Acting national police commissioner Gen Puleng Dimpane is seeking the intervention of the Supreme Court of Appeal (SCA) regarding a R1.2bn debt, as costs escalate daily with interest in a R460m contract the police reneged on.
Following the SCA’s dismissal in May of the police’s bid for leave to appeal, Dimpane has now filed fresh papers for the court to reconsider its decision. She argues in her court papers that the high court in Pretoria usurped the procurement process by ordering the South African Police Service (SAPS) to both follow a procurement process and purchase the software at a predetermined price regardless of that process’s outcome.
“I am advised that exceptional circumstances exist, expressed in terms that a grave failure of justice will result if the order dismissing leave to appeal is not reconsidered and varied to one granting leave to the applicant to appeal to the SCA or the administration of justice may be brought into disrepute,” she said.
SAPS is currently incurring costs of R1m a week in interest over a R460m contract that it reneged on paying, meaning that since the high court judgment, it owes Forensic Data Analysts (FDA) more than R1bn.
The police’s failure to pay led to a controversial shutdown of a sophisticated biometrics system in 2019 by service provider FDA for the firearm permit system, which has allegedly forced police to revert to manual entry for booking firearms. This switch is linked to reports that police have subsequently lost more than 3,000 firearms and are now unable to effectively track and trace their weapons.
SAPS suffered a monumental defeat in the Pretoria high court in December when the now-suspended police national commissioner, Fannie Masemola, was directed to immediately sign the written contract (or face the sheriff of the court signing it in his place) and pay FDA the full, amended price: R644m for the intellectual property and R120m for maintenance and support, plus interest.
Regrettably, just like the affidavit of Gen Masemola, it contains factual inaccuracies without any reference to where the allegations are to be found in the record
— FDA director Keith Keating on the police’s application
However, despite the high court’s dismissing the bid without hearing the leave to appeal, Dimpane is digging in her heels.
“The dispute in this matter is whether the SAPS entered into a binding agreement to purchase three software systems from the respondents (FDA), namely the Firearm Permit System, the Property Control and Exhibit Management System and the VA-AMIS system, at a price of R644m (VAT inclusive), or whether the agreement was an in-principle agreement on price; an inchoate agreement, as it was dependent on a further patent agreement; and in any event it could not have been a binding agreement absent pre-compliance with the procurement regime of the SAPS,” said Dimpane.
Meanwhile, in its opposing papers, FDA director Keith Keating said the police’s application was flawed.
“But regrettably, just like the affidavit of Gen Masemola, it contains factual inaccuracies without any reference to where the allegations are to be found in the record. That is because those factual inaccuracies cannot be referenced. In addition, the entire approach by SAPS is flawed in both logic and fact. It presupposes that only one method of procurement is possible; namely that of a formal tender process inviting competitive bids,” Keating said.
Keating challenges the SAPS’ presupposition that a formal tender process inviting competitive bids was the only possible method of procurement.
“FDA was the sole supplier to SAPS of the computer programs for at least 15 years. FDA owns the copyright in those programs. When the delivery order was being executed at Sita and the programs were being removed, FDA was summoned urgently and taken by a blue-light police brigade to the Presidential Guest House, interrupting President Cyril Ramaphosa’s presidential lekgotla to prevent the crisis,” Keating said.
“This was undeniably an emergency procurement. The only need for the oral agreement to have been recorded in writing was to effect payment.”
He challenges the assertion that the letter from SAPS required a further agreement with a raft of conditions. He states there were no outstanding terms discussed at the meeting and that the oral agreement only needed to be reduced to writing to effect payment.
Sunday Times
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