While the State Information Technology Agency (SITA) continues to use critical IT systems without paying embattled police IT supplier Forensic Data Analysts (FDA), the Supreme Court of Appeal (SCA) dismissed its application for leave to appeal against stopping the use of the system unless they pay.
“The application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason why an appeal should be heard,” read the order of the SCA dated June 25.
In April 2018, FDA threatened to suspend the police’s property control and exhibit management and firearm permit system (FPS) unless they and SITA pay it.
FDA, which is run by former police officer Keith Keating, claimed that SITA had not paid it for months.
Two systems – as well as a system called the VA-Amis proprietary solution supplied by Keating’s other company Investigative Software Solutions (ISS) – were all switched off, leaving the police’s capacity to handle forensic evidence, firearm controls and their ability to undertake in-depth investigations compromised.
SITA and the police then approached the Gauteng High Court in Pretoria on an urgent basis to force FDA to reactivate the systems.
SITA was successful in reactivating the system, however FDA brought a counter application to interdict the use of the software.
In January this year, the High Court ruled in favour of FDA, but suspended it for 60 days to allow SITA and the police to find an alternative solution or pay FDA.
In its judgment, the High Court stated that: “[The] SAPS and SITA have been using the FPS system unlawfully for more than a year.
“They clearly have every intention of continuing to do so, thereby prolonging their unlawful conduct.
“A court cannot simply sit by and allow the state to continue acting in contravention of the law… “
The court said neither the police nor SITA have a perpetual license to use the system and therefore FDA should be compensated for its use.
“[The] applicants stopped paying FDA for its services for no discernible reason. They were warned by their legal representatives that they should continue to pay for the use of the FPS system, advice which they ignored, forcing the respondents to approach the court for relief.”
The High Court also ruled that despite being warned that their conduct was “reprehensible”, SITA and the police continued to put up a “frivolous defence”.
It interdicted them from infringing on FDA’s copyright of the computer program relating to the firearm permit system.
“The parties shall endeavor to agree on a market-related licence fee for the use of the system.”
But SITA appealed the High Court ruling, while the police withdrew its application, saying that they would abide by the ruling.
The case was then later dismissed in the same court and SITA petitioned the SCA.
Speaking to News24 on Wednesday, Keating said he was pleased with the outcome.
“It confirms the IP [intellectual property] ownership of the software and also that the police and SITA have been using our software illegally for more than 18 months now and refusing to pay for the usage thereof.”
This matter should have and could have been settled more than a year ago if SITA and the police had just been willing to discuss this and find a resolution, he added, saying it was obvious that the motivation in the matter had not been about service delivery or what was best for the country.
“I was accused of holding South Africa to ransom when in fact SITA and the police refused to discuss or negotiate a settlement with FDA even after [standing committee on public accounts] gave permission to the police to negotiate and settle the matter in October 2018.”
Keating added: “My honest belief is that the attorneys of record for both the police and SITA have been exploiting the situation financially and not acting responsibly in trying to find an amicable settlement to the national security threat discussed in Scopa by the police.”