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[2019] ZAGPPHC 6
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National Commissioner Of The South African Police Services and Another v Forensic Data Analysts (Pty) Ltd and Another (24570/2018) [2019] ZAGPPHC 6; 2019 BIP 215 (GP) (30 January 2019)

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case number: 24570/2018
Heard on: 28 November 2018
Date of
judgment: 30 January 2019
In
the matter between:
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICES

First Applicant
STATE
INFORMATION TECHNOLOGY
AGENCY
SOC LTD

Second Applicant
And
FORENSIC DATA ANALYSTS
(PTY) LTD

First Respondent
INVESTIGATIVE
SOFTWARE SOLUTIONS

Second Respondent
JUDGMENT
SWANEPOEL
AJ:
[1]
On 12 April 2018 Applicants launched an
urgent application seeking an order restoring the First Applicant's
("SAPS") possession
of, and access to
SAPS'
Firearm Permit System ("FPS
system"), the Property Control and Exhibit Management System
("PCEM"), and the Visual
Analysis Matrix Intelligence
Solution
(" VA-AMIS)".
[2]
Respondents are related companies, and
share a sole director, Mr. Keith Keating. First Respondent ("FDA")
brought a counter-application,
also to be heard urgently, for the
following relief:
2
.
1
That
Second Applicant {"SITA") be ordered to comply with its
contractual obligations in respect of the FPS system, in
accordance
with an agreement allegedly entered into between FDA and SITA during
November 2017, by making payment of an annual license
fee of R 9 144
736.85, and a monthly maintenance and support fee of R 931 409.37;
2.2
That SITA be ordered to comply with its
contractual obligations in respect of the PCEM system;
2.3
Alternatively to the above, that
Applicants be interdicted and restrained from infringing the FDA's
copyright in the FPS and the
PCEM systems, and that Applicants
deliver all copies of the systems to FDA;
2.4
Costs, including the costs of two
counsel.
[3]
SAPS' technicians re-instated its access
to the FPS system and the PCEM system on 9 April 2018. The VA-Amis
system was restored
on 14 May 2018. As a result, before the matter
could be heard, applicants withdrew their application. Respondents
persisted in
seeking the relief sought in the counter­
application, and on 25 May 2018 that application was heard by De Vos
J. The counter-application
was struck off for lack of urgency.
Notwithstanding that the counter-application was struck off, De Vos J
took the view that applicants'
conduct (which I will deal with fully
hereunder) was so reprehensible that they should bear the costs of
the application, and he
made an order accordingly.
[4]
On 21 May 2018 SAPS launched an
application for a review of the PCEM contract. No review application
has as yet been launched in
respect of the FPS systems contract. FDA
set the matter down for consideration of the counter-application on
21 August 2018. On
that date Tolmay J took the view that because of
the pending PCEM review application, and the complexity of the
matter, the application
should be postponed. Costs were reserved.
[5]
On 2 November 2018 SAPS and SITA brought
an interlocutory application seeking the following:
5.1
That an order be granted in terms of
rule 33 (4) of the Uniform Rules of Court, and that the following
issues be heard separately,
before FDA's entitlement to payment was
decided:
5.1.1
Whether
a contract was concluded between FDA and SITA during November 2017,
on the terms set out in Annexure "KK 14";
5.1.2
Whether
FDA is entitled to its alternative claim for interdictory relief.
[6]
The interlocutory application also
sought other relief, which ultimately became redundant, and is
irrelevant to these proceedings.
When the matter came before me, the
parties had agreed that the only issues to be determined were whether
FDA was the owner of
the copyright in the FPS system, and whether it
was entitled to interdictory relief. The issue of the validity of the
agreement
allegedly entered into in November 2017 is to be postponed
sine die.
I
will now deal with the background to the matter.
BACKGROUND
[7]
SITA is the organisation tasked with providing information technology
to State entities,
which includes SAPS. FDA, and Second Respondent
("ISS") have, for a number of years, provided various
services and computer
programs to SAPS.
[8]
Wien the Firearms Control Act, Act 60 of 2000 came into operation, it
imposed certain
obligations on SAPS in respect of the control of
firearms. FDA had developed a program which would allow SAPS to
fulfil those obligations,
and during 2005 FDA licensed a company
called Waymark to resell the program to SAPS. In a letter dated 26
September 2005, Waymark
wrote to SAPS stating that:
“
After
careful investigation into the market for a suitable product that
would assist WAYMARK in delivering to the SAPS requirements
set out
in letter referred to in paragraph 1.1 only one supplier and product
(Firearms Permit System-FPS) from Forensic Data Analysts
(FDA) made
the grade, as it currently addresses 99% of the requirement. The
other 1% is minor configuration changes, which can
be completed
within the timeframe."
[9]
The aforesaid correspondence culminated,
during September 2005, in an agreement between SAPS and Waymark ("the
Waymark agreement').
I will deal with the agreement later in this
judgment. The Waymark agreement allowed the SAPS access to the FPS
system which enabled
it to do the following:
9.1
Mark
all firearms with unique identification codes allowing a firearm to
be tracked every time it is logged into the system, and
to store the
ballistic characteristics of firearms;
9.2
Log and track firearms that are issued
to police officers;
9.3
Control
the issuing of temporary permits for the use of firearms by SAPS
members.
[10]      During the
period between 2005 and 2012 the FPS system was provided to SAPS by
Waymark in accordance
with the 2005 agreement. The Waymark agreement
was terminated by SAPS on 30 August 2012. In the letter of
termination SAPS firstly
requested proposals for the successful
completion of the FPS system (or firearms control system as it was
then referred to), secondly,
it recorded that Waymark had been unable
to finalize the development of the system in the eight preceding
years, and finally, it
urged Waymark to find a solution to the
defects in the program. It is important to note that at the
termination of the Waymark
agreement, SAPS was using version 1.0.0.47
of the FPS program.
[11]
During mid-2015 SAPS requested FDA to
submit a proposal in regard to the future use of the FPS system, and
on 24 June 2015, whilst
the proposal was being prepared, one Colonel
Nita Geldenhuys specifically asked FDA to provide a letter confirming
that FDA was
the holder of the intellectual property in the FPS
system. FDA did so. It is evident that at that stage SAPS was of the
view that
the intellectual property in the FPS system resided in FDA.
[12]      FDA's
proposal was accepted and the parties subsequently entered into an
oral agreement in terms
of which FDA supplied SAPS with the 1.0.0.50
version of the program, and with ongoing maintenance services. On 4
November 2015
SAPS issued a written order to FDA for services to be
rendered on a month-to-month basis. The services that FDA were to
provide
were referred to in the order as follows:
“
Support and maintenance, firearms
permit system SAPS month to month basis Annual enterprise software
licence fee for the firearm
permit system”
[13]
The
status
quo
continued until 23 August 2016
when SITA advised FDA that it was in the process of renewing the
"current enterprise software
licences and [for] the maintenance
and technical support of the Firearms Permit System for the South
African Police Service (SAPS),
which expires on 31 August 2016...”
[14]
The renewal process culminated, on 2
December 2016, in the signing of a written agreement between SITA and
FDA ("the 2016 agreement").
The agreement was valid for one
year.
[15]
The 2016 agreement terminated
automatically on 31 October 2017. During the course of 2017, further
negotiations were held with a
view to renewing the contract. On 31
October 2017 SITA addressed a letter to FDA notifying it that the
contract had been awarded
for a further three years. The first
paragraph reads:
“
This
serves as notification that your company has been awarded
SS
1691- 2017
the
enterprise software licence fee
and
support services for Firearm Permit System for South African Police
Service (SAPS as follows: .......”
(Court's emphasis)
[16]
The contract price is set out in the
letter, and is broken down into two components, one being the amount
paid for maintenance and
technical support, and the other the amount
paid for the annual enterprise licence fee. On 1 November 2017 SITA
sent a written
contract to FDA, with exactly the same terms as the
2016 contract. It contains the same clause 10 as the 2016 agreement.
FDA was
requested to sign the agreement, which it did, whereafter the
agreement was returned
to
SITA
for signing. SITA has not signed the agreement.
[17]
During late 2017 allegations (of unknown
origin) were made that the FDA contracts were the result of
corruption. Hearings of the
Standing Committee on Public Accounts
("Scopa") were held to investigate the allegations. Scopa
took the view that SAPS
should make no future payments in terms of
the agreement, and it recommended to SAPS to stop further payments.
Although SAPS was
not bound by Scopa's findings, the result was that
SAPS terminated all payments to FDA. Notwithstanding the fact that it
has not
paid FDA since December 2017, SAPS has continued to use the
FPS system to this day.
[18]
During April 2018 FDA took the view that
SAPS was in breach of its obligation to pay the licensing and
maintenance fees, and on
3 April 2018 FDA addressed a letter to SAPS
in which FDA advised that SAPS' access to the FPS would be suspended
at midnight on
4 April 2018.
[20]      On 6 April
2018 SAPS' attorneys wrote to FDA's attorneys. They recorded that FDA
had suspended
SAPS' access to the system, which they regarded as a
breach of FDA's obligations to SAPS. They also alleged that SAPS's
access
to the system was governed by the Waymark agreement which had
allegedly conferred a "permanent, non-expiring licence to use

the FPS and to make sufficient copies for backup purposes”
.
Significantly, there is no suggestion in the letter that SAPS held
copyright in the program by virtue of section 5 (2) of the Copyright

Act, Act 98 of 1978 ("the Act"). SAPS demanded that it be
given access to the software system by 16h30 on the same day.
It was
FDA's failure to restore access that resulted in the launching of the
urgent application, which, as I have stated, was withdrawn
when SAPS
managed to restore access to the systems.
[21]
It is within the above context that the parties' claim to copyright
should be considered.
COPYRIGHT
[22]      Both SAPS
and FDA claim copyright in the FPS system. In the alternative, SAPS
claims that it
has a perpetual non-expiring licence to use the FPS
system which, it alleges, is derived from the Waymark agreement.
Further in
the alternative, should it be found that SAPS does not
have copyright in the program, and that it does not have a perpetual
licence
to operate the system, then it is claimed that SAPS and SITA
are licenced to use the system as a result of the 2016 agreement.
[23]      In support
of its claim to have copyright over the FPS software, SAPS alleges
that the program
was developed with SAPS' involvement and under its
direction, with the purpose of meeting SAPS' specific requirements.
It claims
to have obtained copyright by virtue of the provisions of
section 5 (2), read with section 21 (2) of the Act.
NATURE
OF THE WORKS
[23]
A computer program is defined by section 1 of the Act as "a
set
of instructions fixed or stored in any manner and which, when used
directly or indirectly in a computer, directs its operation
to bring
about a result”.
Section 2 (1) (i) of the Act specifically
provides that computer programs are eligible for copyright, on
condition that the material
is original.
[24]      Although the
Act does not define the term "original", it was held in
Haupt t/a Soft Copy v Brewers Marketing Intelligence
[2006] ZASCA 40
;
2006 (4) SA
458
(SCA) at 472 G to 473 B
that a work is considered to be
original when it has not been copied from an existing source, and its
production was the result
of a substantial or at least not trivial
degree of skill, judgment or labour. In
Haupt
(supra),
the
Supreme Court of Appeal adopted the
dictum
in CCH
Canadian
Ltd v Law Society of Upper Canada
2004 SCC 13
;
[2004] 1 SCR 339
at para
[25]
:
"[A]n original work must be the product
of an authors exercise of skill and judgment. The exercise of skill
and judgment required
to produce the work must not be so trivial that
it could be characterised
as
a
purely mechanical exercise. While creative works will by definition
be "original" and covered by copyright, creativity
is not
required to make the work original.”
[25]
It is not in dispute that the FPS
system is eligible for copyright, that it is an original work, and
that FDA was the author thereof.
The dispute is who owns the
copyright.
OWNERSHIP
OF COPYRIGHT
[26]
Section 21 (1) (a) and (2) of the
Act provides as follows:
"21.Ownership
of copyright
(1)
(a)
Subject to the provisions of this section, the ownership of any
copyright conferred by section 3 or 4 on any work shall vest
in the
author or, in the case of a work
of
joint authorship, in the co-authors
of the work.......
(b)..... ..
(c).......
(d).......
(e).......
(2)
Ownership of any copyright
conferred by section 5 shall initially vest in the state or the
international organisation concerned,
and not in the author."
[27]
Section 5 (1) and (2) of the Act provides as follows:
"5.
Copyright in relation to the state and certain international
organisations
(1)
This Act shall bind the state.
(2)
Copyright shall be conferred by
this section on every work which is eligible for copyright and which
is made by or under the direction
or control of the state or such
international organizations
as
may
be prescribed.
(3)
...
...
....
.
[28]      In summary
therefore, the author of a work is generally also the holder of the
copyright therein.
The question is whether the FPS system was
authored by FDA under the direction or control of the State, in which
case, although
FDA might have been the author, copyright in the FPS
system would vest in the State.
HEARSAY
EVIDENCE
[29]
Before the evidence is analysed, it is perhaps important to first
deal with the FDA submission
that the deponent to the founding
affidavit does not have personal knowledge of the facts to which he
has deposed, and that his
evidence is of little or no value. The
deponent, Vincent Tendani Mphaphuli, states that he is the head of
legal services for SITA.
He alleges that he has personal knowledge of
the facts deposed to in his affidavit. His affidavit is supported by
a confirmatory
affidavit by Lieutenant General Mfazi, the Deputy
National Commissioner: Management Advisory of SAPS. It is unclear
what Mfazi's
post entails, and what personal knowledge he might have
regarding the history of the matter, specifically of the development
of
the FPS system.
[30]
FDA took issue with Mr. Mphapuli's
evidence, alleging that he did not have personal knowledge of the
facts of the matter. In reply
Mr. Mphaphuli states that he has
personal knowledge of the facts, by virtue of the fact that he has
been making submissions to
the Standing Committee on Public Accounts
("Scopa") since the latter part of 2017. Save for Mr.
Mphaphuli's averment
that he has knowledge of the facts by virtue of
his briefing of Scopa, there is no basis to find that he would have
knowledge of
the history of the matter, the computer programs and
their development, and the negotiations that have occurred between
the parties
over the last thirteen years.
[31]
It is so that in certain circumstances hearsay evidence will be
admitted. In
Hewan v Kourie
1993 (3) SA 233
(TPD) at 237
1-J,
however, it was held:
"Apart
from the lack of opportunity to test hearsay evidence through
cross-examination, there clearly are further reasons for
the
exclusion of such evidence both by common law and in terms of s 3
of
the Act. This much is illustrated by
the fact that, both before and since the enactment of s 3 (1),
hearsay evidence on affidavit
was and is inadmissible.”
[32]      Applicant
has not made out a case why the evidence of Mr. Mphapuli, which is in
my view hearsay
as regards the period before 2017, should be admitted
under any exception to the hearsay rule.
[33]      In contrast
to the evidence presented by SAPS and SITA, FDA has filed affidavits
by the persons
who were intimately involved with the development of
the computer program, being Keith Keating a director of FDA and ISS,
and Johan
Lamprecht, the senior developer of the FPS system. There is
no doubt that these two witnesses have first-hand knowledge not only

of the development of the computer system, but also of the contracts
and the correspondence between the parties. I take into consideration

the test in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
1984 (3) SA 620
(AO) at 634
I, that I have to consider the
facts alleged by applicant (respondents in this instance), which are
admitted by respondent (applicants
herein), together with the facts
alleged by respondent, and come to a determination based on those
facts. That, however, presupposes
that the evidence of the applicant
is within the deponent's knowledge in the first place. Although the
applicants' heads of argument
make the point that there is allegedly
a dispute of fact between the parties, Mr. Kennedy SC for applicants
did not persue that
submission, nor am I of the view that any real
dispute of fact exists. The evidence of Mr. Mphaphuli is of limited
value, and I
will evaluate the totality of evidence on that basis.
SAPS' COPYRIGHT
[34]
SAPS alleges that it has obtained copyright of the FPS program. Its
contention is based solely
upon the following statement in the
founding affidavit:
"Although the programming code of the
FPS was not written by
SAPS
itself,
it was developed with its involvement, and under its direction with
the purpose of meeting its specific requirements.
I
refer
in
this regard to the contents of pages 4 and 5 of Annexure FA
6,
identified below.”
(my
emphasis)
[35]      Annexure FA
6 is a submission by SAPS to Scopa dated 28 February 2018. There are
five statements
on pages 4 and 5 of Annexure FA 6 that are relevant
to the averment quoted above. They are the following:
33.1
"The Firearm
Control System (FCS) was procured following an open bidding process
through SITA on 30 September 2004 and awarded
to Waymark Info Tech
(PTY) (sic)."
33.2
"In the period of the dispute, no
payments were made to Waymark Info Tech (PTY) Ltd. However SAPS
continued to utilise the
FPS until it was notified that FDA owns the
Enterprise Software Licence."
33.3
"Subsequent to this information,
SAPS contracted FDA for a period of 12 months for maintenance and
support as well as an annual
enterprise software licence from October
2015 to October 2016."
33.4
"SITA established a contract with
FDA for a period of one year from October 2016 to 31 October 2017 for
maintenance and technical
support of FPS, which is accessed through
the SAPS/SITA Service level Agreement: Managed Application."
33.5
"A new request by
SAPS
dated 14 June 2017 was sent to SITA
for a three year maintenance and support and software licence
contract .
...."
[36]     It is questionable
how Mr. Mphaphuli would even know how the program had been developed
some thirteen
years before, as he purportedly only has knowledge of
the facts by virtue of having briefed Scopa since late 2017. That can
hardly
mean that he has knowledge of what happened in the period
before 2017. Furthermore, the submission to Scopa does not provide
support
for Mr. Mphaphuli's contention that the program was developed
under the direction of SAPS, but in fact contradicts that version.
If
SAPS held the copyright in the program by virtue of section 5 (2) of
the Act, it would not have had to enter into a licencing
agreement
with Waymark. Further support for the contention that FDA developed
the program is found in the Waymark letter of 26
September 2005 to
which I have referred above. That letter unambiguously states that,
as it stood, the program that FDA had developed
provided for 99% of
SAPS's needs, and the other 1% could be rectified.
[37]     In
Biotech
Laboratories (Pty) Ltd v Beecham Group PLC and another
2002 (4) SA
249
(SCA)
the Court considered whether a medicine package insert
had been made 'under the direction or control of the State'. It was
held
(at 261 H - 262 A) that the insert was not made under the
'direction' of the State as it had not initiated its making and had
not
prescribed the manner and means of its creation. As regards the
concept of “control” it was held (at 262 C) that it
was a
factual question, rather than a legal one, whether the state had
controlled the making of the insert. In approving of the
approach in
Ricketson's
(The Law of Intellectual Property: Copyright,
Designs and Confidential Information para 14.180), Harms JA held (at
263 A to C):
"...the production of the
work needs to be the principal object of direction and control, and
not merely an incidental or peripheral
consequence of some
generalised governmental licensing or monitoring power; the direction
and control should be directly and specifically
expressed with
respect to the work in question and should not be inferred from the
fact of some residual or unlimited government
veto.”
[38]      Whatever
level of direction and control there has to be in order for the State
to establish copyright
in terms of section 5 (2), in this case there
is no evidence that the state exercised any direction or control at
all over the
creation of the program. It is not sufficient to make a
bald allegation that the program was created at the direction and
under
the control of the State. Some facts supporting that averment
must be placed before the Court. I am of the view that it has not

been established that SAPS obtained copyright of the program by
virtue of it having been written under its direction or control.
The
evidence shows that in fact the program was written by FDA and
provided to SAPS in completed form. In the circumstances I find
that
FDA holds the copyright in the FPS system.
THE WAYMARK AGREEMENT
[39]      SAPS has
averred, in the alternative, that it obtained a perpetual licence by
virtue of the Waymark
agreement. It is alleged that SAPS paid a
once-off licence fee for the right to use the program. The averment
is based upon the
wording of clause 6 of the Waymark agreement.
Clause 6 reads as follows:
"6.  COMMENCEMENT AND TERMINATION
6.1
This
agreement will commence on the Date of Signature and will be in force
for a period of one (1) year calculated from the
Date
of Signature. Termination in
terms
of
this Clause by the Licensee does
not affect the Licensee right
to
use
the Firearms Permit System.
(sic)
6.2
This
agreement is renewable on an annual basis, with a written notice
period
of
(30)
thirty days.
6 3       Support
services are renewable yearly in advance starting from one calendar
year after
sign off
of
this
agreemen.t
6.4
Without
prejudice to any remedies which any of the Parties may otherwise have
in terms of this Agreement or at law, either of the
Parties shall be
entitled to terminate the agreement by written notice to the other in
the event that either of the Parties commits
a breach of this
Agreement and fails to remedy such breach within seven (14) days
(sic) after receiving written notice from the
other Party and claim
all damages that it might have suffered as a result of that breach.
6.5
The
termination of this Agreement, for whatever reason shall not affect
the rights of either of the Parties that may have accrued
before the
termination of the Agreement or which specifically or by their nature
survives the termination of the Agreement".
[40]
The above clause should be read within
the context of the rest of the agreement. Clause 1.1 provides that
FDA has granted Waymark
the right as licensor to licence and resell
the
"Firearms Permit System
(Software) in its totality to SAPS".
The
"licence"
is
defined as a non-transferable and non­ exclusive right granted to
SAPS to use the system and to make sufficient copies thereof
for
back-up purposes. The use of the licence is restricted by clause 4 of
the agreement, and
SAPS is
precluded
from:
40.1
Modifying the Firearm Permit System;
40.2
Decompiling, disassembling or reverse
engineering the system;
40.3
Disclosing the source code or
information provided in terms of the agreement.
[41]      If the
intention of the agreement was to confer a perpetual licence on SAPS,
the agreement would
no doubt have said so expressly, and would not
have imposed limitations on SAPS' use of the system.
[42]      On a
superficial level, clause 6.1, which allows for the continued use of
the system after termination,
is in conflict with clause 10, which
clearly reserves the rights to the system for the licensee.
[43]
The relevant portion of clause 10 of the Waymark agreement reads as
follows:
"10
INTELLECTUAL PROPERTY RIGHTS
10.1    All rights, title and
interest in all Intellectual Property relating to any products owned
by the parties,
their vendors and/or suppliers and the firearms
Permit
System
used
to implement such products shall at all times remain the
sole
property of such parties, their
vendors
or
suppliers.
10.2    ……
10.3
The licensee acknowledges that
any and all of the Intellectual Property rights used or embodied or
in connection with the Firearms
Permit
System
are and will remain the sole property
of the Licensor or its successor in title.
10.4
Licensor retains all title to the
Firearms Permit System, and all copies thereof and no title to the
Firearms Permit System, or
any intellectual property therein is not
transferable to the licensee."
(sic)
[44]      Mr. Kennedy
has argued that the Waymark agreement conferred a perpetual licence
on the applicant,
by virtue of the provisions of clause 6.1. However,
should clause 6 be read in context with the rest of the agreement, it
is clear
that this contention cannot stand.
[45]      The
agreement was to terminate automatically after one year. The words
contained in clause 6.1,
"termination in terms of this clause
by the licensee” ,
can only refer to termination by
SAPS
in accordance with clause 6.4, in terms of which the agreement
could be terminated should the licensor breach the terms of the
agreement.
In my view, such termination would allow SAPS to continue
to use the system after termination, but only for the remainder of
the
one-year period whereafter the agreement would have lapsed in any
event by effluxion of time. Any other interpretation would be

contrary to the provisions of clause 10, which reserved the
intellectual property rights for the person who was the holder
thereof
before the agreement was signed. The Waymark agreement is
devoid of any reference to a perpetual licence, and the allegation
that
it conferred a perpetual licence on SAPS to use the system, is
in my view contrary to the entire tenor of the agreement.
[46]      On 30 August
2012 SAPS wrote to Waymark and recorded that:
46.1
The agreement had come to an end on 31
March 2011·
46.2
SAPS wished to terminate the
relationship between it and Waymark;
46.3
SAPS would pay for services rendered
after expiry of the agreement.
[47]
The agreement was not terminated by SAPS as provided for in clause
6.1, read with clause 6.4,
due to a breach of the agreement. It
terminated by effluxion of time, and there is in my view no basis to
find that the licensing
agreement survived the termination of the
agreement. I therefore find that SAPS does not have a perpetual
licence to the FPS system
by virtue of the Waymark agreement.
[48]      I must point
out that FDA has conceded in its papers that SAPS might have obtained
a perpetual
licence to use the 1.0.0.47 version of the program, which
was the applicable version at date of termination of the Waymark
agreement.
FDA has tendered the reinstatement of that version, but it
points out that the 1.0.0.50 version which it reinstalled in 2015,
upon
the resumption of its relationship with SAPS, is a much
different version to the 1.0.0.47 version.
[49]
In argument Mr Michau SC, acting for respondents, made the submission
that the above concession
should not have been made, and I believe
that he might well be correct in that regard, as the Waymark
agreement did not grant a
perpetual licence to use the program after
termination thereof. However, in view of the order that I grant
hereunder, the tender
to restore the 1.0.0.47 version is important.
THE
2016 SITA/FDA AGREEMENT
[50]     For a period of
one year, from 2015 to 2016, FDA provided the Firearm Permit System
to SAPS on a month
to month basis. On 4 November 2015 SAPS produced a
written order which clearly differentiated between the monthly
maintenance and
support component on the one hand, and the annual
software licence fee for the FPS system on the other hand. On 14
October 2016
Keating wrote to SITA requesting feedback on a proposed
FPS system's contract between FDA and SITA. He pointed out that the
licence
fees for the use of the program had been due by 1 September
2016, and that the SAPS's continued use of the program was
unlicensed.
SITA merely replied that the matter had been escalated to
its Head of Procurement. SITA did not deny that licence fees were due

in respect of the use of the program.
[51]     On 2 December 2016
FDA and Sita entered into a written agreement ("the 2016
agreement") in
terms of which FDA undertook to provide
maintenance and technical support of the FPS system for SAPS for a
period of one year.
In terms of the 2016 agreement SITA would pay FDA
R 20 297 345.03 for the services. The "services· are
defined as the
services described in annexure C to the agreement.
Annexure C does not mention a licensing fee. The rest of the
agreement also
does not expressly refer to a licensing fee. Mr .
Kennedy has made the point that the 2016 agreement does not contain
any provision
for the licensing of the program, and on a superficial
reading of the agreement he is correct.
[52]     Clause 10 of the
2016 agreement reads as follows:
10
OWNERSHIP OF
INTELLECTUAL PROPERTY rights
(sic)
10.1
Any
Intellectual Property created and all Intellectual Property rights
acquired prior to the commencement of this agreement shall
vest
exclusively with the Party or Parties who created same. Any
Intellectual Property derived, produced or developed by the Service

Provider after the commencement date expressly and exclusively for
SITA shall vest in SITA.
10.2
SITA
acknowledges that all Intellectual Property rights used or embodied
in or in connection with the software are and will remain
the sole
property of the Service Provider and that SITA only has a licence to
use the said software.
10.3
The
parties agree that SITA may require that the source code of such
software be disclosed to it, should the Service Provider not
be in a
position to continue licensing or supporting the software as provided
for in this agreement. The Parties agree that the
source code in
respect of the software shall be in escrow in accordance with a
separate Source Code Escrow Agreement to be concluded
between the
Parties within agreed timelines.
10.4
The
Service Provider warrants that, to the best of its knowledge, the
software does not infringe upon or violate any patent or copyright
of
any third party and indemnifies SITA from any claim of any third
party for copyright or patent infringement.
10.5
Upon
termination or cancellation of any licence agreement relevant to the
software, SITA will, at the Service Provider's option,
destroy and in
writing certify destruction, or return to the Service Provider all
copies of the software, the licence for which
has been so terminated
or cancelled and any other related Intellectual Property in SITA's
possession including Intellectual Property
incorporated in other
software or writing.
10.6
Upon
termination of this Agreement, each party will promptly return to the
other party all documents, diskettes, drawings and any
other medium
containing the information of the other Party, as well as copies,
notes or reproductions thereof, and delete and remove
information
from its electronic databases and deliver to each Party a certificate
from an authorised representative of such party
that it has done so.
10.7
This
clause 10 shall survive termination or cancellation of this
Agreement; endure
a
further
period of two (2) years after the termination or cancellation."
[53]
FDA was the service provider referred to in the agreement, and clause
10.2 is consequently clear:
the intellectual property rights in and
to the software reside in FDA. That this was also the view of SITA is
borne out by its
lack of response to Keating's letter in which he
complained that the software was being used even though the licencing
period had
expired. The 2016 agreement might not have expressly
stated that SITA was granted a licence to use the program, but that
was in
my view clearly the intention of the parties. Upon the
agreement terminating by effluxion of time in November 2017, SITA and
SAPS
were under an obligation to stop using the FPS system, and to
return all copies of the program to FDA.
[54]
My view is further strengthened by the agreement that SITA proposed
in 2017 ("the 2017 agreement").
On 31 October 2017 SITA
wrote to FDA notifying it that FDA had been awarded the contract for
the
"enterprise software licence fee
and
support services for the Firearm Permit System for South African
Police Services (SAPS).....”(my emphasis)
[55]      The letter
contains a schedule of services and payments totalling R 69 499
999.81, which includes
the sum of R 9 144 736.85 per annum for the
"
Annual enterprise licence fee for Firearms Permit System".
The
contract price clearly included a licencing component, even though
the contract is silent about a licence. The 2017 agreement
is
identical to the 2016 agreement (save for the contract price), and it
contains the same clause 1o as quoted above, thus reserving
the
intellectual property rights for FDA.
[56]
Even though the 2017 agreement was never signed by SITA, the evidence
is in my view overwhelming
that when SITA drafted the proposed
agreement, SAPS and SITA were
ad idem
that the intellectual
property rights to the FPS system resided in FDA
[57]
Mr Kennedy argued that the 2016 agreement created an ongoing licence
in favour of SITA and SAPS,
enabling them to use the system. I
disagree. In my view the 2016 agreement in fact provides that SAPS
and SITA were only entitled
to the use of the system whilst they were
licenced to do so. Mr. Kennedy urged, that if I were to find his
contention to be incorrect,
to then find that the Waymark agreement,
alternatively the State's copyright allowed for the continued use of
the system. In my
view none of these submissions have any merit. Mr.
Kennedy's contention that neither SITA nor SAPS realized, before this
application
was launched, that the State held the copyright in the
program, alternatively, that it held a perpetual licence to use the
program,
also cannot stand.
[58]      Mr.
Kennedy's submission would mean that when SAPS originally entered
into the Waymark agreement,
it mistakenly believed that FDA was the
owner of the copyright. During negotiations in respect of three
subsequent agreements,
allegedly, neither SAPS nor SITA realized that
it was not necessary to obtain a licence for the use of the FDA
system. That would
imply that SAPS and SITA (the latter by definition
being responsible for the sourcing of information technology for the
State)
were so inept, that for some thirteen years they did not
realize that FDA was not the owner of the intellectual property in
the
FPS system and that copyright in fact vested in the State. This
contention is, in my view, so unlikely that it must be rejected.
[59]
It is common cause that the 2016 agreement terminated by effluxion of
time. On the applicants'
version, the 2017 agreement never came to
fruition as it was never signed by SITA. The provisions of clause
10.6 of the 2016 agreement
should therefore be applied, resulting in
SITA and SAPS having an obligation to return all documents,
diskettes, drawings and any
other medium containing the FPS program,
and all copies, notes or reproductions thereof to FDA. The continued
use of the FPS system
by SAPS without a licence is unlawful.
REQUIREMENTS
FOR A FINAL INTERDICT
[60]
In order to succeed with its application, FDA has to show:
60.1
The existence of a clear right;
60.2
An injury actually committed or
reasonably apprehended;
60.3
No adequate alternative remedy.
(See
Setlogelo v Setlogelo 1914 AD 221)
[61]      I have
already found that FDA is owner of the copyright, and it thus has a
clear right to prevent
the unauthorised use of the FPS system. The
second requirement for an interdict is that there has been an injury
actually committed
or one that is reasonably apprehended. FDA must
show that the ongoing infringement of its copyright constitutes an
injury that
justifies the granting of an interdict.
[62]
V
&
A Waterfront Properties (pty) Ltd and
another v Helicopter
&
Marine
Services (pty) Ltd and others (2004]
2 All SA 664
(C)
concerned
an application for an interdict, restraining the respondent from
using an allegedly unairworthy helicopter at premises
that respondent
was renting from applicant. The use of the helicopter in an
unairworthy state was contrary to the lease agreement
between the
parties. The High Court found that although the use of an allegedly
unairworthy helicopter was contrary to the terms
of the lease, the
applicant's concern that the helicopter might crash and cause harm
was not reasonable, and that applicant had
therefore not established
that it had a reasonable apprehension of actual harm.
[63]
The judgment of the High Court was overturned on appeal. The SCA in
V
&
A Waterfront Properties (Pty) Ltd and another v
Helicopter
&
Marine Services (pty) Ltd and others
[2006] 3
All SA 523
(SCA) at par. 20 to 22
(2006 (1) SA 252
(SCA) at 257 E to
258 A)
held as follows:
“
[20]
The
respondents contended nevertheless that breach did not constitute
"injury" for purposes
of
the second essential requirement for
final interdict relief which was expressed in the classic formulation
as "injury actually
committed
or
reasonably apprehended.” The
argument was that "injury" in that phrase had necessarily
to
entail
physical harm
or
pecuniary
loss. The appellants had consequently
to
show,
so
the contention proceeded, that the
helicopter was unairworthy and that its operation involved risk to
life and property.
[21]
The
argument is founded on neither authority nor principle. The leading
common-law writer on the subject of interdict relief used
the words
·eene gepleegde feitelijkheid to designate what is now in the
present context, loosely referred to as ·injury".
The
Dutch expression has been construed as something actually done which
is prejudicial to or interferes with, the applicants right.

Subsequent judicial pronouncements have variously used "infringement»
of right and "invasion
of
right». Indeed , the leading
case Setlogelo (supra) was itself one involving the invasion of the
right of possession. Of course
it is hard to imagine that a rights
invasion will not be effected
most
often by way of physical conduct but
to prove the necessary injury or harm it is enough to show that a
right has been invaded. The
fact that physical means were employed
or
physical consequences sustained is
incidental.
[22]
In
the present case therefore the threatened invasion of the first
appellant's rights under the lease constituted proof of reasonably

apprehended injury. It
was
not
necessary for the appellants'
success
to show that the helicopter was
unairworthy or what the chances were of
a
fatal or destructive crash.”
[64]
It is therefore sufficient for the
applicant in an interdict to show that the infringing behaviour
constitutes a breach of its rights
arising from an agreement. The
infringement of FDA's rights in this instance lies in the fact that,
contrary to
SITA's
contractual
obligation to return all copies of the program in accordance with
clause 10.6 of the 2016 contract, SITA and SAPS are
continuing to
make use of the FPS system despite the fact that the licence has
expired and that no payment is being made for the
use of the program.
FDA obviously does not allege that it is suffering physical harm. It
is suffering pecuniary harm, but more
importantly, its copyright and
its rights under the 2016 agreement, to have the program and all
related material returned to it,
are being infringed. In my view that
is sufficient to establish that applicant is suffering a continuing
injury, satisfying the
second leg of the test for an interdict.
[65]
The third leg of the enquiry is whether
FDA has an alternative remedy to an interdict. The Court will not, in
general, grant an
interdict when adequate redress can be obtained by
an award for damages.
(Fourie v Uys
1957 (2) SA 125
(c) at 128; Van der Merwe v Fourie
1946 TPD 389
at
392)
[66]
In
Reserve Bank of Rhodesia v
Rhodesia Railways 1966 (3) SA 656 (R) at 658 E the Court held as
follows:
"As Sir James ROSE-INNES, C.J., pointed
out in the leading case of Setlogelo v. Setlogelo, 1914 D. 221 at p.
227, it is one
of the essential prerequisites to the granting of an
interdict that "no similar protection by any other ordinary
remedy"
is open to the applicant. Nathan, in his well-known work
on Interdicts, states the position as follows, on p. 32-
'Lastly, as van der Linden says, there must
be no other ordinary remedy by which the applicant can be protected
with the same result.
We have seen the examples he gives (Chap. II,
above). The most familiar example, however, which comes to a lawyer's
mind is that
of damages. It is clear that if the applicant will have
adequate compensation by the award of damages, he will have another
ordinary
remedy. There are, however, two limitations upon this: (1)
The respondent is not entitled to say, 'I am going to keep the thing

or the shares you are trying to vindicate, and you should be
satisfied with damages, which I am well able to pay',-this the Court

will not allow; (2) nor will the Court, where property has been taken
or detained by the respondent, regard damages as a sufficient
remedy
where the respondent is clearly in bad financial circumstances,
'a
man of straw.'
Generally speaking, however, the fact that
the applicant has a remedy open to him by way of an action for
damages is sufficient
to bar an application for an interdict where
the interference or breach of right is capable of measurement in
money.'
The operative part of that quotation, in
fact the essence of it, really, is that there is an existing remedy
for the protection
of the applicant 'with the same result', as the
learned author says, and if that is the situation then, so it seems
to me, the
interdict should be refused."
[67]
The right that FDA seeks to protect is
its copyright to the FPS system. It may be so, as Mr. Kennedy argued,
that the interdict
was merely a method used to force SITA and SAPS
into paying for the use of the program. That however, does not change
the essence
of the relief being sought: the protection of FDA's
intellectual property. FDA's motive
is
not relevant: what is relevant is
whether the requirements for an interdict have been met.
[68]
Mr. Kennedy argued that FDA had the
alternative remedy to sue for damages, or for royalties by virtue of
section 24 (1A) of the
Act. Mr. Michau on the other hand argued that
the infringing conduct was ongoing. He submitted that should an
interdict not be
granted, a message would be broadcast all and sundry
that the State was entitled to use any intellectual property as it
pleased,
without paying for the use thereof. I agree with Mr. Michau
that this Court cannot be seen to condone the State's behaviour. It

is unacceptable to simply use another person's intellectual property
without effecting payment to the owner of the copyright.
[69]
In
Chapman's
Peak Hotel (Pty) Ltd and another v Jab and Annalene Restaurants CC
t/a O'Hagans (2001]
4 ALL SA 415
(C)
the
Applicant had sought an interdict to restrain a neighbouring
restaurant from using a timber deck that had been erected in conflict

with the zoning scheme rules, and without the requisite building
permission. The complaint was that the deck would result in an

escalation in the number of patrons using the premises, resulting in
an overspill into applicant's parking area. The respondent
argued
that an alternative remedy was available, i.e. that applicant could
appoint a guard to prevent respondent's customers from
parking in
applicant's parking. The High Court agreed with respondent and
refused the interdict.
[70]     On appeal, a full
Court held (at paragraph 27) that the refusal of an interdict
amounted to the condonation
by the court of criminal behaviour. The
Court consequently upheld the appeal.
In casu
the refusal of
an interdict would allow SITA and SAPS to continue to infringe on
FDA's copyright, which, although not a criminal
offence as in
Chapman's Peak Hotel (supra),
would still amount to allowing
an ongoing wrong.
[71]
In
Hotz
and others v University of Cape Town
[2016] 4 ALL SA 732
(SCA)
the
court dealt with an application to interdict a number of students
from entering onto the premises of the University of Cape
Town, and
from committing certain acts of violence. The University had
experienced a prolonged period of violence during which
students
committed various acts of civil disobedience. It was suggested that
the University had alternative remedies available
to it, for instance
by laying criminal charges against the students, by engaging in
dialogue with them, or by entering into mediation.
The Court held (at
paragraph 39) as follows:
"[39] This understanding of the nature
and purpose of an interdict is rooted in constitutional principles.
Section 34 of the
Constitution guarantees access to courts, or, where
appropriate, some other independent or impartial tribunal, for the
resolution
of all disputes capable of being resolved by the
application of law. The Constitutional Court has described the right
as being
of cardinal importance and "foundational
to
the stability of an orderly society"
as it "ensures the peaceful, regulated and institutionalised
mechanisms to resolve
disputes without resorting to self-help”.
It is "a bulwark against vigilantism, and chaos and anarchy .
Not only is
the Constitution the source of the university's right to
approach the court for assistance, in doing
so
it is exercising a right that the
Constitution guarantees. In granting an interdict the court is
enforcing the principle of legality
that obliges courts to give
effect to legally recognised rights. In the same way the principle of
legality precludes a court from
granting legal recognition and
enforcement to unlawful conduct. To do
so
is 'the very antithesis of the rule
of law'."
(footnotes omitted)
[72]
A party is entitled to protect its
rights. In my view, where the infringement is ongoing, a Court would
lean towards the granting
of an interdict. SAPS and SITA have been
using the FPS system unlawfully for more than a year. They clearly
have every intention
of continuing to do so, thereby prolonging their
unlawful conduct. To refuse an interdict, thereby allowing the
perpetration of
an ongoing wrong, is anathema to the principle of
legality. Even though FDA has a claim for damages (or royalties),
resulting from
the infringement of its copyright, such remedy would
not correct the wrong that is being perpetrated, namely the ongoing
infringement
of FDA's copyright.
COURT'S DISCRETION
[73]      Once all the
requirements for an interdict have been established, a Court still
has a discretion
whether to grant the interdict or not. However, it
was held in
Francis v Roberts
1973 (1) SA 507
(RA) at page 513 H
that it is a discretion that must be judicially exercised. What
should be weighed up is the prospective harm for the party seeking

the interdict, as opposed to the result for the interdicted party
should the relief be granted.
[74]      On the one
hand, the harm for FDA is that should the interdict not be granted,
its copyright
would still (continued to) be infringed and it would
not be paid licence fees. On the other hand chaos could result from
the granting
of an interdict.
SAPS
would not be able to fulfil
its obligations to keep track of firearms in the country. However,
the imperative that State entities
should not be seen to be acting in
a lawless fashion should be added to the equation. A Court cannot
simply sit by and allow the
State to continue acting in contravention
of the law, the upholding of which is the State's principal
obligation, and to flagrantly
invade the rights of a contracting
party that the State must respect and protect in terms of section 7
(2) of the Constitution.
The Court has an obligation to ensure that
the principle of legality is upheld, and to prevent a gratuitous
infringement of the
law.
[75]      Earlier in
this judgment I alluded to the judgment of De Vos J in the urgent
application. In
that application SAPS and SITA did not pursue their
application, the SAPS technicians having restored access to the
various programs.
FDA's application was struck off for lack of
urgency. Nevertheless, SAPS and SITA were ordered to pay the costs of
the application.
[76]
In his judgment, De Vos J pointed out
that although the Commissioner of Police corresponded with Scopa on
28 January 2018 regarding
the alleged invalidity of the 2017
agreement, payment for the FPS system had in fact already been
terminated in December 2017.
At that stage there were no facts to
show that FDA had been involved in any underhanded activities. In
fact, the evidence is that
applicants' legal representatives advised
applicants that they should continue to pay FDA's charges.
Nevertheless, SITA and SAPS
simply stopped paying for the FPS system.
De Vos J described their approach as "reprehensible", hence
the costs order.
I respectfully share his view of the applicants'
conduct.
[77]
I have had the opportunity of reading
the conditional review application, which was filed {unsigned) as
part of SITA and SAPS' application
for a separation of issues. I have
not dealt with the latter application, which has become moot.
However, in the conditional review
application SAPS and SITA try to
make out a case that the 2017 agreement, if it had in fact been
concluded, was unlawful as it
was allegedly not cost-effective as
required by section 217 (1) of the Constitution. In my view, the
review application is so devoid
of merit that it justifies the view
of De Vos J that the SAPS and SITA's conduct was utterly
reprehensible. As a result of the
view that he had taken, De Vos J
mulcted the applicant with costs.
[78]
I am well aware of the effect that the
granting of an interdict might have on the functioning of the SAPS's
firearms system. FDA
has tendered to re­ instate the 1.0.0.47
version of the FPS system on the SAPS's computer systems, against
payment of an annual
licence fee. This is the version that the SAPS
was using in 2012 when it terminated its relationship with Waymark.
This system,
although criticised by SAPS at the time, seems to have
functioned for some seven years before the Waymark agreement was
terminated.
In my view, should the aforesaid version be reinstated,
it would ameliorate the effect of the interdict on the FPS system.
[79]      The
reinstatement of the old system was not addressed in argument, and
therefore I asked the
parties to submit supplementary heads of
argument. The parties were specifically asked to address the
following:
"In the event that the Court
was
to find that respondents should be
granted the relief that they
seek:
1.
What
are the parties' submissions regarding the implementation of the
1.0.0.47 version ("the old version") of the FPS
system as
tendered by first respondent?
2.
What
technical difficulties may be encountered in the implementation of
the old version?
3.
What
timeframe do the parties envisage would be required for the
implementation of the old version?
4.
Do the parties have
any other submissions regarding first respondents tender to assist
with the re-implementation of the old version.
[80]      I am
grateful to counsel for submitting heads of argument at very short
notice. On behalf of
SAPS and SITA it was submitted that they should
not, by making their submissions in regard to the reinstatement of
the old version,
be regarded as having conceded that respondents are
entitled to any order. I accept that that is the case. They further
submit
that by making the tender, FDA is not seeking to enforce its
purported copyright in the old version of the program. I do not
understand
the tender in those terms. FDA has tendered the use of the
program against payment of an annual licence fee. FDA has not
abandoned
its copyright in the program. Applicants submit that they
anticipate significant negative operational effects as a result of
having
to use the 1.0.0.47 version, which difficulties will continue
until an alternative to the old system is procured or developed.
Applicants foresee that the implementation of the system would take
eight weeks. They request an opportunity to approach Court should

difficulties arise with the implementation of the system. Applicants
will only require an executable unlocked copy of the program
on a
disk or hard drive to implement the system, but will not require any
further assistance from FDA.
[81]      Mr Michau
submitted that FDA could not address possible technical and time
frame difficulties.
However, FDA stands by its tender as made in the
papers. FDA submits that the implementation can be attained within
five days.
It tenders its resources on a "time and material
basins to assist applicants in the reinstatement of the system, if
required.
I find this time estimate to be extremely optimistic given
the fact that the system is used countrywide. Finally, Mr. Michau
submits
that should an interdict be granted, it should take immediate
effect, and should applicants not comply timeously, a contempt
application
may be brought.
[82]
In my view applicants should be granted
an opportunity to reinstate the 1.0.0.47 version. I say this, mindful
of the serious harm
that may result should the FPS system not be
available at all. However, in view of my finding that neither SAPS
nor SITA have a
perpetual licence to use the system, FDA still has
copyright in the system, and should be compensated for the use
thereof. Therefore
I propose to grant applicants an opportunity to
elect whether to take up FDA's tender, against payment of a licence
fee that is
agreed between the parties.
[83]
In
United
Technical Equipment Co (Pty) Ltd v Johannesburg City
Council
1987 (4) SA 343
(T) at page 347 it was held that a Court does not
have a general discretion to defer the operation of an interdict.
Such a discretion
would only arise in exceptional circumstances. In
this matter there is a substantial public interest in the proper
working of the
FPS system. It is imperative that SAPS be allowed to
fulfil its obligation to mark firearms, and to track and monitor the
possession
thereof. In those circumstances I may, in my view,
exercise a discretion to defer the operation of the interdict in
order to allow
SAPS to reinstate an alternative system. I have no
doubt that it will take time for the SAPS to replace the present
system with
the 1.0.0.47 version. Therefore I propose to suspend the
interdict for a period of 60 days from date of judgment.
[84]
Finally, something should be said about
costs. In the counter-application respondents seek a costs order "on
the appropriate
scale". In their heads of argument respondents
make the submission that applicant's conduct justifies a costs order
on a punitive
scale. I take note of the fact that an attorney and
client costs order is not granted lightly. The following
dictum
is found in
Zodin
Investments (Pty) Ltd v Kemp
1983 (4) SA 438
(C) at page 486:
"Now, that attorney and client costs of
an appeal can be awarded admits of no doubt, see Herold v Sinclair
and Others
1954 (2) SA 531
(A); Ward v Sulzer
1973 (3) SA 701
(A).
Costs, whether party and party or attorney and client, are matters
for the discretion of the Court, to
be
exercised judicially upon a
consideration of all the facts; as between the parties it is a matter
of fairness to both sides. Attorney
and client costs may be awarded
when unscrupulous, dilatory or mendacious conduct on the part of an
unsuccessful litigant has burdened
his opponent with attorney and
client costs. Ethical considerations too may influence the exercise
of the Court's discretion to
award such costs. But the examples given
above as to when attorney and client costs may be awarded are
certainly not exhaustive
and such costs may indeed be awarded
whenever special considerations or special circumstances exist
justifying the grant of such
an order, see Pieter
Bezuidenhout-Larochelle Boerdery (Edms) Beperk en Andere v Wetorius
Boerdery (Edms) Bpk
1983 (2) SA 233
(0) at 237.”
[85]
Applicants stopped paying FDA for its
services for no discernable 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 respondents to
approach the Court for
relief. Despite De Vos J warning applicants
that their conduct was reprehensible, they have continued to put up a
frivolous defence.
In my view, the facts of the matter justify a
costs order on the attorney and client scale.
[86]     In the
circumstances I make the following order:
86.1
Applicants
are interdicted and restrained from infringing the copyright of the
first respondent in the computer program relating
to the Firearm
Permit System.
86.2
Applicants shall return to first
respondent all documents, diskettes, drawings and any other medium
containing information in respect
of the Firearms Permit System, as
well as copies, notes, adaptations or reproductions thereof.
86.3
Applicants shall deliver to FDA a
certificate by an authorized representative, certifying that all
copies of the 1.0.0.74 version,
and notes or reproductions thereof,
have been removed from their databases.
86.4
The orders in paragraphs 86.1, 86.2 and
86.3 above are suspended for a period of 60 days from date of this
judgment.
86.5
Applicants may elect to reinstate the
1.0.0.47 version of the Firearm Permit System ("the old
version"). Upon first respondent
being advised that applicants
have elected to reinstate the old version:
86.5.1
The
parties shall endeavour to agree on a market related licence fee for
the use of the system;
86.5.2
Upon
agreement being reached regarding the licence fee, FDA shall provide
an executable, unlocked copy of the old version to applicants.
86.6
In
the event that applicants elect to reinstate the old version of the
FPS system, either party may approach the Court for further

direction, on the same papers duly supplemented, should difficulties
arise during the implementation process.
86.7
Prayers
2 and 3 of the counter-application are postponed
sine
die.
86.8
Applicants
shall pay the respondents' costs on the attorney and client scale,
including the costs of 21 August 2018, which costs
shall include the
costs of two counsel.
Swanepoel
AJ
Acting
Judge of the High Court,
Gauteng
Division, Pretoria
Heard
on:

28 November 2018
Counsel for
Applicants:
Adv. P.M.
Kennedy SC
Adv. R.J.A Moultrie
Adv C.C Bester
Adv I Phalane
Attorneys
for Applicants:
Fasken (R. Bhoora)
Counsel
for Respondents:
Adv R. Michau SC
Adv
C.P. Wesley
Attorneys for
respondents:
Phillip du Toit Attorneys (Mr. P du Toit)
Date of
judgment:

30
January 2019