The SA Police Service (SAPS) had used a service provider’s programme to run its firearm permit system illegally and without paying a cent for more than a year, potentially leading to chaos in the management of firearms, the High Court in Pretoria has found.
Acting Judge J Swanepoel described the police’s conduct of using Forensics Data Analysts’ (FDA) firearm permit system unlawfully and without paying for it as “reprehensible” and interdicted them from infringing FDA’s copyright in the system.
The court ordered the SAPS to return all copies and reproductions of the system to FDA, but suspended the order for 60 days, to allow the SAPS to reinstate an alternative system so that they could continue marking, tracking and monitoring firearms.
He ruled that if they chose to reinstate an older 2012 version of the system, they would have to reach an agreement with FDA about a market-related licence fee.
The SAPS stopped paying FDA in December 2017, after the standing committee on public accounts recommended it, following allegations of corruption, but Swanepoel said payment was stopped for “no discernible reason” while ignoring legal advice to continue paying.
Last year, the SAPS took FDA to court after it cut off their access, and accused the company of holding the country to ransom – but withdrew the application after its technicians reinstated access.
FDA, in turn, asked the court to stop the SAPS and the State Information Technology Agency (Sita) from infringing its copyright in two of the systems and force Sita to honour their contract and pay them a monthly maintenance fee of almost R1 million and an annual licence fee of over R9 million for the firearm permit system.
The SAPS opposed the application, claiming it had obtained the copyright as it was developed under its direction and had a perpetual licence to use it after paying a once-off licence fee.
Swanepoel rejected the SAPS version as “frivolous” and found FDA held the copyright, there was no perpetual licence and the SAPS’ continued use of the system without a licence after November 2017 was unlawful.
The SAPS argued it initially mistakenly believed that FDA was the owner of the copyright during negotiations and never realised it was not necessary to obtain a licence for the use of the system during negotiations – but Swanepoel said that would imply that the SAPS and Sita “were so inept that for some 13 years they did not realise that FDA was not the owner of the intellectual property and that copyright in fact vested in the state. This contention is so unlikely that it must be rejected.”
Swanepoel conceded that chaos could result and the SAPS would not be able to fulfil its obligations to keep track of firearms in SA if an immediate interdict was granted, but said the court could not simply allow the state to continue acting unlawfully and flagrantly invade the rights of a contracting party.
FDA CEO Keith Keating said the judgment was a “resounding victory” for the company, which itself had faced accusations of holding the country to ransom.
FDA said SAPS and Sita had repeatedly been made aware of the “potentially devastating consequences” of nonpayment, including that SAPS officials might be unable to lawfully possess or use firearms and that the firearms of the police might not be accounted for.