The State Information Technology Agency (SITA) says it will be approaching the Constitutional Court in a matter involving the use of a critical IT system owned by embattled police supplier Forensic Data Analysts (FDA).

This, after the Supreme Court of Appeal (SCA) dismissed SITA's application for leave to appeal the Gauteng High Court's ruling which found that the police had been using the firearm permit system illegally, without paying FDA for more than a year.

The High Court interdicted SITA and the police from infringing FDA's copyright in the system.

The system is used to assist officials with tracking and monitoring firearms and, without it, SAPS would not be able to keep track of firearms in the country.

"SITA is appealing this judgment at the Constitutional Court, and therefore the operation of the judgment will be automatically suspended," SITA's head of legal service Vincent Mphaphuli told News24.

In April 2018, FDA switched off the firearm permit system (FPS), saying it would only switch it back on when the state – through the police and SITA – paid for it.

SITA and the police 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.

'A court cannot simply sit by'

However, in January this year, the High Court found that the police had used the software illegally, without paying for more than a year. The court interdicted the police and SITA from infringing on FDA's copyright of the computer program.

"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 had a perpetual licence to use the system and that 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 court ordered that, should the police elect to reinstate the old version of the software, the parties should agree on a market-related licence fee for the use of the system.

Corruption allegations

It also ordered the police to return all certified copies and notes or reproductions of the system to FDA. However, it suspended the order for 60 days, to allow the police to reinstate an alternative system.

But SITA's Mphaphuli told News24 that the High Court ruling had not ordered any payment for the use of the system.

"The order was on the use of the system and that the copyright of the system belongs to FDA."

Mphaphuli said SITA would not purchase goods or services from "persons or entities that are both under serious investigation by law enforcement agencies and have been negatively mentioned in the Zondo commission [of inquiry into state capture] testimony".

Former IPID boss Robert McBride implicated FDA director Keith Keating in allegations of corruption before the Zondo commission. Keating has denied the allegations.

Mphaphuli said SITA remained "steadfast" in its efforts to root out corruption and rebuild the agency and "condemns any forces attempting to prevent the organisation from fulfilling its mandate".

'Surprising'

Mphaphuli said SITA was continuing to fully cooperate with all investigations into contracts.

"SITA is also aware of a subsequent media statement issued by FDA and Mr Keating, containing a series of misinformation.

"The court matter related only to the FDA Firearm Permit System (FPS) dispute. Further, this court case was not related to the purchasing of the FPS system in any way, but rather related to ownership and copyright thereof.

"Furthermore, when purchasing any product or service from the market, SITA is committed to open and transparent procurement processes, and will not make a purchase unless a vendor has gone through these approved channels."

Keating had earlier told News24 that he welcomed the ruling of the SCA. He said it was "surprising" that SITA was continuing to appeal the High Court ruling.

"Now that the SCA has dismissed this, it is strange that SITA now wants to approach the Constitutional Court, when SAPS are actually the user of the FPS software and SITA only hosts the system on behalf of SAPS."

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