As much as FDA and ISS are pleased to note that the Supreme Court of Appeal has dismissed SITA’s unmandated petition for leave to appeal, it is anticipated that the judgement may not be responded to by SITA with the requisite duty of care for the impact on SAPS, the criminal justice system and public safety.
SAPS and SITA now have these basic options going forward:
- To pay FDA and ISS the amounts lawfully due in terms of existing contractual duties, and to buy the license rights to own the software systems
- To continue to use FDA and ISS software without making the lawfully due and outstanding payments, albeit SAPS and SITA would risk that the Commissioner of Police could be found to be in deliberate contempt of court in respect of the standing High Court Judgement handed down on 30 January 2019.
- To cease and desist from using FDA and ISS software and services, as ordered by the High Court.
- To make a final attempt to have SITA’s appeal heard by the Constitutional Court.
Obviously, payment of lawfully due and owing amounts is the only rational and acceptable course of conduct.
SAPS and SITA have never succeeded in any judicial review that the contracts with FDA and ISS are unlawful or unnecessary. That explains the continued use and reliance by the state on the proprietary software systems that are used for biometric logging of SAPS staff on duty, issuing of lawful firearm permits, property control and exhibit management, and crime intelligence in complex investigations.
These are not debatable end-user requirements and in fact, constitutes mission-critical services. Under the Critical Infrastructure Protection Bill, these systems are likely to be regarded as a critical infrastructure complex (‘national key points’ under the current legislation).
Sending the Commissioner of Police to jail for contempt of court is an untenable notion that can hardly be considered with any amount of seriousness. It must be noted that the Commissioner had withdrawn SAPS’ mandate to support SITA in the preceding appeals.
Raising Constitutional issues as grounds for appeal, as a last resort after being dismissed by the SCA, on the same original facts pleaded in affidavits, could imply that SITA will effectively have to seek that the Constitutional Court legitimize their purported right to arbitrarily dispossess proprietary intellectual property without compensation (or prescribed procedure); contrary to public policy and the public interest. Conversely, if the Constitutional Court is approached by SITA, FDA and ISS will consider the merits of a counter-application to seek the apex court’s appropriate intervention into the risks faced by SAPS, the criminal justice system and public safety.
In the final analysis, the effect of the SCA’s judgement is that it was once again confirmed that:
- Millions of Rands has been wasted by SITA and SAPS (the fiscus) in wasted legal fees, whilst having known all the while that the irrational decision to proceed with litigation is vexatious and that their prospects of success were dismal. Legal advice to SITA and SAPS as far back as 2017 has confirmed this position, but the advice was not accepted or acted on.
- SAPS and SITA have been acting unlawfully by arbitrarily withholding lawfully due payments to FDA and ISS, despite the continued use by SAPS of FDA and ISS proprietary and licenced software (without much-needed support and maintenance services).
- Neither IPID nor SCOPA had the right to order the suspension of the contractual payments based on administrative decisions.
- SITA and SAPS have, to date, persistently failed to meaningfully consult with ISS and FDA to reach a reasonable and workable agreement to ensure service continuity to SAPS. This is in spite of express permission given by SCOPA in October 2018 that SAPS and SITA must negotiate and settle these matters.
- SAPS and SITA’s apparent lack of transparency and dishonesty towards the SA public and Parliament, as executive oversight authority, in respect of critical Police functions suffering critical key performance impediments due to the use of unlicensed software and the withdrawal of support and maintenance services in the administration of the Police functions, crime scene and crime intelligence investigation abilities.
“Hopefully SITA will follow sound legal advice and act lawfully, after 18 months of gross disregard for public safety demands”, says FDA and ISS director Keith Keating.
- end.