General

TO: All public stakeholders and the media                  4 April 2018 [Amendment in GREEN]

SAPS AND SITA SOC LIMITED INDIFFERENT TO IMMINENT COLLAPSE OF CRIMINAL JUSTICE SYSTEM

INTRODUCTION AND EXECUTIVE SUMMARY

  1. FDA  is an entity that supplies critical infrastructure systems and services to the South African Police Service (SAPS) and the State Information Technology Agency (SITA) SOC Limited. These systems and services by FDA are rendered to:

    1. SAPS for the provision of maintenance and support for the Property Control and Exhibit Management (PCEM version 1.1) for a period of two years (“PCEM”); and,

    2. SITA SOC Limited for the maintenance and technical support of the Firearm Permit System used by SAPS (“FPS”).

  1. FDA has rendered services to SAPS in respect of PCEM without payment of any invoices issued by FDA during the period 1 December 2017 to 31 March 2018.

  2. In respect of FPS, SITA has on 31 October 2017 awarded a contract for three years to FDA, subject to the conclusion of a written agreement. FDA signed the written agreement provided to it by SITA. However, SITA has to the best of FDA’s knowledge failed to sign the written agreement providing for FPS services from 1 November 2017. Notwithstanding SITA’s failure, FDA has rendered the FPS services since 1 November 2017 without any payment by SITA whatsoever. Although SITA has enjoyed the full benefit of services rendered by FDA since 1 November 2017, SITA has failed to make any payment to FDA.

  3. FDA has informed SAPS and SITA that to continue providing critical services to SAPS, directly or through SITA, is unjustifiable and irresponsible in circumstances where payments are unlawfully withheld and where FDA will receive no payments in the foreseeable future. FDA has funded their operations and services to SAPS and SITA without receipt of any remuneration since December 2017.

  4. On Wednesday, 4 April 2018, at midnight, use of and access to proprietary licensed software and ancillary support services in respect of PCEM and FPS will unfortunately be suspended by FDA, unless an appropriate agreement could be reached with SAPS before system shutdown. SAPS and other stakeholders have been duly warned about the risks involved, but have acquiesced regardless of the impacts. The Minister was informed and his office was the only one to respond stating the National Commissioner of Police had been requested for feedback.

  5. SAPS and SITA have unlawfully withheld payment for services actually rendered by FDA, seemingly for nefarious purposes, and have reconciled themselves with the following imminent devastating effects resulting from their conduct, including (without limitation):

  • SAPS officials may be unable to check in and out of duty.

  • SAPS officials may be unable to lawfully possess or use firearms.

  • Firearms and ammunition in possession of SAPS may not be accounted for during the suspension period.

  • SAPS officials may be unable to access and manage evidence in the Forensic Science Laboratory.

  • The chain of custody may be broken of millions of exhibits in the Forensic Science Laboratory.

  • The NPA may be unable to remove evidence to be used in court proceedings.

  • The Republic of South Africa may be in breach of certain international treaties involving Interpol and the United Nations.

The above list is not exhaustive.

  1. Seeing that the above consequences will ultimately be to the detriment of the public, all efforts will be exhausted to bring this information to the knowledge of the public within the next few hours. The public is called upon to hold the officials to account who have made the decision to put you at risk.

  2. Despite extensive efforts and avenues having been traversed in an attempt to ensure lawful conduct and administrative justice, SAPS and SITA SOC Limited have essentially imposed non-payment as an unlawful sanction against FDA, without following lawful due process.

  3. No official reasons have been provided by SAPS and SITA to discontinue payment to FDA, although a Senior Counsel opinion was made available to Parliament which indicated the duty to effect outstanding payments. Copies of correspondence transmitted by FDA to a long list of key stakeholders is available here.

  4. FDA regard itself, its staff and directors indemnified from any liability that may ensue.

  5. The National Commissioner of Police has been called upon to intervene appropriately to prevent a national security crisis, by attending to the following prior to the suspension date:

  • Honouring the duty to make outstanding payments (or provide a bankable undertaking to that effect).

  • Communicating SAPS’s intention to meaningfully consult with FDA.

  • Instructing SITA to act lawfully and execute its obligations.

SUSPENSION DATE

  1. SAPS and SITA have been in perpetual default of payment since December 2017. 3 April 2018 was the first business day of the new financial year. The unspent budget allocations for the 2017/18 fiscal period were forfeited as of 31 March 2018 (or 29 March 2018 as the last business day of the fiscal period).

  2. FDA have brought litigation proceedings against SITA SOC Limited to enforce the legal duties of the SITA board to make lawfully due payments in respect of a further contract known as the ROFIN contract. The matter would have been heard on Tuesday, 27 March 2018. SITA however failed to deliver Opposing Affidavits in time, which necessitated a postponement of proceedings to April or beyond. FDA believes that the High Court hearing would bring finality to the matter by confirming SITA’s unlawful withholding of payment.

  3. FDA has been advised by multiple legal professionals to ensure that the current approach is lawful in the circumstances. Had it not been for these extra safeguards adopted prior to the issuing hereof, and disappointed undertakings by SAPS, this statement would have been published earlier.

EXTENSIVE EFFORTS MADE & WALLS HIT

  1. Apart from litigation currently pending, FDA has addressed the following communiques to stakeholders in attempts to rectify the unacceptable state of affairs (copies are available here):

  • 3 formal representations to Parliament

  • 3 formal representations to National Police Commissioner

  • 2 formal representations to Minister of Police

  • Various formal representations to the SITA board and Audit and Risk Committee.

  • A formal media statement in December 2017.

  • Complained to journalists on false reporting (of which one has been referred to the Press Ombudsman, to date).

  1. The only formal responses received were from the Minister of Police, one journalist, and the Press Ombudsman.

  2. In his response, the Minister of Police confirmed that he had noted the severity of the matter and referred it to the National Commissioner of Police for further attention. Regrettably, to no avail.

SAPS AND SITA ACTING AGAINST LEGAL ADVICE AND  CONSTITUTIONAL COURT PRECEDENTS

  1. The Independent Police Investigative Directorate (“IPID”) representatives, during a meeting of the Portfolio Committee on Police on Thursday, 29 March 2018, expressed confirmation of their recommendations that SAPS must terminate all contracts with FDA. IPID has persisted with this forceful effort to interfere with FDA services to SITA and SAPS, despite many indications that IPID is not acting lawfully by doing so.

  2. Parliament’s Standing Committee on Public Accounts (“SCOPA”) has retracted an initial media statement against FDA, after a grievance was lodged by FDA against the content thereof. SCOPA did not formally notify FDA of the retraction and re-issuing of the statement, as required by section 25 of the Powers, Privileges and Immunities of Parliament Act, although it is regarded as an admission that SCOPA would have been advised that the initial position was inaccurate and inappropriate.

  3. During SCOPA hearings, both SAPS and SITA have admitted that they could not find reasons to terminate, suspend or review FDA contracts or awards, yet both have persisted in their defaults against FDA. In fact, SAPS and SITA have directly admitted that Senior Counsel opinions have advised them both that payment must be made, unless grounds of breach exist; to date no breach is formally noted against FDA.

  4. In their Opposing Affidavit in the matter relating to the Rofin contract, SITA argued that the FDA agreements were purely commercial and not of an essential nature. SITA went on to say that SAPS expressly supported their attempts to terminate the agreement with FDA and the National Commissioner’s refusal to depose in the matter supports their proposition.

  5. The position assumed by SITA is regarded as reckless and deceptive in light of the public interest at stake.

  6. It is tragic that the National Commissioner, as Third Respondent in the proceedings, did not put the SAPS official position on record when presented with a chance.

  7. The Constitutional Court and the Supreme Court of Appeal have ruled against SITA’s attempts to subvert administrative rights of contracting parties procured by them. SITA’s CEO undertook to SCOPA on 29 November 2017 that SITA will abide by the Constitutional Court’s Gijima judgement issued only two weeks earlier, but has failed to do so to date.

  8. FDA have previously cited attempts by third parties, with known links to SITA officials, to solicit bribes, and take over or sabotage FDA business. This was reported to SITA on multiple occasions through official channels, without formal response or any action being taken by SITA.

REASONABLE DEMANDS TO NATIONAL COMMISSIONER

  1. FDA is compelled to demand that the National Commissioner of Police, as accounting officer, comply with the legal duties that stem from section 205 of the Constitution, which provides as follows:

“205.   Police service.—

(1)  The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.

(2)  National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

(3)  The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

  1. FDA therefore demands that the National Commissioner or a competent delegate must forthwith:

  • Meet with FDA urgently to engage meaningfully on these matters.

  • Ensure outstanding payments relating to operational requirements are made in time according to approved budgets.

  • Respond to serious correspondence and litigation proceedings directed at his office.

  • Follow sound legal advice based on accurate assessments of relevant facts.

PUBLIC AWARENESS AND CALL TO ACTION

  • FDA have insisted all along that due processes be followed at all times, but the efforts have fallen on deaf ears.

  • FDA believes that the public’s rights to dignity, as embodied in the proper functioning of the criminal justice system, could be severely impaired if the current state of affairs are tolerated and accepted.

  • FDA feel that the public should be made aware of the risks and consequences of essential services being suspended.

 

End.

 

Annexure A:     19 March 2018 Response to FDA from Minister of Police

Other documents relating to the above appear here

Enquiries may be sent to media@fdaafrica.com.