Forensic Data Analysts (Pty) Ltd and Others v National Commissioner of the South African Police Service and Another (32643/2021) [2025] ZAGPPHC 1286 (9 December 2025)

Key Facts

Transaction Type

Issues

• The court determined that an oral agreement was concluded on 31 January 2020 between FDA and SAPS for the purchase of three computer systems (FPA, PCEM, VA-AMIS) for R560 million (VAT inclusive) plus R120 million for maintenance and support. The agreement was amended to include a fair value assessment process, which was finalized by National Treasury.
• SAPS claimed specific performance was impossible and ineffective. The court held this defense was not pleaded and was self-created due to SAPS' failure to adhere to agreed timelines and procurement processes. Specific performance was granted as the remedy, requiring SAPS to fulfill contractual obligations including payment and compliance with court orders.
• SAPS argued the agreement was invalid due to non-compliance with procurement requirements under the Constitution (s217), PPPFA (s2), PFMA (s68), and SITA Act. The court rejected this defense, finding no evidence that a tender process was required or that deviations from procurement norms were necessary. The agreement was not invalidated by procurement non-compliance.

Holdings

• The court determined that the remedy of specific performance must be granted, as SAPS failed to demonstrate impossibility of performance. The defense of impossibility was unpleaded and unsupported by evidence, and the court emphasized that self-created impossibility (due to SAPS' procedural failures) does not absolve the defendant from obligations. The plaintiffs were entitled to enforce the agreement, including payment of R560 million for intellectual property and R120 million for maintenance and support.
• The court found that an oral agreement was concluded on 31 January 2020 for the purchase of three computer systems from FDA for R460 million (VAT inclusive) and R120 million for two years of maintenance and support. The agreement was amended to include a fair value process, which determined the price at R560 million (VAT inclusive). The court rejected the defense that the agreement was invalid due to non-compliance with procurement processes, emphasizing the urgent necessity of the systems and the lack of credible evidence supporting procurement non-compliance as a valid defense.
• The court ruled that the South African Police Service (SAPS) repudiated the agreement by failing to complete the procurement process and comply with internal procedures, including not seeking necessary exemptions from SITA. This breach of contractual obligations rendered SAPS liable for specific performance of the agreement, as the defense of impossibility was not pleaded or proven, and the systems were deemed mission-critical with no viable alternatives.

Remedies

• The first and second defendants (SAPS and the Minister of Police) are directed to pay the plaintiffs' costs of suit jointly and severally, including the costs of two counsel on scale C on a party and party basis.
• The court granted specific performance of the oral contract, directing SAPS to record it in writing and sign it. If non-compliant within 10 days, plaintiffs' attorneys may finalize the written contract with the Sheriff's signature. SAPS must pay R644,000,000 (VAT inclusive) for intellectual property, R120,000,000 (VAT inclusive) for maintenance, and corresponding mora interest for both amounts. Payment is due upon signing the final written agreement.

Contract Value

Monetary Damages

Legal Principles

• SAPS was found to have acted in mala fides (bad faith) by repeatedly evading obligations, withdrawing agreements without justification, and failing to disclose critical information like the GTAC report. The court emphasized that the SAPS's conduct demonstrated a lack of genuine commitment to the agreement.
• The court applied the principle that valid agreements must be performed ('pacta sunt servanda'), finding the oral agreement between FDA and SAPS was valid and enforceable despite non-compliance with procurement processes. The agreement was not invalidated by procedural shortcomings as no implied term required compliance with procurement regulations.

Precedent Name

• Santos Professional Football Club (Pty) Ltd v Igesund and Another
• Ethewkini Municipality v Cooperativa Muratori and Cementisti - CMC di Ravenna Societa Cooperativa
• MEC for Health, Gauteng v 3P Consulting (Pty) Ltd
• Rex v Milne and Erleigh
• Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal
• SAAB Grintek Defence (Pty) Ltd and the South African Police Service and Others

Key Disputed Contract Clauses

• The oral agreement stipulated that payment would occur upon the last party signing the written contract. SAPS delayed finalizing the written agreement, leading to disputes over when payment was due. The court confirmed the written agreement was a procedural step, not a condition for the oral agreement's validity.
• The court analyzed the purchase price clause, which was initially agreed at R460 million (VAT inclusive) and later amended to include a fair value process. The fair value was determined at R560 million, leading to a dispute over the final amount. SAPS contested the valuation, but the court found the fair value process valid and the agreed price enforceable.
• SAPS argued the oral agreement was invalid due to non-compliance with procurement laws (Constitution s217, PPPFA s2, PFMA s68, SITA Act). The court rejected this defense, finding no implied term requiring procurement compliance. The agreement was not invalidated by procedural shortcomings, as SAPS failed to demonstrate such compliance was a condition.
• The court upheld the maintenance and support clause, which required SAPS to pay R120 million (VAT inclusive) for two years of service. SAPS's failure to fulfill this obligation was deemed a repudiation of the agreement, necessitating specific performance.
• The court ordered specific performance, requiring SAPS to pay the full amount for the intellectual property and maintenance. SAPS argued the agreement was impossible to perform due to budget constraints and procurement issues, but the court rejected this, finding the defense unpleaded and unsupported by evidence.

Cited Statute

• Constitution of the Republic of South Africa
• Prescribed Rate of Interest Act 55 of 1975
• Copyright Act 98 of 1978
• Public Finance Management Act 1 of 1992
• Preferential Procurement Policy Framework Act 5 of 2000
• State Information Technology Agency Act 88 of 1998

Judge Name

Passage Text

• [91] There was an oral agreement concluded on 31 January 2020 but amended to include a fair value process pertaining to price and the price was determined by MacRobert and accepted by both parties.
• [115] It was never put to Keating that performance of the oral agreement is impossible... This is fatal to SAPS raising impossibility as a defence to specific performance and specific performance must follow.
• [107] ...the common cause surrounding circumstances in this matter; mission critical systems that are interdicted from being used... necessitated an emergency procurement.

Damages / Relief Type

• Plaintiffs awarded costs of suit, including two counsel on scale C, against SAPS and the Minister of Police.
• Court ordered SAPS to fulfill the oral contract and pay R644 million for intellectual property and R120 million for maintenance and support.