Criminal Law (Forensic Procedures) Amendment Bill (B2-2009): SAPS Responses & Deliberations
Date of Meeting:
6 Nov 2009
Chairperson:
Ms L Chikunga (ANC)
Summary:
The Committee was briefed by SAPS’s Head of Legislation on the written submissions received by the Committee on the Criminal Law (Forensic Procedures) Amendment Bill (the Bill). He outlined the South African Police Service’s (SAPS) response to some of the comments, but noted that he had not had time to consider them all. In response to issues raised by the Medical Rights Advocacy Network, he noted that SAPS disagreed that the use of “reasonable force” to take a body print from a suspect violated any rights, as this was not considered to be on the same footing as testimony. The State Law Advisor confirmed that this was merely re-stating the current law. In answer to questions from Members, it was explained that the Criminal Procedure Act contained definitions of samples. The comments from the Law Society of South Africa was concerned about police training in taking samples, but other issues raised were concerned with DNA sampling and body prints. The SAPS would be including sensitivity training in the taking of samples as part of its standard training. The Centre for Constitutional Rights (CCR) was concerned that ’speculative search’ was used in relation to database searches, and SAPS said that although this was not the case, it could understand the confusion and would recommend alternative terms. The CCR also suggested that fingerpricks and buccal swabbing should be regarded as intimate samples, and should be conducted by a medical professional. SAPS felt that this was unnecessary and would result in medical professionals having to be on call, and would also delay the taking of samples which was done on arrest. A Member suggested that medical professionals should do the samples, and since they were in any event on call for rape cases, this did not add an extra burden. Although other members indicated their agreement, they agreed to deal with fingerprinting now. South African Gunowners’ Association (SAGA) also raised the issue of ’speculative searches’, asked for a definition of the term ‘any court’ in the Bill, and suggested an amendment to the phrase “related to criminal…”. SAPS responded that the definition of ‘any court’ was unnecessary and the proposed amendment would be too limiting. The State Law Advisors noted that these terms were defined, but could be changed.
They asked whether there would be a need for additional training, what the costs might be, questioned in what circumstances body prints would be useful, and suggested that these should be directly linked to evidence. Members noted that they would prefer to have a written document before them to follow, and asked that both SAPS and Department of Justice produce written comments, and return in the following week to complete their comments on the submissions. SAPS was asked to concentrate on responding to the CCR submissions. It was also asked to provide a finalised implementation plan in the following week.
Minutes:
Criminal Law (Forensic Procedures) Amendment Bill (B2-2009): South African Police Service Responses and Deliberations
The Chairperson requested that the Committee agree that it needed to process the Criminal Law (Forensic Procedures) Amendment Bill (the Bill) up to the level where the content was correct and all that needed to be done was debate the implementation of the Bill.
She reminded the Committee that during the previous meeting, South African Police Services (SAPS) had presented a draft that needed further work, relating to the submissions made on the Bill. The Committee had decided to recall SAPS in the following week in order to brief the Committee on the final draft. The Committee was asked to focus on the topic of fingerprint identification and leave DNA-related issues for later meetings. SAPS had provided information that a task team did exist that was looking at the matters raised in the previous meeting, and were also looking at the review of the Criminal Justice System.
SAPS Responses to submissions received by the Committee
Dr Tertius Geldenhuys, Assistant Commissioner, Head of Legislation, Legal Services, SAPS, stated that he would be dealing with some of the written submissions received by the Committee. He asked the Committee to take cognisance of the fact that he had only received the document pack late last night and thus went through what he could before the meeting. He would therefore be limiting his comments to the submissions that he had managed to address, which were the print taking, and not DNA taking.
The Medical Rights Advocacy Network (MERAN) raised the issue of ethics related to the taking of fingerprints, as the Bill allowed for the use of ‘reasonable force’ in order to take a fingerprint or blood sample of a suspect. This clause violated the relationship between medical practitioners and their patients. From SAPS’s viewpoint, an individual had the right to refuse to testify if this would incriminate him or her, but he noted that bodily evidence could not be considered testimony and for this reason SAPS disagreed with MERAN.
Mr Johan de Lange, Director, Department of Justice and Constitutional Development (DOJ), added that the Committee would be looking at what was new in the Bill and that the above issue was a long-standing issue. He did not have any problems with it.
Mr Theo Hercules, State Law Advisor, Office of the State Law Advisor, stated that the Bill as drawn focused on retaining the existing legal principles, and was confirming a pre-existing position in law.
Ms D Schafer (DA) stated that the Bill was still referring to intimate and non-intimate samples, and asked why this was still in the Bill if it was to be dealing solely with fingerprints.
Dr Geldenhuys agreed that the reference was still in the Bill.
Mr De Lange stated that at present the Criminal Procedure Act (CPA) made provision for the taking of blood samples. Page 11 of the Bill, under subsection (2), contained a definition of ’samples’ . This definition allowed for SAPS officers to take non-intimate DNA samples, via buccal (cheek) swabbing and blood samples through a fingerprick.
Dr Geldenhuys stated that the Law Society of South Africa was concerned about police training in taking samples, but as this was primarily aimed at DNA sampling, it was irrelevant for the time being.
The Centre for Constitutional Rights (CCR) was concerned about the term ’speculative search’ being used in relation to database searches. SAPS understood that the term was creating confusion due to the fact that it was assumed that these searches were based on taking a chance. However, Dr Geldenhuys confirmed that this was not the case. If the term was not considered useable, then he suggested that it could be changed to ‘matching search’ or ‘comparative search’.
Mr M George (COPE) asked Dr Geldenhuys what the SAPS’s stance on the Law Society’s submission was.
Dr Geldenhuys replied that this submission related mainly to DNA sampling, but with regards to training of SAPS officials in relation to fingerprinting, there was no problem, as every SAPS member was already trained to do this.
The Chairperson stated that it seemed that the Law Society’s submission did not refer to fingerprints, but rather body prints.
Dr Geldenhuys took note of this and added that similar principles applied. He acknowledged that the Law Society took issue with the degree of sensitivity shown when taking prints, and stated that this part of SAPS’s training would be addressed.
Dr Geldenhuys noted that the CCR felt that fingerpricks and buccal swabbing for DNA samples should be regarded as intimate samples, and as such they should be conducted by a medical professional. However the consequences of this were that there would need to be 24-hour medical professionals on call. The samples were taken upon arrest and must be able to be done, even in rural areas. An evaluation of the finger-pricking device was being done, and he explained that the machine was a small box that pricked the finger and stored a drop of blood for analysis.
Ms P Mocumi (ANC) stated that the Committee was supposed to focusing on fingerprints, not DNA analysis.
Ms D Kohler-Barnard (DA) stated that only a medical professional could make sure that the blood sampling was done properly, and without risk of contamination and HIV risks. She believed that allowing SAPS officers to do this would be irresponsible. Doctors needed to be on 24 hour call anyway for rape victims, so she did not see that the availability argument was applicable.
Ms A Van Wyk (ANC) agreed, but stressed that the Committee should deal with fingerprinting now.
Ms G Schneemann (ANC) asked whether the Committee could get SAPS’s views on the submissions in writing, so that SAPS could give a finalised position and so that Members could refer to a document.
The Chairperson agreed.
Dr Geldenhuys replied that he would do so, but that it would require some time.
Dr Geldenhuys continued with his responses. The South African Gunowners’ Association (SAGA) also raised the issue of ’speculative searches’ and asked for a definition of the term ‘any court’ in the bill. SAGA suggested that the phrase ‘related to criminal ‘ should rather be amended to read ‘directly related to criminal ‘ in the Bill. SAPS felt that the definition of ‘any court’ was unnecessary and the proposed changes, by adding the word ‘directly’ would be too limiting.
Dr Geldenhuys noted that this was as far as he had managed to go with the submissions. He suggested that if the Committee could allow him an hour or so for further preparation, he would not be able to cover the rest of the submissions now. He left the decision on this to the Committee.
Mr Hercules added that he could assist with issues surrounding the term ’speculative search’ as the term was defined in the Bill, and from an interpretation point of view the use and definition of the term was very clear. The same applied to the term ‘related to criminal…’ However, if the Committee wished changes to be made, this could be done.
Mr Hercules added that the debate over intimate versus non-intimate sampling was up to the Committee.
Mr De Lange stated that he did not wish to waste the Committee’s time and would prefer to provide a formal written response that the Committee could then refer to.
Mr V Ndlovu (IFP) replied that that was exactly what Members needed.
Mr George agreed and added that in future if the presenters had not have time to go through the necessary documents, they should notify the Committee so that the Committee could take this into account and try to provide them with sufficient time to do so.
The Chairperson stated that the statements were in order and asked the Committee Researcher to take the Committee through a summary document she had prepared.
Ms Nadia Dollie, Researcher, Parliament of the Republic of South Africa, provided the Committee with a summary document relating to the issues raised in the written submissions, and the clause-specific references.
The Chairperson asked why non-intimate samples were taken.
Dr Geldenhuys replied that initially the differentiation between non-intimate and intimate samples was done in order to allow for SAPS officers to take the former and medical professionals to take the latter. Both were taken for DNA analysis.
The Chairperson indicated that in that case, the Committee did not need to worry about the issue at present.
Mr Hercules added that that before the splitting of the original Amendment Bill, the definition of intimate and non-intimate samples related to DNA samples. Due to the fact that all references relating to DNA samples and analysis had been removed from the current draft, these terms were retained on the basis that they were merely keeping to the status quo. They fitted into the broader scheme of the entire Bill.
Mr George asked how much the training of police officers would cost and what the duration would be.
Dr Geldenhuys replied that currently police officers were trained to take fingerprints as part of their existing training scheme and the only thing that needed to be addressed was sensitivity in terms of dealing with suspects. This refresher training would not entail any cost and would be addressed as part of continuing refresher training.
Ms Schafer raised concerns over the expansion of the definition of ‘body prints’ and added that this could lead to police abuse.
Dr Geldenhuys understood these concerns, but added that there were cases in which he had personally been involved, where the use of lip prints or knee prints were used to catch the perpetrator, due to unique scarring that could be seen on the print. Unwarranted printing of body parts was not condoned, but if the definition were to be limited, then access to evidence would be diminished.
Ms Schafer asked whether the Committee could include a clause that specified that the printing done needed to be related to the evidence print.
The Chairperson asked Dr Geldenhuys to pay close attention to the CCR submission and agreed that the Committee should receive formal documents from the SAPS and the DOJ by the following Wednesday.
Dr Geldenhuys asked whether the Committee would like to hear the SAPS comments on the Bill in the mean time.
The Chairperson welcomed this.
Ms Kohler-Barnard interjected that this would indeed be welcome and was needed, but it would be very difficult to follow verbal comments on the Bill, without a written document to refer to. She asked that a document with these comments be supplied and that the Committee go over this at the next meeting.
The Chairperson agreed that this was in order and stated that on Wednesday next week the SAPS would present its position on the Bill, as well as a finalised implementation plan.
The meeting was adjourned.
