Twenty-Third Century Systems (Pty) Ltd and Another v SAP Africa Region (Pty) Ltd (172/2023) [2025] ZASCA 51; [2025] 3 All SA 62 (SCA) (30 April 2025)

Twenty-Third Century Systems (Pty) Ltd and Another v SAP Africa Region (Pty) Ltd (172/2023) [2025] ZASCA 51; [2025] 3 All SA 62 (SCA) (30 April 2025)

The Supreme Court of Appeal held that the exclusion of damages and time bar clauses in the agreement are secondary obligations that survive termination, including termination by repudiation, as expressly provided by the survival clause. The Court distinguished between primary obligations, which end upon acceptance of repudiation, and secondary obligations, which regulate post-termination consequences and endure as per the contract. The doctrine of approbation and reprobation does not preclude SAP from relying on these clauses, as the parties agreed they would survive any termination. The appeal was dismissed, and SAP was entitled to rely on the limitation of liability and time bar clauses...

Citation
[2025] ZASCA 51
Parties
Appellant: Twenty-Third Century Systems (Pty) Ltd; Appellant: Systems Global (Pty) Ltd; Respondent: SAP Africa Region (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 April 2025
Case Number
172/2023
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal dismissed. Costs awarded to respondent, including costs of two counsel.
Judges
Mocumie, Kgoele, Kathree-Setiloane, Windell, Bloem
Legal Topics
Contract Repudiation, Survival Clause, Limitation of Liability, Time Bar, Approbation and Reprobation
Commercial and Corporate Civil Procedure Contract Repudiation Survival Clause Limitation of Liability Time Bar Approbation and Reprobation

Case Brief

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Parties

Twenty-Third Century Systems (Pty) Ltd

Appellant

Systems Global (Pty) Ltd

Appellant

SAP Africa Region (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether a contracting party can rely on exclusion of damages and time bar clauses after termination of the contract due to repudiation.
  2. 2 Whether the survival clause in the agreement allows SAP to rely on limitation of liability and time bar provisions post-repudiation.
  3. 3 Whether the doctrine of approbation and reprobation precludes SAP from relying on contractual clauses after breach.

Ratio Decidendi

The Supreme Court of Appeal held that the exclusion of damages and time bar clauses in the agreement are secondary obligations that survive termination, including termination by repudiation, as expressly provided by the survival clause. The Court distinguished between primary obligations, which end upon acceptance of repudiation, and secondary obligations, which regulate post-termination consequences and endure as per the contract. The doctrine of approbation and reprobation does not preclude SAP from relying on these clauses, as the parties agreed they would survive any termination. The appeal was dismissed, and SAP was entitled to rely on the limitation of liability and time bar clauses...

Court Disposition

Appeal dismissed. Costs awarded to respondent, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The first appellant shall pay the respondent’s costs, such costs to include the costs of two counsel, where so employed.