel for SAP should carry on with his questions in the absence of the Presiding Judge.
27.12.2. The latter suggestion (communicated by the Presiding Judge’s statement
shortly before his abrupt exit that, “When you’ve finished you’ll let me k now. I’m taking a
break”) clearly conveys the impression to any informed and objective observer that his mind

break”) clearly conveys the impression to any informed and objective observer that his mind
is closed to SAP’s version being put to the witness and to any evidence that SAP might elicit
from the witness Mr Linkies affecting his credibility;
27.12.3. The submissions made by counsel for SAP at the relevant time based on
universally accepted authority – not only fell on deaf ears but were actively proscribed by the
Court, and this to such a degree that when counsel for SAP sought to persist, the presiding
Judge simply exited the proceedings in a rage and advised counsel for SAP to continue in the
Court’s absence and to let the Court know “when (counsel had) finished”.
27.12.4. The meaning and implication being that the Presiding Judge was cont ent for
the proceedings to continue in his absence and without the Presiding Judge listening to or
taking any interest in the further cross-examination of SAC’s witness by counsel for SAP.
27.12.5. The Court’s attitude thus displayed founds a reasonable perception of bias on
the part of the Presiding Judge who should accordingly recuse himself.

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27.13. SAP reasonably perceives – on the basis of the behaviour and utterances of the
Presiding Judge on 6 November 2020 – that the Presiding Judge is biased and wil l not be
impartial.
27.14. Accordingly, SAP verily believes that it will not receive a fair trial before the Presiding
Judge.
28. In the circumstances, it is with deep regret that SAP requests the recusal of the
Presiding Judge.’

[7] Dr Eric Levenstein, a director of Werksmans Incorporated, SAP’s attorney of
record, who deposed to a confirmatory affidavit in the recusal application, had this to
say:
‘5. The immediately relevant events appear from pages . . . of the transcript.
6. I confirm that it fairly reflects and records what was said, subject to correction of the
following errors (which are established on the basis of me personally listening to and viewing
the original zoom audio visual recording):
6.1. At page 95 the transcript contains the following inaccurate entry in brackets:
“[COURT ADJOURNS COURT RESUMES]”
Which is inaccurate – there was no adjournment of the Court proceedings at that time.
. . .
6.6. It was obvious to all the observers that the presiding Judge had not tak en an
adjournment for any of the usual reasons, such as a tea or lunch or comfort break. These
breaks are always clearly announced by the presiding Judge at the appropriate time before
the Court rises and before he leaves his post.
. . .
10. I confirm the following, with reference to the transcript and audio/video tape of the
proceedings on 6 November 2020:
10.1. One of the key issues in the case before the presiding Judge is whether or not a
software distribution agreement (or SDA) was concluded between S AC and a subsidiary of
SAP, called SAPSI. SAC’s claim against SAP turn on the proposition that the SDA was
concluded. SAP disputes this central plank of SAC’s case.
10.2. SAC’s case on this issue, briefly summarised, is that the representative of SAC (Mr

10.2. SAC’s case on this issue, briefly summarised, is that the representative of SAC (Mr
Tattersall) prepared a draft SDA (which contains a “term” clause of 3 years from date of
signature, together with a “no prior representations” clause) for consideration and discussion
by representatives of SAPSI including, among others, the witness in quest ion, Mr Mario
Linkies (who was formerly – in 2004 – a consultant employed by SAPSI)

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10.3. SAC’s case is, further, that SAC’s representative (Mr Tattersall) signed the SDA on
behalf of SAC on 6 August 2004 at a meeting held in Bensheim in the presence of Mr Linkies
and two other SAPSI employees namely Mr Wittmer and Mr Ahrens.
10.4. SAC’s case goes on to allege, having abandoned its pleaded case that SAPSI also
signed the SDA on an unknown date by an unknown person, that SAC and SAPSI thereafter
concluded the SDA in various ways, in terms of principles of German law, without a signature
by SAPSI.
10.5. In support of that case, SAC’s two main witnesses, Messers Tattersall and Linkies,
testified that Mr Tattersall did not inquire after 6 August 2004 whether SAP SI had signed the
SDA because (so Mr Tattersall’s testimony went) Mr Tattersall considered the SDA to have
been concluded (in one of the ways allegedly permitted by German law, namely by conduct).
10.6. In terms of the relevant provisions of German law, the so-called “good faith contractor”,
that is, one who contracts with another in good faith, is entitled in certain circumstances to
assume for his benefit that the other contracting party’s representative is authorised to
represent that party in concluding a contract – it is a form of ostensible authority.
10.7. The critical issue, however, is that these provisions of German law – referred to as
Duldungsvollmacht and Ansheinsvollmacht – protect only the good faith contractor, that is, the
contractor who does not have knowledge of any defect in authority of the other party’s
representative to conclude the contract on that party’s behalf.
10.8. These issues were submitted and explained to the presiding Judge by counsel for SAP
earlier in the proceedings on 6 November 2020, as appears in the transcript from page 72 line
20 to page 2802 line 19.
10.9. In doing so, counsel for SAP was referring (and referred the Court) to the agreed legal
propositions recorded in the joint expert minute dated 17 September 2020 (signed by three

propositions recorded in the joint expert minute dated 17 September 2020 (signed by three
professors of German Law, two of whom SAC intends calling and one who SAP intends
calling) notably paragraphs 2, 3 and 4, as follows:
2. “Under German law, the formation of a contract requires the consent of both parties
which may be expre ssed tacitly or by conduct including implementation. In the case of
corporations, consent of a duly authorised agent is necessary. German company law provides
that the power to bind the corporation is vested in the members of the management board. In
addition, other corporate officers, such as a “Prokurist”, may be granted authority to bind the
corporation individually or together with others.
3. The contractual assent of corporate employees other than duly authorized agents is
not sufficient to bind the corporation to an agreement. The German-law doctrines of “tolerated
power of representation ( Duldungsvollmacht)” and “apparent power of representation
(Anscheinsvollmacht)” have as their common purpose to protect the good faith contractor.
They require that the represented legal juristic person knows the actions of the person

14

representing it and does not impede such actions. They also both require that the other party
to the contract acted in good faith, i.e. that it relied and had reason to rely on the perceived
authority of the would-be agent.
4 Section 154 para 2 BGB does not stipulate a form requirement. Rather, it stipulates a
rule of interpretation: where the parties have privately agreed to reduce their agreement to
writing, when in doubt, no agreement is formed until the relevant document was signed.”
10.10. In this legal context, it was essential for SAP, in meeting SAC’s case that Mr Tattersall
had not inquired after the meeting of 6 August 2004 whether the SDA had indeed been signed
by SAPSI, to put to Mr Linkies that the contemporaneous documentary evidence indicated
that Mr Tattersall had indeed made such inquiries after 6 August 2004. Mr Linkies, too, had
testified for SAC that Mr Tattersall had not made such inquiries, therefore it became necessary
to put SAP’s version to him on that issue.
10.11. Accordingly, counsel put it to Mr Linkies (who agreed) that he was Mr Tattersall’s main
contact person at SAPSI at the relevant time and counsel for SAP also put a variety [of]
contemporaneous documents to Mr Linkies in support of its case that Mr Tattersall had indeed
made inquiries with Mr Linkies about obtaining a signed SDA from SAPSI.
10.12. Four such documents – all dated 21 September 2004 – were critical to this issue, and
ultimately provoked the events which form the subject matter of this application, namely
. . .
10.14. The critical one proved to be “EL 3A”, an agreed English translation of which reads as
follows:
“From: Linkies, Mario
To: Wittmer, Manfred; Off, Frank
Cc: Hoefer, Dirk
Subject: Securinfo: Vertrag/Contract
Date: Tuesday, September 21, 2004 1:25:59 PM
Importance: High
Sensitivity: Confidential
Hello Manfred, Frank:
I regret to have to follow up again, but I urgently request the approval of the contract with

I regret to have to follow up again, but I urgently request the approval of the contract with
Securinfo. As we have had the details scrutinised by various colleagues, there should be no
further problems. Peter Tattersall is breathing do(w)n my neck, and I can quite understand
that Securinfo wants a definite statement on whether the partnership with SAP SI is now put
on an official basis, or whether we do not have legal certainty. That of course has implications
for our collaboration. I am therefore at present refraining from a further conversation with Peter
until the matter is clarified on our side.
Thank you and kind regards . . .

15

Mario Linkies”
10.15. During his evidence in chief, and in cross -examination, the witness (Mr Linkies)
testified that where his email speaks of Mr Tattersall “breathing down my neck” to obtain the
signature, this was in fact not true: in essence, he had written that simply to put pressure on
his colleagues to approve and sign (or have approved and signed) the SDA . . .’

[8] On 13 November 2020, Tsoka J, in dismissing the recusal application,
recorded:
‘[8] SAP SE’s alleged bias is based on what transpired on 6 November 2020. Although the
recordings of the proceedings of that day are attached to the application, the readings, bar
few typographical errors and few inaudibles, appear to be correct. However, the application is
based on selective, subjective and contrived interpretation as to what happened on that day
without taking into account the correct facts and the context that led me to leave the court,
with the camera and microphone unmuted as I urgently had to go to the bathroom.
. . .
[16] Counsel’s so-called right to force Mr Linkies to answer the already answered question
just before tea break, which question was asked on more than one occasion and the same
answer was given by the witness, irritated me with the result that I took my face mask and left
the court for the bathroom. Although irritated, at no stage did I storm out of court in a rage as
alleged. Neither did I raise my voice hence I informed counsel that I am taking a break and
when he got the a nswer he wanted, he will let me know. This is the reason why both the
camera and the microphone were left unmuted. Hopefully, counsel in my absence would
indeed force Mr Linkies to give the answer he required, which answer would, undoubtedly, in
the short break I took, would appear on the record.’

[9] The matter thereafter proceeded on the separated issue to finality before Tsoka
J, who, on 7 December 2021, delivered a written judgment, in which he concluded:
‘[214] In the result, the following order is made –

‘[214] In the result, the following order is made –
214.1 It is declared that the first defendant, SAP SE, is in breach of its legal duties to the
plaintiff, SAC, as provided for in section 826 alternatively section 823 of the BGB;
214.2 In consequence of paragraph 1 above, the first defendant, SAP SE , is liable to the
plaintiff, SAC, for such damages as may be shown to have been suffered by the plaintiff as a
consequence of such breaches;
214.3 The first defendant, SAP SE, is liable to pay the plaintiff’s costs of suit, including the
costs of three counsel where three counsel were so employed;

16

214.4 The first defendant, SAP SE, is liable to pay the plaintiff’s qualifying costs of the
plaintiff’s expert, Professor Dauner-Lieb;
214.5 The first defendant, SAP SE, is liable to pay the costs reserved by Sat chwell J on 25
May 2011.’

[10] On 28 December 2021, SAP applied to the learned judge for leave to appeal to
this Court in respect of both his judgment on the recusal application as well as his
judgment on the merits. Both applications were dismissed in an all too brief judgment
consisting of four paragraphs spanning less than two pages in the record. This despite
the learned judge having earlier recorded in his judgment on the merits:
‘[213] The issues raised in the determination of the merits is not only complex but difficult as
well. The determination of the merits involved foreign law, in the present matter codified
German Law. Most of the issues raised at this stage are contained in voluminous emails
written by Germans and in the German language. Utilization of three counsel, one or some of
whom speak German, was not only reasonable but necessary and warranted as well. In my
view, the employment of three counsel, where such counsel were so employed, cannot, in the
circumstances of this matter, be regarded as unreasonable.’

[11] On 5 May 2022, SAP petitioned this Court for leave to appeal. On 13 July 2022,
the two judges, who considered the petition, referred the applications for leave to
appeal in respect of both the merits and the recusal for oral argument in terms of s
17(2)(d) of the Superior Courts Act 10 of 2013 and directed the parties to be prepared,
if called upon to do so, to address the court on the merits. As observed in Body
Corporate of Marine Sands v Extra Dimensions 121 (Pty) Ltd:
‘. . . Different considerations come into play when considering an application for leave to
appeal as compared to adjudicating the appeal itself. As to the former, it is for the applicant to

convince the court that it has a reasonable prospect of success on a ppeal. Success in an
application for leave to appeal does not necessarily lead to success in the appeal. Because
the success of the application for leave to appeal depends, inter alia, on the prospects of
eventual success of the appeal itself, the argument on the application would, to a large extent,
have to address the merits of the appeal.’ 1


1 Body Corporate of Marine Sands v Extra Dimensions 121 (Pty) Ltd [2019] ZASCA 161; 2020 (2) SA
61 (SCA) para 1.

17

[12] It would be appropriate to begin with the recusal appeal, which brought to the
fore the question whether the learned judge’s conduct bore the appearance of bia s.
The law will not lightly suppose the possibility of bias in a judge. But, there is also the
simple fact that bias is such an insidious thing that even though a person may in good
faith believe that he was acting impartially, his mind may unconsciously be affected by
it.2 It is settled law that not only actual bias but also the appearance of bias disqualifies
a judicial officer from presiding (or continuing to preside) over judicial proceedings. ‘A
judge who sits in a case in which she or he is disqualified from sitting because, seen
objectively, there exists a reasonable apprehension that the judge may be biased, acts
in a manner inconsistent with s 34 of the Constitution and in breach of the requirements
of s 165(2) and the prescribed oath of office’.3 The disqualification is so complete that
continuing to preside after recusal should have occurred renders the further
proceedings a nullity.4 Where the offending conduct sustains the inference that in fact
the presiding judge was not open -minded, impartial or fair during the trial, this Court
will intervene and grant appropriate relie f.5 In such a case the Court will declare the
proceedings invalid without considering the merits.

[13] The key issue for consideration and determination is whether the conduct
complained of by SAP created a reasonable apprehension of bias on the application
of the test laid down by the Constitutional Court in President of the Republic of South
Africa and Others v South African Rugby Football Union and Others (the SARFU test),
namely:
‘. . . [t]he question 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 of the case, that is a mind open to persuasion by the evidence and the

on the adjudication of the case, that is a mind open to persuasion by the evidence and the
submissions of counsel.’6


2 R v Gough [1993] UKHL 1; [1993] 2 All ER 724 at 728.
3 S v Basson [2005] ZACC 10; 2005 (12) BCLR 1192 (CC); 2007 (3) SA 582 (CC) para 25; South African
Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022
(4) SA 1 (CC) (South African Human Rights Commission) para 65.
4 Take and Save Trading CC and Others v Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA
1 (SCA) para 5.
5 S v Rall 1982 (1) SA 828 (A) at 833B; S v Meyer 1972 (3) SA 480 (A) at 484D.
6 President of the Republic of South Africa and Others v South African Rugby Football Union and Others
[1999] ZACC 9; 1999 (4) SA 147 (CC) para 48. Recently affirmed by the Constitutional Court in South
African Human Rights Commission fn 3 above para 63.

18

[14] As I see it, Tsoka J appears to have erred i n several fundamental respects.
First, the judge appears to have misconceived the evidence. The learned judge
observed that he had become ‘irritated’ by SAP’s counsel seeking ‘to force Mr Linkies
to answer the already answered question’, which was formulated in less than clear
language as ‘the repetitive asking of Mr Linkies that Mr Tattersall was breathing down
his neck was continued even though the witness had already answered the question’.
But, on the evidence, properly construed, the question had not been repeatedly asked
and repeatedly answered. This misunderstanding on the part of the learned judge
provoked the irritation and not just his summarily abandoning the hearing, but also
directing that the proceedings should continue in his absence. The line of cross -
examination was undoubtedly material to SAC’s claim.

[15] That Mr Tattersall was indeed breathing down Mr Linkies’ neck to obtain a duly
signed copy of the SDA (as stated in Mr Linkies’ email), would certainly be supportive
of SAP’s defence that he (Mr Tattersall) knew that the signature of the other party
(SAP SI) was required for a validly concluded agreement. In those circumstances, so
the contention advanced by SAP goes, an essential element of the German
substantive law for SAC’s case would be absen t; namely, for SAC to succeed on the
strength of so -called apparent authority ( Anscheinsvollmacht) or tolerated auth ority
(Dulldungsvollmacht). Both doctrines, so the contention proceeds, require that SAC in
the form of Mr Tattersall acted in good faith, i.e. that SAC relied on and had reason to
rely on the perceived (apparent or tolerated) authority of its would-be agent. This is an
essential requirement under German Law that would not have been fulfilled if Mr
Tattersall knew at all times that an official signature by SAP SI was required and
remained outstanding. In this context , it was necessary for SAC to prove that Mr

remained outstanding. In this context , it was necessary for SAC to prove that Mr
Tattersall acted in good faith in relying on the assurance that the SDA had indeed been
concluded and that it was not necessary for an authorised person from SAP SI to sign
it. Whether or not he continued asking if it had been signed after receiving an
assurance that it was operative was central to this issue. If he persisted in requiring a
signed copy – that had to bear on the issue of good faith alluded to above.

[16] Mr Linkies testified that contrary to what he had expressly stated in his email,
Mr Tattersall was in fact not ‘breathing down his neck’. Rather, so testified Mr Linkies,
he had expressed himself in that fashion to try to pressurise his colleagues to obtain

19

the necessary (SAP SI) signature on the SDA. SAP’s counsel accordingly put to Mr
Linkies that he was therefore lying (to his colleagues) in his email addressed to them.
The response elicited from Mr Linkies was: ‘why are you saying I am lying? I don’t – I
didn’t l ie’. SAP’s counsel then sought to probe that response by asking: ‘If you’re
saying to His Lordship he ( Mr Tattersall) was not breathing down my neck then what
you wrote there is a lie?’ Before that question (a perfectly legitimate line of enquiry on
the face of it) could be answered, the learned judge interrupted the cross-examination,
stating ‘the question has been answered repeatedly’. The question, however, had not
been answered – repeatedly or at all. The continuing enquiry was not, as the judge
incorrectly found, directed at whether Mr Tattersall was breathing down Mr Linkies’
neck. That exchange had passed. It had, by that stage, come to be unavoidably
accepted by Mr Linkies that the email had indeed stated in terms that Mr Tattersall
was breathing down his neck. Mr Linkies had moved on to testifying that he had simply
written this to pressure his colleagues and that in truth it would be wrong to attribute
to Mr Tattersall what had been stated by him in his email. Mr Linkies denied that he
had lied to his colleagues and challenged SAP’s counsel to explain to him why he was
accused of untruthfulness. Counsel sought to rise to the challenge, but was both
incorrectly and prematurely cut off by the judge. In order for it to be argued later that
Mr Linkies ha d lied, when it was expedient for him to do so, it was necessary for
counsel to put to him why it would be submitted in due course that the judge should
be slow to believe his evidence.

[17] Properly understood, the cross-examination that prompted the abrupt departure
of the judge had nothing to do with ‘the repetition of a question which had already been
put and answered multiple times’. The judge had prevented counsel from properly

put and answered multiple times’. The judge had prevented counsel from properly
developing the line of questioning by interjecting: ‘. . . may we proceed please and
then you can argue that point. The question has been answered repeatedly’. However,
absent a proper factual foundation, it may likely not have been open to counsel to call
Mr Linkies’ mendacity into question. In fairness to Mr Linkies, counsel had to afford
him an opportunity of dealing with the issue, so that counsel could in due course submit
that the evidence left no room for an honest mistake and that Mr Linkies was content
to resort to a deliberate falsehood, when it was expedient for him to do so.

20

[18] Second, when counsel attempted to justify his line of questioning, the judge
became irritated and summarily abandoned the proceedings with the parting words,
‘when you’ve finish ed you’ll let me know. I am taking a break’. How long, it was
anticipated, the break was to last, no one was to know. What is more, the judge
expected the cross-examination to continue in his absence. In the judgment, the judge
is at pains to emphasise this by stating:
‘I inform counsel that I am taking a break and when he got the answer he wanted, he will let
me know. This is the reason why both the camera and the microphone were left unmuted.
Hopefully, counsel in my absence would indeed force Mr Linkies to give the answer he
required, which answer would, undoubtedly, in the short break I took, would appear on the
record.’
In that, the judge appeared to operate on the fallacious supposition that the cross -
examination could indeed proceed in his absence. It plainly could not. Absent the
judge, there was no properly or duly constituted court. Such proceedings, as the judge
envisaged would continue in his absence, would have been fatally flawed and not in
accordance with law.

[19] Third, the extraordinary cir cumstances thus created by the judge were
compounded by the explanation offered in the judgment on the recusal. The
application was not about an abandonment of the hearing because the judge ‘urgently
had to go to the bathroom’. The first time that mention was made of a bathroom break
was in the recusal judgment. It is common cause that the bathroom explanation was
not mentioned at any of the following appropriate times: ( a) immediately upon the
hearing resuming (when the judge returned to the virtual hearing hosted on the Zoom
platform); ( b) in the extensive discussions with counsel immediately thereafter; ( c)
when the judge was informed that a recusal application would be brought; or (d) during
the hearing of the recusal application. It follows that the bathroom explanation did not

the hearing of the recusal application. It follows that the bathroom explanation did not
form part of the factual substratum on which the recusal application fell to be
determined because it was not disclosed and thus not known to the reasonable,
objective and informed person at the releva nt time. It is also inconsistent with the
direction moments earlier ‘may we proceed please and then you can argue that point’.
Thus, the bathroom explanation, having not been disclosed at the appropriate time
was not only irrelevant for the purposes of applying the SARFU test, but there is also
much to be said for the suggestion that it is improbable and thus tends to exacerbate

21

the apprehension of bias. If that was indeed the reason, the judge would have
adjourned the court, as he had done on every other occasion, instead of simply leaving
in the expectation that the matter would proceed in his absence.

[20] Fourth, the judge’s ex post facto explanation that ‘both the camera and the
microphone were left unmuted’ to ensure that ‘the answer . . . would appear on the
record’, finds no purchase. An independent service provider, Realtime Transcriptions,
was responsible for recording and transcribing the trial proceedings and had access
to the virtual hearing at all times for that purpose. The fact that the judge left ‘both the
camera [sic] and the microphone. . . unmuted’ was irrelevant to the recording of the
evidence, which continued independently of any action on the part of the judge. The
relevance of the observation is that it confirms the in tention of the learned judge that
the hearing should continue in his absence. However, had the proceedings continued,
the judge would not have been in position to observe the witness and assess his
evidence in real time. It would have been well-nigh impossible for the judge, who had
abstracted himself from the proceedings , to make a proper assessment of the
credibility of the witness, with reference, inter alia, to demeanour, candour and the
calibre and cogency of such witness’ performance relative to other witnesses.

[21] Fifth, the correct facts demonstrate to the reasonable, objective and informed
person that the judge had closed his mind to – and was not in the least interested in –
appreciating the extent to which or why Mr Linkies had demonstrated him self to be a
liar. This was material evidence relevant to the success or failure of a critical element
of SAC’s cause of action in respect of which Mr Linkies was one of SAC’s key
witnesses of fact. Tellingly, as the judgment on the merits demonstrates, th e judge
was far too receptive to Mr Linkies’ evidence. On that score, the learned judge held:

was far too receptive to Mr Linkies’ evidence. On that score, the learned judge held:
‘[41] Mr Linkies’ unchallenged evidence, despite SAP’s attempt to put his evidence in doubt,
is that he himself pressurized Mr Tattersal l to push his own company to regularize the
relationship between SAC and SAP SI. In fact, Mr Linkies denied that Mr Tattersall “sat on his
neck” by pressurizing him to produce the signed SDA. . ..
[42] . . . Mr Linkies’ testimony that Mr Tattersall never pressurized him to produce the signed
SDA, and that pressure on SAP SI to sign the SDA came from him, remains unchallenged.
The pressure, if any, exerted on Mr Linkies by Mr Tattersall is therefore not a concession on

22

Mr Tattersall’s part that he knew that the SDA had not yet been a pproved, authorized and
signed.
[43] In fact, Mr Linkies explained to the court that he, himself, was put under pressure in
order to make the concession that Mr Tattersall pressurized him to produce the signed SDA.
He explained to the court that he made the concession as his life and that of his family was
put at risk. He testified that he received threatening telephone calls with the result that, to save
his and his family’s lives, he admitted that Mr Tattersall indeed did pressurize him. To save
his life and that of his family, he left SAP. The result is that there is therefore no basis to
second-guess Mr Linkies’s evidence that he pressurized SAP SI for his own purposes for the
signature of the SDA. And that it was not in fact Mr Tattersall but himself who pressurized his
employers, through Mr Tattersall, for the production of the signed SDA. The pressure, if any,
does not in any way suggest that there was not valid SDA. The pressure, if any, and from
whatever source it came from, in all probabilities, was to regularized the formal relationship
between the two contracting parties. Nothing else.’

[22] With respect to the learned judge, those findings, on the face of it, appear to be
confusing and contradictory. Moreover, as a careful perusal of the record shows, scant
regard was paid to important concessions mad e by Mr Linkies whilst under cross -
examination. The rather perfunctory and superficial analysis of Mr Linkies as a witness
does little justice to the range of aspects on which SAP took issue with Mr Linkies ’
evidence and largely ignores both internal and e xternal contradictions, any latent or
patent bias – such as there may have been, as also the probabilities. It also largely
ignored the evidence adduced on behalf of SAP to gainsay Mr Linkies evidence. Had
counsel not been interrupted in his pursuit of a p erfectly legitimate line of cross -

counsel not been interrupted in his pursuit of a p erfectly legitimate line of cross -
examination, perhaps the judge would have been less charitable in his assessment of
Mr Linkies as a witness. The upshot is that it cannot with any confidence be said that
the conduct complained of did not impact substantively and materially on the merits of
the claim asserted by SAC and did not conduce to a reasonable apprehension of bias.

[23] Sixth, even were it to be accepted that the question had indeed been repeatedly
asked and answered, in instructing that the hearing continue until SAP’s counsel had
‘finished’ before leaving the platform, the inescapable impression is that the judge no
longer took any interest in the further evidence on that issue, that counsel was
engaged in a fool’s errand and that the judge had not only closed his mind to any such

23

answer as counsel may elicit in cross examination, but also that his mind was no longer
open to conviction. As it was put in S v Le Grange:
‘It must never be forgotten that an impartial judge is a fundamental prerequisite for a fair
trial. The integrity of the justice system is anchored in the impartiality of the judiciary. As a
matter of policy it is important that the public should have confidence in the courts. Upon this
social order and security depend. Fairness and impartiality must be both subjectively present
and objectively demonstrated to the informed and reasonable observer. Impartiality can be
described – perhaps somewhat inexactly – as a state of mind in which the adjudicator is
disinterested in the outcome, and is open to persuasion by the evidence and submissions. In
contrast, bias denotes a state of mind that is in some way predisposed to a particular result,
or that is closed wit h regard to particular issues. Bias in the sense of judicial bias has been
said to mean ‘a departure from the standard of even -handed justice which the law requires
from those who occupy judicial office’. In common usage bias describes ‘a leaning, inclination,
bent or predisposition towards one side or another or a particular result. In its application to
legal proceedings, it represents a predisposition to decide an issue or cause in a certain way
that does not leave the judicial mind perfectly open to con viction. Bias is a condition or state
of mind which sways judgment and renders a judicial officer unable to exercise his or her
functions impartially in a particular case.
Partiality has both an attitudinal and behavioural component.’7 (Footnotes omitted.)

[24] I recognise that presiding over a matter such as this can be a difficult task. And,
in a trial of this length and complexity, the burden on the presiding judge would have
been all the greater. One also knows all too well how cross -examination can
sometimes appear protr acted and seemingly irrelevant. ‘Impatience, though, is

sometimes appear protr acted and seemingly irrelevant. ‘Impatience, though, is
something which a judicial officer must, where possible, avoid and in any event always
strictly control. For, it can impede his perception, blunt his judgment and create an
impression of enmity or prejudice in the person against whom it is directed . . . It may
serve to undermine the proper course of justice and could lead to a complete
miscarriage of justice. A judicial officer can only perform his demanding and socially
important duty properly if he also stands guard over himself, mindful of his own
weaknesses (such as impatience) and personal views and whims and controls them.’8


7 S v Le Grange and Others [2008] ZASCA 102; 2009 (1) SACR 125 (SCA) 2009 (2) SA 434 (SCA);
[2010] 1 All SA 238 (SCA); 2010 (6) BCLR 547 (SCA) paras 21 and 22.
8 Ibid para 18.

24

[25] Whilst, no doubt, judicial officers can and do form provisional views , including
perhaps even in respect of the credibility of a witness, it remains the fundamental duty
of every presiding officer not to close their mind to changing those provisional
impressions, until the last word has been spoken. After all, a cornerstone of any legal
system is the impartial adjudication of disputes that come before the courts. What is
required is not only that the trial be conducted open-mindedly, impartially and fairly,
but that such conduct be manifest to all those who are concerned in the trial and its
outcome. In this regard, language is important and in this case the language employed
is in some respects rather unfortunate. Even if unintended, the spectre that it raises is
certainly suggestive of one who has certain preconceived notions and who allows
those notions to affect his judgement.

[26] In this matter, both parties were represented by very senior counsel. A perusal
of the record reveals that the issues of fact that required determination were of a rather
involved and complicated nature. It is therefore a matter that occasions some surprise
that the learned judge should have found it necessary to intervene as he did. He, no
doubt with good intentions, appears to have been anxious to ensure that the matter
should not drag on unnecessarily and sought, it would seem, to expedite the hearing.
In doing so, it appears that he may have overlooked the judge’s usual role in a trial,
thereby denying himself the full advantage enjoyed by a trial judge who, ‘as the person
holding the scale between the contending parties, is able to determine objectively and
dispassionately, from his position of relative detachment, the way the balance tilts’.9

[27] There was some suggestion that as we are concerned with an isolated
occurrence, the threshold set by the authorities - and consequently the test for recusal

occurrence, the threshold set by the authorities - and consequently the test for recusal
- has not been met. It was stated on behalf of SAC in answer to the recusal application:
‘. . . fundamentally, no reasonable, objective and informed person could reasonably conclude
from this single interaction that the Court was biased or would not be impartial in deciding the
matter. It is the most remarkable feature of this recusal application that it is entirely foun ded
on a single interaction . . .’
Although SAP relies on an isolated incident; it is likely unprecedented. And, as I have
been at pains to demonstrate, not only is the enquiry not a hermetically sealed one,

9 Ibid para 28.

25

but also, in conducting himself as he did, the learned judge breached several cannons
of good judicial behaviour. Thus, the curtailment of a legitimate avenue of cross
examination and the failure to keep an open mind on that issue undoubtedly infected
the substantive merits of the matter, thereby resulting in a manifest failure of justice. It
is, after all, a fundamental principle of our law and, indeed, of any civilised society that
a litigant is entitled to a fair trial. The requirement that justice must not only be done,
but also to be seen to be done has been recognised as lying at the heart of the right
to a fair trial. This necessarily presupposes that the judicial officer is fair and unbiased
and conducts the trial in accordance with those rules and principles or procedure which
the law requires.10 The fairness of a trial would clearly be under threat if a court does
not (as happened here) apply the law and assess the facts of the case properly and
impartially.

[28] ‘Because advocacy is an art and not a science, and because the adversary
system requires deference to counsel’s informed decisions, strategic choices must be
respected in these circumstances if they are based on professional judgment’. 11
Judicial scrutiny of counsel’s performance must thus be highly deferential.12 In dealing
more generally with the role and attitude expected of a presiding judge, Lord Denning
MR had this to say in Jones v National Coal Board:
‘Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to
intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature
of the evidence or otherwise, it is only by putting questions of his own that he can properly
follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one
reason that such interventions should be as infrequent as possible when the witness is under

reason that such interventions should be as infrequent as possible when the witness is under
cross-examination. It is only by cross-examination that a witness’s evidence can be properly
tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to
think out the answer to awkward questions; the very gist of cross -examination lies in the
unbroken sequence of question and answer. Further than this, cross-examining counsel is at
a grave disadvantage if he is prevented from following a preconceived line of inquiry which is,
in his view, most likely to elicit admissions from the witness or qualifications of the evidence
which he had given in chief. Excessive judicial interruption inevitably weakens the

10 S v Tyebela 1989 (2) SA 22 (A) at 29G.
11 Strickland, Superintendent, Florida State Prison et al v Washington [1984] USSC 146; 466 US 668 at
681.
12 Ibid at 689.

26

effectiveness of cross-examination in relation to both the aspects which we have mentioned,
for at one and the same time it gives a witness valuable time for thought before answering a
difficult question, and diverts cross-examining counsel from the course which he had intended
to pursue, and to which it is by no means easy sometimes to return.’13

[29] Although mindful of the presumption of judicial impartiality, as the Constitutional
Court has recognised, ‘there are of course instances where a judicial office r may not
be able to demonstrate impartiality or there may exist some apprehension of bias’ and
in such instances the presumption can be displaced by ‘cogent evidence’. 14 In such
instances, ‘a judicial officer should not be unduly sensitive and ought not to regard an
application for his recusal as a personal affront’. 15 As Ngcobo CJ put it in Bernert v
ABSA Bank Ltd:
‘a judicial officer should not hesitate to recuse himself or herself if there are reasonable
grounds on the part of a litigant for apprehending that the judicial officer, for whatever reason,
was not or will not be impartial. In a case of doubt, it will ordinarily be prudent for a judicial
officer to recuse himself or herself in order to avoid the inconvenience that could result if, on
appeal, the appeal court takes a different view on the issue of recusal’.16

[30] In the circumstances, the reasonable, objective and informed person in SAP’s
position would apprehend that a presiding judge, who: (a) prevents its counsel from
cross-examining a witness in response to a challenge from such witness to be shown
why his credibi lity is being impugned; ( b) then irritatedly abstracts himself from the
hearing, without first adjourning; and, (c) whilst at the same time dir ecting that the
hearing continue in his absence until counsel has ‘finished’, has shown himself to have
closed his mind to the evidence and the submissions of counsel. The belated

closed his mind to the evidence and the submissions of counsel. The belated
improbable explanation by the judge for his abrupt departure serves simply t o
exacerbate the apprehension. It follows, as a consequence of the cumulative factors
alluded to, that the question: whether a reasonable apprehension of bias can be said
to exist, must accordingly be answered in the affirmative. What results from this is that
the further judgment of Tsoka J on the merits is vitiated by the nullity of the
proceedings, which occurred as a result of him continuing to sit in a trial where recusal

13 Jones v National Coal Board [1957] EWCA Civ 3.
14 South African Human Rights Commission fn 3 above para 60.
15 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service [1996] ZASCA 2; 1996 (3) SA 1 (A)
at 13H-14C.
16 Bernert v ABSA Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC) para 36.

27

was required.17 The only question is whether there is a reasonable apprehension of
bias: ‘if there is, cadit quaestio (the question falls away/the case is closed), no matter
what effect this might have on the particular proceedings’.18

[31] In the result:
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, such costs to include
the costs of two counsel.
4. The orders of the court a quo dated 13 November 2020 and 7 December 2021
under case number 20378/2008 are set aside and replaced with the following:
‘a. The application for recusal is granted and the first and second respondents in
the recusal applic ation are directed, jointly and severally, to pay the costs of the
application, including the costs of two counsel;
b. The plaintiff and the second defendant are directed, jointly and severally, to pay
the costs of the trial, including the costs reserved by Satchwell J on 25 May 2011, such
costs to include the costs of two counsel and the qualifying costs of the first
defendant’s experts, Professors Wagner and Wainer and Messrs Burke and O’Neill.’



______________________
V M PONNAN
JUDGE OF APPEAL


17 R v Milne and Erleigh (6) 1951 (1) SA 1 (A) at 6H; Council of Review, South African Defence Force,
and Others v C Monning and Others 1992 (3) SA 482 (A) at 495A-D.
18 South African Human Rights Commission fn 3 above para 74.

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Appearances

For the appellant: CHJ Badenhorst SC and K Spottiswoode
Instructed by: Werkmans Inc., Johannesburg
Symington De Kok Inc., Bloemfontein.

For the respondent: CDA Loxton SC, AJ D’Oliveira and N Siboza-
Ruhinda
Instructed by: Bosch Marais & Associates Inc., Johannesburg
Honey Attorneys, Bloemfontein.