Criminal Law (Forensic Procedures) Bill 2013: Committee’s proposed amendments, SAPS implementation plan briefing
Date of Meeting:
4 Jun 2013
Chairperson:
Ms A Van Wyk (ANC)
Documents handed out:

Summary:

The Criminal Law (Forensic Procedures) Amendment Bill [B9-2013], was introduced by the Committee Researcher to the Committee, with members of the South African Police Service (SAPS) legal services also giving input on some of the clauses. The history was outlined, noting that recommendations were made by the Office for Criminal Justice System Reform relating to new legislation to cover fingerprinting as well as a forensic DNA database, and the Criminal Law (Forensics Procedures) Amendment Bill of 2009 was presented that covered both issues. However, there had been concerns raised at the public hearings, and by the Committee, on various matters, and it was decided to separate out the clauses dealing with fingerprinting, and to proceed to pass the legislation on this topic only, pending further investigations and thought on the DNA issues. That had been done, the Committee had then undertaken an overseas study tour to the United Kingdom and Canada, which resulted in new policy being finalised by the Minister of Police, which then formed the basis for the drafting of the current Bill of 2013, now  before the Committee. It was noted that some of the points raised when public hearings were held on the 2009 version of the Bill included concerns around privacy and human rights, the implementation strategy and capacity of SAPS, and possible privatisation of DNA analysis, as well as discussions on how the Bill of Rights affected the Bill, cost implications and oversight. All of these were relevant still.

The Committee Researcher took Members through the Bill in detail, outlining the content of each of the clauses, highlighting any differences in wording from the previous versions of 2009, suggesting matters that the Committee may wish to interrogate further, where there were inconsistencies or the need for clarity, and explaining how the requirements for the five indexes differed from each other. Members raised questions, which were addressed both by the Researcher and the SAPS officials. The definitions in clause 1 were explained, and the Chairperson suggested that perhaps a definition was needed for “designated area”. Members asked for clarity on some points. In respect of clause 2, it was suggested that procedures should be set out for cases where a person refused to give a sample, and noted that the taking of samples ran counter to people’s right to privacy and possibly also to the principle of innocent until proven guilty. Movement of samples from crime scene to laboratory, and how this would be done, would be included in the National Instructions, but Members flagged this issue for later discussion because of the security and integrity risks. Questions were asked about the admissibility of samples as contained in clause 5, from the Department of Justice and Constitutional Development. Clause 6 introduce an entire new Chapter 5B into the Bill and covered a host of areas. Members were told of the distinctions between the indexes, and the researcher said that the Committee would need to monitor the movement of information from arrestee index to offenders index. Members wanted further clarity on the situations around the volunteer and elimination index, from whom samples would be taken, and when they would be destroyed. It was noted that the 2009 Bill had said that once consent was given it could not be withdrawn, but that issue was not covered in the current version. The section on reporting now included international law enforcement agencies. The Researcher anticipated that there could be problems around quality management systems, and pointed out that this version of the Bill had excluded all references to privately-operated forensic science laboratories, although the DA and COPE Members thought that it would be useful to have them included. The Committee would need to seek clarity on destruction of samples, because section 15P seemed to be contradictory. The new section dealing with the National Instructions now stated that only the National Commissioner (and not also the Minister of Police) would be involved in the preparation of the National Instructions. They were to be tabled in Parliament, but it was not clear whether this was for approval or noting. Awareness programmes had to be developed by the National Commissioner in respect of the National Instructions, and training programmes were also required. It was highlighted that section 15V(2) was also slightly contradictory in relation to whether fines could be imposed in respect of offences relating to regulations. It was noted that the National Commissioner must, annually, prepare a report for the Minister of Police on the performance of the database and use of forensic DNA evidence in the investigation of crime, which must then be presented by the Minister to Parliament. No specific time frames were given for submission of reports, although the Chairperson indicated that Parliament could call for them at any time. In terms of section 15W(2) the Minister must, within five years after commencement of the section, submit a report to Parliament specifically on whether any legislative amendments were required to improve the functioning of the database and use of DNA evidence in combating crime. Full details of the new National Forensic DNA Oversight Board were outlined. Another presentation from SAPS outlined how the Bill would be implemented.

Members asked for clarity on how, from a practical perspective, the indexes would be used and would work, whether they spoke to each other, and noted that collection of samples by prison warders could pose a risk. They wondered about the expungement provisions and how the time periods were chosen, made suggestions for changes, and said more thought was also needed on retention of profiles.They stressed that funding would have to be seriously discussed since large amounts had been used already on the docket system, without much to show for it, and that funding from the Criminal Justice System could not be offered infinitely. Although the Committee was assured that stringent oversight was in place at SAPS, the Committee was still sceptical on the regulations, and said that more clarity was needed on the IT systems. It was recommended that SAPS must brief the Portfolio Committee on Correctional Services on the Bill.

Minutes:
Criminal Law (Forensic Procedures) Amendment Bill 2013: history and proposed Committee amendments
The Chairperson reminded Members of the background to the Criminal Law (Forensic Procedures) Amendment Bill (the Bill) which was also dubbed “the DNA Bill”. Following some recommendations made by the Office for Criminal Justice Reform (OCJSR), recommendations were made for new legislation that would deal with fingerprints as well as a forensic database. The Criminal Law (Forensic Procedures) Amendment Bill of 2009 was drafted and introduced to Parliament. The Portfolio Committee on Police, had, after consideration and after the public hearings, decided to confine itself to dealing with the fingerprinting aspects only, and to leave out the clauses relating to DNA pending further investigations, and then to draft another bill to concentrate on these. The Committee had been on a study tour to Canada and the United Kingdom, where Members had familiarised themselves with issues affecting the implementation of DNA legislation, and how DNA was used in other jurisdictions in combatting crime. Following the visit, the Minister of Police then finalised a policy on the establishment and administration of a National DNA database, which was presented to the Committee. This policy formed the basis for the drafting of the current Amendment Bill of 2013.

Several concerns had been raised, in respect of the DNA aspects that were then included, during the public hearings of 2009. These included issues around privacy and human rights, concerns about the implementation strategy and capacity of the South African Police Service (SAPS), and concerns about the outsourcing of DNA analysis or privatisation. There were points raised as to how the Bill of Rights would impact on the Bill, the cost implications and the body that was to exercise oversight. Those concerns should be borne in mind now, when looking at the current Bill.

Committee Researcher briefing
Clause 1
Ms Nicolette Van Zyl-Gous, Parliamentary Researcher, took the Committee through the individual clauses, describing the amendments and the content of clauses.  where there were proposed amendments to the Bill.

The Criminal Law (Forensic Procedures) Amendment Bill, 2009, had amended clauses 1 to 5 of the Criminal Procedure Act (CPA), No 51 of 1977, clause 6 of the SAPS Act No 86 of 1995, and had inserted a new Chapter 5B into that Act. It had amended clauses 7 and 8 of the Firearms Control Act, No 60 of 2000,  and clauses 9 and 10 of the Explosives Act, No 15 of 2000.

The current Bill, B9-2013, was, as the Chairperson had described, primarily concerned with inserting provisions into the CPA, to deal with collection, recordal, keeping of records and disposal of records around DNA.

Clause 1 set out the definitions. Ms van Zyl Gous highlighted certain definitions for the Committee. The definition of “authorised officer” meant a police officer commanding the division responsible for forensics services. An “authorised person” would be an official from SAPS or the Independent Police Investigative Directorate (IPID), who had undergone training on the Bill, or a medical practitioner, or a registered nurse (DCS). The definition excluded a crime scene examiner.

She then explained what was meant by bodily and buccal samples. Bodily samples were described as intimate, or non-intimate. Buccal samples were taken from inside a person’s mouth.

A “Comparative search” would relate to the comparing of samples or profiles taken from a person, to the profiles that were stored in the index. This search could be done only by an authorised person.

A “crime scene sample” was evidence retrieved from crime scene or any place where evidence was found, and may include evidence collected from the body of a person.

A “Forensic DNA Profile” was the results from the DNA analysis of bodily samples taken from a person or crime scene. This profile may only contain details of a person’s sex, but no information on the health, medical or mental condition or physical information of the person.

An “intimate sample” would be a blood sample, including a blood finger-prick, pubic hair or sample taken from the genitals or anal area.

A “non-intimate sample” would include buccal samples, nails or samples taken from under the nail. This Bill had changed the definition of an intimate sample, to include also blood from a finger-prick

Clause 1 also detailed the circumstances around the taking of samples, specifically clause 1(g) which required that samples be taken with consent, after obtaining a warrant, or when authorised under section 36E (dealt with under clause 2). A sample may be taken from someone arrested for another offence, or in a correctional or remand detention centre

Buccal samples may only be taken by an authorised person, in a designated area, in terms of the relevant National Instruction or Regulation. Intimate samples may only be taken by a medical practitioner or registered nurse. There was special provision for the taking of samples from children, in terms of section 36A(2) of the CPA, with special requirements around privacy, parental consent, age and other matters.

Consent was necessary if SAPS wished to take samples from a person or group of persons suspected of having committed a Schedule 1 offence, but who were not arrested. In the absence of consent, then a warrant must be obtained before the sample could be taken. Essentially, these would related to cases under investigation.

Samples must be taken, in terms of section 36D of the CPA, for persons who were accused of a Schedule 1 offence and arrested, those whose names appeared on the National Register of Sex Offenders, and those currently in correctional centres from whom no samples were taken when they were arrested. These samples must be taken by a registered nurse or doctor in the employ of the DCS. She emphasised that no consent was required, nor was it necessary to get a warrant for this category.

Samples may be taken in terms of section 36D(2), from persons accused of any other offence.

Ms D Kohler–Barnard (DA) asked if references to Correctional Services officers being included extended to all officers. She asked if the definition of intimate samples excluded women’s breasts, and, if samples could be taken, if there were special measures required.

Major General Philip Jacobs, Legal Services, SAPS, noted that intimate samples could only be taken by a doctor or nurse, and taking of intimate samples from women, including samples from a breast, may not be taken by a male.

Ms P Mocumi (ANC) asked if the Bill was referring to people who were already convicted and in the custody of Correctional Services.

Mr M George (COPE) asked if the “crime scene samples” wording meant that a person would have to be suspected of having committed a crime. He also asked what would happen in a crime scene where a person had victim’s blood on his or her own body or clothes.

Major-General Jacobs responded that the dead person was referred to as “the body”.

An ANC Member asked about prisoners currently serving a sentence whose samples had not being taken before imprisonment.

Clause 2
Ms van Zyl-Gous noted that clause 2 set out the powers in relation to samples. It was inserting new sections 36D and 36E into the CPA.

Section 36D(1) listed the categories of offences in respect of which a bodily sample must be taken – in other words, where no consent or warrant was required. These would be:
- where a person was arrested under a Schedule 1 Offence
- for a person released on bail, when accused of having committed a Schedule 1 offence, if that sample was not taken on arrest
- A person upon whom a summons had been served in terms of Schedule 1
- A person listed on the National Register of Sex Offenders
- Other categories that may be authorised by the Minister, by publication in the Government Gazette.

Section 36D(2) expanded the mandate further, to state that samples may be taken, at the discretion of the authorised person, with regard to all offences, in other words not limited to Schedule 1 offences. This was again not subject to consent or a warrant.

Section 36D (3) dealt with the forwarding of samples to the Forensic Laboratory, which must be done immediately.

Section 36D(4) dealt with the re-taking of samples if they were not suitable or were insufficient for DNA analysis.

Section 36D(5) allowed for the subjecting of profiles to a comparative search, and subsection (6) provide for a limitation on the use of the profiles. Profiles may only be used for detection of crime, investigation of a crime, conducting a prosecution, or identification of unidentified human remains or identification of a missing person.

Section 36E dealt with the taking of samples for investigative purposes. Buccal samples may be taken on “reasonable grounds” when a person was suspected of having committed a Schedule 1 offence (but not arrested) and where it was reasonably believed that the taking of a sample may eliminate a person as a suspect. She noted that consent or a warrant was needed.

Ms Kohler-Barnard noted that this clause was highly detailed but she did not see the procedure to follow if someone refused to give a sample. That was surely needed, and the powers to obtain a sample should be outlined. She also asked what would be the situation for giving a voluntary buccal sample.

Ms van Zyl Gous responded that the Minister of Health had determined the way a buccal sample could be taken. It could compromise the integrity of the sample if it was voluntary given.

An ANC Member asked after what time period a sample may be considered insufficient.

Mr George noted that this was an area of contention, as it tampered with people’s rights, and ran counter to the principle of innocent until proven guilty.

Mr V Ndlovu (IFP) asked for more clarity on the first paragraph on page 11. He also asked about the movement of samples from the crime scene to the laboratory.

General Jacobs noted that the National Instructions specified that samples must be collected for delivery and packaging to the laboratory within the required 28 days.

The Chairperson asked SAPS if it had considered using a courier service to collect the samples at police stations.

General Jacobs stated that it might do so. This was not a core function of SAPS, but it was awaiting the National Instructions.

Ms Kohler–Barnard stated that she understood this was not a core function, but cautioned that it would be necessary to set up stringent safeguards, because if a sample was intercepted, the security would then be compromised.

The Chairperson stated that the Committee would need to look at that issue and flag it for discussion. She noted that she had recently paid a visit to Athlone Police Station, situated in an area where drug trafficking was rife, and had discovered drugs which had lain in the police station since 2008, without having been sent to the police forensic laboratory for analysis.

Clauses 3, 4, and 5
Ms van Zyl-Gous outlined the changes effected to the CPA by these three clauses. Clause 3 was amending section 37 of the CPA, referring to determining of distinguishable features. It provided that  police officials may not take an intimate sample. She reminded the Committee that with the changed definitions, this would include a blood sample).

Clause 4 amended section 212 of the CPA, to provide for the collection of specimens. The amendment allowed for affidavits on issues around the collection of specimens (not only receipt, custody, packing, delivery or dispatch of these specimens).

Clause 5 provided for the results of the analysis of evidence taken from bodily samples of the accused to be admissible at proceedings.

She added that interestingly enough, this further provided for a sample to be regarded as admissible even if the sample was taken without consent, or not in accordance with the provisions of sections 36A, 36B, and 36C, 36D, 36E or 37.

The Chairperson asked for comment on this point, and particularly the impact of clause 5 on the prosecution and why there were provisions around inadmissibility.

Mr Johan de Lange, Principal State Law Adviser, Department of Justice and Constitutional Development, answered that admissibility considerations affected the right of an accused to have a fair trial. The provision was included so that the case would not be dismissed on a mere technicality.

The Chairperson asked if the Department of Justice and Constitutional Development was happy with the clause.

Mr de Lange responded that it was.

Clause 6
Ms van Zyl-Gous noted that clause 6 was introducing a new Chapter 5B into the SAPS Act of 1995. It was a comprehensive clause that provided for the establishment, administration and maintenance of the National Forensic DNA Database of South Africa. The definitions were the same as those in the CPA and were not repeated.

The purpose of the new chapter, and the DNA database, was to serve as a criminal investigative tool, in the fight against crime. It was intended also, where applicable, to identify those who might have been involved in the commission of offences, including offences before this Chapter came into operation. It would help to establish guilt or innocence of accused persons. It would assist with the identification of missing or unidentified human remains.

The new section 15G outlined the National Forensic DNA Database of South Africa (NFDD). This would be administered and maintained by the person in command of the Forensic Services Division of the SAPS. The database would consist of five indexes:
- The crime scene index
- An Arrestee Index
- An Offenders Index
- A Volunteer index
- An Elimination Index

New section 15G(4) stated that profiles taken before the commencement of this Act could still be used for comparative purposes.

The new section 14G(5) provided that indexes should not contain any information, derived from a sample, regarding the appearance of the person, or his or her medical, historical or behavioral information. She emphasised again that the only personal information related to gender.

The new section 15H noted that the crime scene index would contain forensic DNA profiles, derived from DNA analysis of bodily samples that were found and collected, including at a crime scene, at any place where an offence had occurred or was reasonably suspected to have been committed, on or in the body of the victim or suspect that was in contact with that person during the commission of an offence, or on anything worn or carried by the victim or suspect, at the time when an offence was, or was reasonably suspected of having been committed. Essentially the crime scene index would contain profiles of bodily substances at crime scenes, on victims and suspects.

The arrestee index was covered in the new section 15 I. This index was previously named the “reference index” but it would contain the same information, on forensic DNA profiles taken under the powers conferred by Chapter 3 of the CPA, or under the Firearms Control Act or Explosives Act.

Ms van Zyl Gous said it was important to avoid confusion between the arrestee index and the offenders index. The Arrestee Index covered situations when the profile of the person was not yet included in the Offenders’ Index, because that person had not yet been convicted of an offence.

The Offenders Index was covered in the new section 15J. It was previously known as the “convicted offenders index”. It would contain forensic DNA profiles that were taken in terms of the powers conferred by new section 36D of the CPA, which had already been entered into the arrestee index, but where the arrestee had since been convicted of an offence. It also covered profiles taken from any person convicted of an offence, before or after the coming into operation of the new legislation.

Ms van Zyl-Gous noted that one of the issues that the Committee would need to monitor was the movement of information from arrestee index to offenders index.

The Volunteer Index was set out in the new section 15K. It would contain forensic DNA profiles that had been derived from samples taken with informed consent, and thus related to persons covered in the new section 36E and other volunteers. If the volunteer was a child, the parent or guardian must give informed consent for that child. Any buccal sample must be taken by an authorised person, in a designated area.

The issue of “volunteering” was set out in detail. A volunteer must consent to the taking of the sample in writing, and after having been informed of the manner in which the sample would be taken, of the fact that the volunteer was under no obligation to give the sample, that the sample may produce evidence that could be used in court, and that the evidence derived from the sample may be used only for the detection of crime, investigations, identification of unidentified human remains or missing persons.

Ms van Zyl-Gous noted that the wording as originally contained in the 2009 Bill said that once consent was given, it could not be withdrawn. This 2013 Bill was silent on this issue, and the Committee may wish to seek clarity on that point.

The Elimination Index was outlined in the new section 15L. It would contain forensic DNA profiles from buccal samples, and would essentially allow for elimination of certain profiles from investigations. A police official or person attending to similar duties may be subjected to forensic elimination testing. The same would apply to a police official who handled, processed or examined samples, and to any person directly involved in the manufacturing of consumables, equipment, utensils or re-agents, or the servicing or calibration of equipment, or to any other person who entered a forensic laboratory.

The buccal samples for purposes of this new section must be taken, in terms of section 15L(2), in a designated area, whilst subsection (3) allowed for buccal samples to be re-taken. The new subsection (4) said that these DNA profiles may be used in a comparative search, for purposes related to the investigation of an offence.

The new section 15M noted that a report may be furnished on the result of a comparative search by a person whose functions under the new section 15N required that person to deal with foreign law enforcement agencies, or a person who, of necessity, supplied such reports in the performance of his or her functions. It may also be given for information required in terms of any law, or as supporting evidence in a court of law, or a competent authority may require a report for the institution or an investigation of a matter, including a preliminary investigation or inquest. It may also be furnished for purposes of a criminal defence, including furnishing it to an accused or, where the accused was a child, to his or her parent, guardian or legal representative, or to foreign and international law enforcement agencies.

The new section 15N provided that a forensic DNA profile received from a foreign state or recognised international organisation, tribunal or entity could be compared with those on the NFDD, for the purposes of detection of crime, the investigation of an offence, the conducting of a prosecution, the identification of a missing person, or identification of unidentified human remains. These results may be communicated to the requestor. There was provision also for DNA profiles (limited to those contained in the Crime Scene Index) to be communicated to a foreign state or an international organisation.

Ms van Zyl-Gous pointed out that the previous version of the Bill had excluded international law enforcement agencies, with provision only for foreign law enforcement agencies.

Section 15O dealt with compliance with the Quality Management System. This was now worded so that the “authorised officer” (not the National Commissioner as previously stated) must develop and recommend standards for quality management, including standards for testing the proficiency of forensic science laboratories and analysts who conducted forensic DNA analysis. All references to privately operated forensic science laboratories, which had appeared in the 2009 version of the Bill, were now removed. She pointed out that this had been one of the key concerns at the public hearings on the 2009 Bill, because it was felt that such a core business of the SAPS should not be outsourced. She further noted that quality assurance would be a challenge.

The new section 15P dealt with the retention storage, destruction and disposal of crime scene and buccal samples. Ms van Zyl-Gous drew attention to the distinction between a “sample” and a “profile”. Samples would have to be destroyed within three months after a profile was loaded. She noted that there was some confusion in the way the new section was worded. Firstly, it said that a sample not used to populate the DNA database must be destroyed within three months. However, later in the section, there was reference to the destroying of a sample only after a DNA profile was created and stored on the DNA database. Members would have to seek further clarity as to what was intended.

The new section 15Q provided for the retention , storage and expungement of forensic DNA profiles. Different considerations applied in respect of the different indexes. For the arrestee index, the profiles must be expunged within three years after the authorised officer was informed that a decision was taken not to prosecute, or was informed that the accused was acquitted at the trial, that a conviction was set aside on appeal. Expungement would also apply where the person had been discharged at a preparatory examination, where no criminal proceedings with regard to DNA were instituted, or where the prosecution had declined to prosecute.

In the case of the Volunteer Index, the victim’s profile must be expunged within three months after the case officer was informed of the outcome. If a volunteer had initially given consent to retain a profile, but then later requested that it be expunged, this must be done within three months of the latter request.

The Crime Scene Index profiles, as well as those in the Elimination Index, and the Offenders Index, were kept indefinitely. However, this was subject to exceptions in the case where a child was convicted, because the DNA profile must be expunged in line with section 87 of the Child Justice Act of 2008

The new Chapter 5B also covered offences and penalties, in the new section 15S. These provisions were aligned with those originally set out in the Bill in relation to fingerprinting. Certain contraventions would render the person liable, on conviction, to a sentence not exceeding 15 years imprisonment. The offences included unlawful use, or allowing the use of samples and DNA profiles for any purpose not related to the uses stipulated in the Act. Any person tampering with, or manipulating the process or samples would be guilty of an offence. In addition, any person falsely claiming that a sample or forensic DNA profile was derived or taken from a specific person, whilst knowing that it was taken from a different person, would also be guilty of an offence.

The new Chapter 5B also dealt with the National Instructions. The 2009 version of the Bill had provided that the National Commissioner must issue the National Instructions, in consultation with the Minister of Police. This was no longer a requirement in the 2013 version. The National Instructions would instead be issued by the National Commissioner alone.

The requirements for the National Instructions were set out in the Bill. These instructions must cover:
- The manner of securing a crime scene, for the purposes of collecting crime scene samples
- The manner for safely preserving and ensuring timely transfer of collected samples to the forensic science laboratories
- The manner in which to request access to information stored on the NFDD
- The manner in which DNA samples must be destroyed.

Subsections (2) and (3) of the section dealing with the National Instructions stated that they must be tabled in Parliament, within six months after commencement of this section. The National Commissioner (or his or her delegate) must develop awareness programmes in respect of the national instructions.

Training was covered in the new section 15U. This provided that the National Commissioner must ensure that adequate training programmes were developed to support the implementation and administration of the NFDD.

The new section 15V provided for the Minister to make regulations regarding any matter which was required or permitted by Chapter 5B to be prescribed. In addition, the Minister could make regulations on  any administrative or procedural matter necessary or expedient to give effect to the provisions of the new Chapter 5B.

Ms van Zyl-Gous highlighted that subsection 15V(2) provided that a regulation may prescribe a fine or a period of imprisonment for any failure to comply with the regulation. However, it was not clear why this subsection referred to the possibility of a fine, because section 15S expressly had removed the option of a fine for any contravention of the requirements set out in Chapter 5B.

She noted that the regulations must be “tabled before Parliament”. She recommended that this Committee should consider whether the regulations must be tabled “for approval” or merely notification.

The new section 15W dealt with Parliamentary oversight. In terms of section 15W(1), the National Commissioner must annually prepare a report for the Minister of Police on the performance of the NFDD and the use of forensic DNA evidence in the investigation of crime. This Report must then be tabled, by the Minister, to Parliament.

She noted that although the 2009 version of the Bill had set definite time frames for the reports, they were no longer stated.

Subsection 15W(2) noted that the Minister must submit a report to Parliament specifically on whether any legislative amendments were required to improve the functioning of the NFDD, and the use of forensic DNA evidence in the combatting of crime, within five years after the commencement of this section.

Ms van Zyl-Gous further pointed out that the 2009 Amendment Bill specifically made provision that the Minister, Parliament or an authorised Committee may request a report on the operations of the NFDD from the National Commissioner at any time. This was not included in the 2013 Bill.

The new section 15X referred to access to the NFDD and the security of the database. The National Commissioner must secure the integrity of information on the database, by taking appropriate, reasonable, technical and organisational measures to prevent the loss of, damage to, or unauthoried destruction of information on the database, and also to prevent the unlawful access to or processing of information on the database.

Four measures were now outlined, in subsection (2), that must be taken by the National Commissioner in pursuance of the obligations under section 15X. The National Commissioner must:
- identify all reasonable foreseeable internal and external risks to information on the database under his or her control;
- establish an maintain appropriate safeguards against the risks identified ;
- regularly verify that the safeguards are effectively implemented
- ensure that the safeguards were continually updated in response to new risks or deficiencies in previously implemented safeguards.

The new Chapter also dealt with the setting up and functioning of a new National Forensic Oversight Board, in the new section 15Y. This Board would be appointed solely by the Minister of Police, who also appointed the Chairperson of the Board.

The National Forensic Oversight Board consisted of representatives from the Departments of Health, Home Affairs, Justice and Constitutional Development and Correctional Services, as well as from the Civilian Secretariat for Police (who would be the Secretary of Police or his or her representative), and two representatives appointed by relevant non–governmental organisations to represent the NGO sector collectively, if, in the opinion of the Chairperson, these representatives could substantially contribute to the proceedings of the Board. There was also provision that the National Forensic Oversight Board could formally invite the South African Human Rights Commission (SAHRC), provided it was willing and approved of the request, to be part of the Board.

The purpose of the National Forensic Oversight Board was to:
- monitor the implementation of legislation relating to sample collections,
- make proposals on the governance and integrity of the NFDD
- monitor and make proposals on the conducting and performance of the forensic DNA analysis and the NFDD
- monitor compliance with ethical and privacy issues
- propose minimum quality standards to be implemented and maintained in performing forensic DNA analysis and operations of the NFDD
- promote public accountability and transparency with respect to performing forensic DNA analysis, and operations of the NFDD
- advise the Minister on reviewing legislation, regulations, policy and protocols, concerning matters in the new Chapter 5B and Chapter 3 of the CPA.

Ms van Zyl-Gous dealt with the financial implications of the Bill. The proceedings of the National Forensic DNA Oversight Board would be funded from the budget of the Minister. The Minister may, in consultation with the Minister of Finance, determine the remuneration, alternatively the payment of expenses, for members of the National Forensics Oversight Board who were not appointed in terms of the SAPS Act , Public Service Act and Correctional Services Act.

Ms Kohler–Barnard asked what would be included in the Volunteer and Elimination Indexes

Major-General Jacobs replied that the Crime Scene Index would only have what had been obtained from a specific crime scene.

The Chairperson asked how the Offender Index would work, from a practical point of view. She asked if it would be possible to obtain samples from someone who was already in prison for the commission of another crime.

Ms Kohler–Barnard asked if the databases spoke to one another, and what were the links between them.

Mr Ndlovu asked if a person who had committed a crime could then be linked to other outstanding crimes on the system.

Major-General Jacobs responded that this was only a SAPS database. In relation to the crime scene, he noted that if a sample was taken, it was possible that, through the links, a person could be connected to another crime that he or she committed years later.

The Chairperson foresaw a problem with collection of samples by warders in prisons, pointing out that some of them had also been involved in crime themselves. She said that the computer system searching cases would be able to establish common linkages for crimes committed by one person.

General Lesese, Legislative drafter, SAPS, noted that thanks to DNA profiling, it had been possible to achieve multiple convictions and sentences. She said that profiles correlated from samples taken allowed for comparisons, which then would link perpetrators to other crimes.

Ms A Molebatsi (ANC) asked about use of DNA for identical twins.

General Lesese stated that DNA was not the sole, or ultimate testing used in the detection of crime and the importance of other evidence, such as fingerprinting, must not be forgotten.

Mr Ndlovu asked what would happen if a person was arrested for a crime and it was then found that he was linked to other crimes.

The Chairperson replied that the person could be charged for all the other crimes committed.

The Chairperson requested clarity on the Volunteer Index.

Major-General Jacobs stated that a volunteer could withdraw permission if s/he later wished to do so.

The Chairperson wanted to know what a “designated area” was.

General Jacobs stated that this must be an area that was specifically set aside, for reasons of privacy.

The Chairperson stated that perhaps it should have been defined.

Ms Kohler–Barnard asked, in respect of the Elimination Index, if any person visiting the laboratory, meant guests, visitors or people doing deliveries.

The Chairperson asked about the process followed when an investigating officer resigned from the case. She wondered if his or her profile would also be removed from the Elimination index. She noted that some SAPS officers were dishonest, and raised her concerns that the process seemed to have many risks.

General Lesese confirmed that any person who entered a DNA laboratory, including children and international visitors, were subject to an elimination sample being taken from them. In relation to the police officers, she noted that ideally the profiles should be retained whilst officers were on the case. There was no provision in the Bill for those who had left the Force.

The Chairperson felt that the Committee needed to apply their minds to this issue. The Chairperson also noted that since 2009, the SAPS capacity had increased.

Ms Kohler–Barnard was concerned with the complete removal of any reference to private laboratories. During an oversight visit overseas, the Committee had noted and seen private laboratories being utilised. She believed that the utilisation of private laboratories should be left as an option for the future, as it was useful.

Mr George agreed that there was a need for this.

The Chairperson sought clarity on the section which stated that the sample must be destroyed, but also said that it must be retained, and whether these samples were needed to populate the profile.

Major-General Jacobs noted that it was very important, because the retention of profiles had implications for identification of missing persons and unidentified bodies. He said that perhaps a re-think was needed on the use of the profile, after it was loaded on the database.

Mr George asked why there was such a long period, of three years, for expungement for the arrestee index.

Mr D Stubbe (DA) suggested that it should be a longer period, perhaps five years, and Mr Ndlovu countered that perhaps it should be indefinitely retained.

Major-General Jacobs stated that this period was set because of capacity issues in the laboratories. The Police Forensic Laboratory received thousands of samples and it required a lot of work and time to expunge and destroy the profiles, so he felt three years was reasonable.

He added that it was clear, from the Bill, that the profiles on the offender index would be kept indefinitely.

The Chairperson stated the Committee would need to consider and discuss the Arrestee Index, the Offender Index, and the situation where a person asked, themselves, for expungement.

Mr George noted that he disagreed with Major-General Jacobs on the issue of capacity.

The Chairperson was concerned about the issue of awareness programmes and felt strongly about regulations on National instructions.

Major-General Jacobs noted that there was a very strict oversight committee for these issues. He stated that training would be given, and improved upon.

The Chairperson stated that the Committee should not, for the moment, discuss the issue of regulations until such time as the Committee had received more clarity on the regulations.

Major-General Jacobs noted that there was provision for a fine in relation to disregarding regulations.

The Chairperson countered that this Committee had very little patience with SAPS on such issues, and Major-General Jacobs would be required to submit further substantive evidence.

The Chairperson made a general comment, in relation to approval of regulations, that Parliament generally had a period of thirty days to apply its mind to regulations. She noted that Parliament did also have the right to call for reports at any time.

Mr George asked why certain functions had been removed, between the 2009 and 2013 versions of the Bill.

Major-General Jacobs again assured the Committee that very strict oversight would be applied, and only the Commissioner had the ability to get reports.

The Chairperson asked the Committee to consider if they wanted to call for an annual report on DNA database.

Ms Mocumi asked about the composition of the National Oversight Board, and whether the Department of International Relations and Cooperation would be included on the Board.

The Chairperson added that perhaps the word “Ethics” had to come somewhere into the title of the Board. She noted also that there was no provision for making compensation in respect of the Bill.

Major-General Jacobs stated that during investigations, Interpol usually negotiated with SAPS. In relation to matters requiring mutual legal assistance, the Department of International Relations and Cooperation could act as a conduit.

The Chairperson asked the Department of Justice and Constitutional Development also to consider, and come up with any comment or suggestions on the Bill.

The Chairperson noted that Members had no questions in relation to the amendments to the Firearms Control Act.

Implementation of the Bill: SAPS briefing
General Lesese, in conclusion, briefly outlined how the DNA Bill would be implemented. She discussed the policy framework, national instructions and standard operating procedures, the forensic awareness programmes and training, the collecting of DNA buccal samples, and submission for analysis. She also discussed the establishment of the Forensic DNA Database of South Africa. She lastly highlighted the establishment of an oversight body and the construction of a new laboratory facility in Gating 9see attached presentation for more details).

She noted that the presentation covered questions of capacity, but did not cover the financial implications for SAPS.

Discussion
Mr George thanked the General, but expressed his concern that the Bill was not yet costed.

Mr Ndlovu noted that the vetting side was very important, and asked if the SAPS was undertaking vetting.

The Chairperson said that the Committee had always recognised that this would not be a cheap exercise. She had two major issues to raise. Firstly, the Committee needed more clarity on the IT solutions and needed to know where they were going. SAPS relied on Criminal Justice System (CJS) funds for the existing technology. MPs, as legislators, were very concerned that even after twelve years of attempting to upgrade the systems, it still could take up to three years to establish whether an accused was guilty of the crime. The systems had to start talking to each other. The docket system had cost over R500 000, but there was still nothing much to show for that spending. She also urged that there was a need to re-look at the funding of these projects. The CJS funding was not going to carry on indefinitely. Before this Committee attended to the passing of any legislation, it would need to have an updated implementation plan that dealt with the realties.

The Chairperson also urged that SAPS needed to brief the Portfolio Committee on Correctional Services about the impact of this Bill.

The Chairperson requested a list of schedule one offences, prior to the meeting in the following week.

The Chairperson finally remarked that public hearings would be advertised. The deadline dates needed to be set for the following Friday. The hearings would commence on a Tuesday and she warned Members that the Thursday meeting would go on until 19:00.

The meeting was adjourned.

Copyright © Parliamentary Monitoring Group, South Africa

Criminal Law (Forensic Procedures) Amendment “DNA” Bill: Minister’s briefing,

Criminal Law (Forensic Procedures) Amendment Bill: Minister’s briefing
The Minister of Police, Mr Nathi Mthethwa, attended the meeting to brief the Committee on the Criminal Law (Forensic Procedures) Amendment Bill, commonly known as “the DNA Bill”. He noted that the process behind this Bill had been long, but that the legislation would be a very important part of the fight against crime, particularly violent crime.

The Bill essentially dealt with the setting up, within the South African Police Service (SAPS) of a DNA database for the analysis of detection and investigation of crime, and for general criminality. He said it was a technical Bill, but the process was helped by the intimate involvement of the Committee and the Task Force which had studied practices worldwide, particularly those in Canada and the United Kingdom of England and Wales (UK).

The Minister noted the particular issue of human rights, which imposed restrictions on the use of a DNA database, and said that abuse of the DNA database would be regarded as a serious and unlawful offence. The Bill also applied to the protection of children. It cut across different departments and legislation; for instance, there were clauses that dealt with the Criminal Procedure Act (CPA), which was implemented by the Department of Justice and Constitutional Development, and the Department of Correctional Services would be involved in the taking of buccal of persons convicted, particularly in relation to Schedule One. Possible abuse would be countered through processes of oversight and internal mechanisms.

The Minister reiterated the significance of the Bill in the fight against crime, and highlighted the importance of the implementation plan for the Bill and the personnel who would be implementing the Bill on a technical level. 800 posts had been filled in this area, particularly in crime scene management and forensic analysis. He noted that he was satisfied with the Bill, apart from his disappointment at the delayed process.

Ms Jenni Irish-Qhobosheane, Secretary of Police, introduced the technical delegation present. She highlighted that there were three important issues to highlight. The first was the SAPS capacity to implement the Bill, and she noted that the Bill was accompanied by an implementation plan. Secondly there should be protection of processes around the Bill. Thirdly, she noted that extensive consultation was carried out on the Bill, specifically with the Departments of Health (DOH) and Correctional Services (DCS).

Criminal Law (Forensic Procedures) Amendment Bill: Departmental briefing
Commissioner Philip Jacobs, Legal Adviser, SAPS,  began by discussing the background to the Bill. A Criminal Law (Forensic Procedures) Amendment Bill of 2009 had been introduced in Parliament, following the recommendations of the Office for Criminal Justice Reform (OCJR). That Bill had dealt with issues related to enhancing the use of fingerprints and interdepartmental cooperation to link different fingerprint databases for crime investigation purposes. That Bill had furthermore provided for the establishment of a DNA database to enhance criminal investigations.

When the 2009 Bill was considered by the Committee, it had decided to split it, and to concentrate on, and pass legislation on, only the fingerprinting aspects, leaving aside the DNA clauses until more comparative research into the DNA issues had been conducted. The “DNA portions” were then referred back to the Minister of Police, so that these could be aligned with the research to be undertaken by the Portfolio Committee, and with any of its findings and recommendations. The Committee undertook a study tour abroad, as referred to by the Minister, accompanied by officials of the SAPS and members of the Office of the Chief State Law Adviser. A policy document was prepared and presented to Parliament in 2012. This was aligned to common practices overseas. The present Bill was then drafted and taken through the Development Committee. The Bill was approved and presented to Cabinet, for approval for introduction to Parliament. The Minister of Justice and Constitutional Development had agreed that the Minister of Police could introduce the Bill.

Drafting of the Bill was done by SAPS Forensic Services, SAPS Legal Services and the Civilian Secretariat of Police, working jointly as a single committee. Consultations on the Bill included the Department of Health, Department of Correctional Services, Department of Justice and Constitutional Development, the National Prosecuting Authority, the Justice, Crime Prevention and Security (JCPS) Director- Generals’ (DGs) Cluster, and the Development Committee, as well as civil society.

Comm Jacobs outlined that this Bill established a DNA database within the SAPS, and recognised the role a DNA database could play in fighting crime. DNA samples would be analysed and profiles stored, for the purposes of detection of crime and the investigation of cases. The Bill also paid attention to the necessary limitations and protections required in terms of human rights.

He noted that the DNA database would consist of five indices:
- A Crime Scene Index of samples taken at a crime scene
- An Arrestees Index
- A Volunteers Index
- A Convicted Offender Index
- An Elimination Index

Comm Jacobs said the Bill allowed for DNA buccal samples to be taken by police officials trained in the taking of samples, in line with prescripts of the Minister of Health. Non-intimate samples included buccal samples taken from under a nail of a person, which may only be taken by police officials with the prescribed training. Intimate samples, excluding buccal samples, may be taken only by a registered medical doctor or a registered nurse. The Bill provided for the expungement of records in matters where the prosecution decided not to prosecute, or where a person had been found not guilty of an offence. The Bill provided for the reporting to Parliament on the DNA database. It placed responsibilities on the National Commissioner to ensure that generally accepted information, security practices and procedures were followed. The Bill further introduced a National Forensic Oversight Board comprising of both governmental and nongovernmental role players. The Board was also tasked with advising the Minister on reviewing legislation, regulations, policy and protocols relating to the use of DNA.

An implementation plan for the Bill had been developed, in tandem with the Bill. The implementation plan had been costed and presented to the JCPS Development Committee. The Departments of Correctional Services and Health were specifically consulted on the plan.

Discussion
Mr V Ndlovu (IFP) sought elaboration on the indices outlined and training of crime officials.

Maj-Gen A Sheze, SAPS, again outlined the five indices covered in the Bill, and then amplified on them. The Crime Scene Index of samples taken at a crime scene would include any samples obtained from the crime scene itself, as collected by the Investigating Officer. The Arrestees Index made provisions for arrests, after which a sample would be taken from the arrestee. The Volunteers Index contained samples requested or samples volunteered. The Convicted Offender Index would be used if a conviction had been obtained, after the matter had been referred to the court and a finding of guilty was reached, and then samples would be retained under this category. The Elimination Index particularly pertained to the people working with samples, who would be asked to volunteer their samples, in order to prevent contamination.

Ms Irish-Qhobosheane added that samples given by parents of missing children would also fall under the volunteer sample index.

Lieut-Gen Johannes Phahlane, Divisional Commissioner, Forensic Services, SAPS, answered the question on training and employment. It was noted that 710 people were first employed in the 2010/11 financial year, 750 were employed in the 2011/12 financial year, 800 in 2012/13 and an additional 710 people were to be employed in this financial year. As the Minister had said, crime scene management in particular would be capacitated, but plans were also in place to increase the capacity of the forensic laboratories, by employing more forensic analysts. Another key area in which there was extra capacity was to ensure quality management for the purpose of compliance and standardisation. He said there was a requirement to have the broader SAPS members trained, in conjunction with the Department of Health, on the Bill, and the training programme would roll out once finalisation was complete. SAPS had also embarked on an awareness programme, to sensitise people to the implications, before the legislation was finally put in place.

Mr M George (COPE) questioned the consultation processes carried out, and asked if the Department consulted people with interest in these matters outside of government structures.

Ms Irish-Qhobosheane said a Memorandum of Understanding (MOU) was signed with the Department of Health, looking to the universities, which meant only trained officials could take samples. Extensive consultation was carried out outside government, through the Policy and Research Reference Group, for groups with particular interests, such as with the DNA Project.

Mr Ndlovu was worried that the SAPS still had not signed the MOU with the Department of Health and asked how long it would take to do so. He felt the entire process hinged on this and failure to do so could discredit the Department.

Ms Irish-Qhobosheane said the Department was at the final stages of signing the MOU, but there was already an agreement in place that the Department of Health would do the training.

The Chairperson asked whether the Board would play the part of an ethics committee.

Ms Irish-Qhobosheane said the Board would definitely need to look at ethics, as it was an oversight body, as well as setting standards, and it would need to be given the necessary capacity.

Mr George sought discussion on the implementation plan.

Ms M Molebatsi (ANC) questioned the arrestee and crime scene index samples, and said she was concerned about duplication between these two indices.

Gen Sheze noted that the crime scene and arrestee indices were two independent categories unrelated to one another. She explained that the role of the crime scene examiner was to pick up evidence from the crime scene, but not to collect a sample from an individual, as would be the case under the arrestee index. She said there may be a merge between the samples from these two indices.

The Chairperson told the Members that in the following week, a clause by clause evaluation from the Committee Researchers was needed, and there would be a discussion on the implementation plan before engaging with the legislation.

The Chairperson asked if SAPS had considered the use of a warrant to obtain samples, and asked how the officers who were to take the samples would be selected or determined, and what type of police officer this could be. She said the laboratories might be ready, but the collection of samples on the ground might not be ready.

Comm Jacobs spoke about warrants, noting that it was impossible to oblige police officers to obtain warrants for all Schedule One arrests. There was a clear distinction between the types of samples to be taken. For instance, blood samples could only be taken by a doctor or registered nurse. Under certain Acts, like the Firearm Control Act, a warrant also has to be obtained. He felt it was important to look at the practical implications of getting a warrant, and the issue of rights between a buccal sample and a fingerprint.

Mr G Lekgetho (ANC) appreciated the detailed information regarding appointments but he did not hear the date for the 710 appointees in crime scene management. He asked about the requirements for these appointments

Gen Phahlane said that the 710 appointments were made during this financial year but in total, 2 200 people had been appointed to capacitate the SAPS in this area, since the process began in the 2010/11 financial year. These appointments were done in phases, which made the appointment process a little lengthier, but this was necessary for full compliance. He said there was no contradiction and the same process had been spoken to throughout this presentation.

Ms Irish-Qhobosheane said the issue of training could be dealt with in the following week.

The Chairperson thought an indication could be given now.

Gen Sheze explained that the training of taking of samples involved also the members of the Independent Police Investigative Directorate (IPID) and those outside SAPS. Training must be done by the Department of Health, as it was part of the legislative mandate of that Department to deal with the medical practitioners. Within SAPS, the trained officers would go from the commander’s level through to cases and the Visible Policing (VISPOL) environment, while the crime scene managers would be the last to be trained. The MOU outlined the training programme of the different groups, and the processes were almost finalised, which would complete it. At the next session, this issue could be raised again, for an indication of further progress.

Ms D Kohler-Barnard (DA) sought clarity on the fairly contentious issue of familial searching, to find very similar DNA. She asked whether the process was allowed, as it seemed to be in the legislation, and whether it was likely to cause difficulties during the public hearings.

Comm Jacobs responded that familial searches related to evidence available in a certain case, but where the court could be approached to obtain a warrant to carry out a DNA search. For cases based on speculation, SAPS would have to make use of the mechanisms available in the Criminal Procedures Act.

Gen Sheze expanded that familial searches were searches conducted to try to source the originator of a sample, to see who could be associated with a certain profile, for example, if a sample was a common occurrence in a particular group or family. The family would then be approached to provide a sample. She noted there were a number of human rights concerns with this process all over the world, but it was accepted practice in the UK. The concerns particularly related to invasion of privacy. She said the Bill did not talk to familial searches, given the dynamics of the Constitution and Human Rights issues under Section 21.

The Chairperson highlighted that next week’s meeting would deal with the clause by clause evaluation from the researchers, as well as the implementation plan. The week thereafter would focus on the public hearings. She highlighted the processes of Parliament. Before hearings, the Bill needed to be advertised for a certain amount of time, and the Committee was now at that stage. The closing date for public comments was 31 May 2013. The comments would be summarised, and those who were invited to make public oral submissions would be invited to present them; at this stage three days had been set aside, although it may be longer. The Committee was then due to jointly meet with the Portfolio Committee on Justice and Constitutional Development, to go through the first part of the Bill, and then the rest of the Bill would be discussed by this Committee alone. She reminded the Committee Secretary to meet with her counterpart from the Justice Committee to secure dates. The Committee Section was beginning compiling files of the relevant documents for Members already.

Last night we received a copy of a submission that is on its way to Parliament in support of the DNA Bill. It was written by a passionate young woman with an enormous amount of courage and tenacity. As South Africans, we are so desensitised to the unacceptably high level of violence perpetrated against us, our women and children. This letter breaks those barriers and makes us touch that coal face of brutality, that we do not have to accept. The DNA Bill has the potential to fight back against that brutality, and hearing it from a rape survivor, makes it all the more real. If you haven’t already made a stand against violent crime in South Africa by supporting this DNA Bill, perhaps after reading this letter, you will be prepared to do so:

‘My name is Jes Foord and I recently celebrated 5 years of being a rape survivor.

In March 2008, I was brutally raped.  It was daytime and I was with my father walking our dogs in a public park near my home in Hillcrest, KwaZulu-Natal.  My father was beaten and tied up and forced at gunpoint to watch as four men raped me, his little girl.  Both our lives were changed forever.   At that point, I had a choice to make, I could let it destroy me, or I could become a survivor.   I chose the latter and    I chose to speak up.  I reported it and for the next year jumped over hurdle after hurdle, enduring physically, mentally, emotionally – every step necessary to see justice done with very little protection in place for my rights as a victim.

From the outset I would like to say that I firmly believe that the DNA Bill that I am writing to the Portfolio Committee of Police about today does not infringe on the rights of the accused and instead will help to ensure there are less victims who will have to endure what I did.

As a rape survivor, I know how vitally important the Criminal Law (Forensics Procedures) Amendment Bill is to our nation and I applaud its introduction into Parliament.  I am here to beg you to pass it into law as a matter of extreme urgency in the fight against rape in our country.  1 out of 3 women will be raped before they turn 21 and 50% of them will be under 10.  You must be as horrified at these statistics as the rest of the world.  The passage of this Bill is one step toward changing those statistics.

If this Bill becomes law, it will help identify serial offenders at an early stage of the investigation, helping to prevent rape before it happens.  Because it links perpetrators to their crimes through an objective and reliable science it will increase conviction rates.   But it also gathers evidence that can prove a suspect did not do the crime and thus protects the innocent from wrongful convictions.

The DNA Database in South Africa as it currently exists is not an effective tool for regulating the use and retention of DNA profiles on a National DNA Database. The new Bill ensures that the future of the current DNA Database is expanded and managed in a regulated and appropriate manner designed to protect the rights of accused and those convicted while at the same time protecting the public and improving the chances of justice for victims.

As a survivor, an important part of my healing process, of recovery, was seeing that the men that raped me were sent to prison.  The system, society, validated that what was done to me was wrong.  With a dismal 14% conviction rate in South Africa, most victims never get that sense of empowerment for seeing justice done.  This Bill can help change that.

I also want to stress the importance of certain provisions of the Bill.  The Bill makes it mandatory to take DNA samples from suspects at the time of arrest and I believe that it should extend to all arrestees and not just those arrested for schedule one offences.

It is also crucial that all convicted offenders DNA samples are taken retrospectively and before their release from prison.  This will ensure that an offender is not released from prison when in fact his DNA is a match for unsolved rape cases that are out there.  50% of child rapists are repeat offenders.  Catching them before they are released is a hugely effective tool of prevention.  If you could do something to stop a child from being raped, wouldn’t you do it?

I further support the provision that trained Police Officers be allowed to take non intimate DNA samples from arrestees and convicted offenders. This is done by a specially trained police officer and is quickly and easily obtained. The “invasiveness” of the methods of obtaining DNA samples (rubbing a swab around the person’s mouth, or obtaining a drop or two of blood from a pin-prick to a finger), are no different to having a breathalyser taken on suspicion of drunken driving.  This can in no way be viewed as invasive when compared to the invasiveness of the procedures taken on a rape victim during an investigation.

The samples taken from me would never be described as non intimate or non invasive.  I was probed and swabbed vaginally and anally.  They pulled samples of my hair out and scraped my ears and eyes.  Pictures and diagrams of my body were viewed by police, lawyers, the court.  I endured all this as the innocent victim.  Surely a swab in the mouth of an accused rapist cannot be seen as invasive.

The DNA Bill adequately retains an appropriate balance between the rights of individuals and the respect for privacy. The new Bill has been carefully drafted to ensure that the DNA Database is maximized to its full potential in combating and preventing crime in South Africa, while still ensuring that it has minimal impact on the civil rights of its citizens.

The Bill calls for an Oversight Committee to be formed which will monitor the implementation of this legislation. The Oversight Committee will monitor the collection and storage of samples, the performance of the Forensic Science Laboratory and the National Forensic DNA Database. The Board will ensure compliance with ethical and privacy issues.  Over time the Oversight Committee should establish the effectiveness of the legislation in the fight against crime and review the Bill in order to maximise the efficiency of the use of the Database as a criminal intelligence tool. I would like to suggest that more non governmental organisations be included on this Oversight Committee and that the total number of such members not be restricted to two people.

In order to ensure the successful implementation of this legislation, I believe that First-on-crime scene police investigators, as well as key personnel involved in crime scenes, including the private security and emergency services sector, must be trained in how to identify, collect and preserve DNA evidence at crime scenes, so that critical evidence can be collected and fewer cases will be at risk of being jeopardised due to the mishandling of evidence. In addition, officers of the courts must be educated in how DNA evidence technology works to strengthen a case against the guilty or prove the innocence of a suspect quickly, thereby decreasing delays in court.

The public interest which is served by the new Bill is important, especially in cases of violent crime where DNA matching has proven to be invaluable in matching a suspect to a crime scene. I believe the Bill, when passed, will have a profound impact on the criminal justice system in South Africa and on decreasing rape in this country.

After my rape experience, I have dedicated my life to the battle against rape and to restoring lives after rape.  I have formed a non-profit organization, The Jes Foord Foundation, and travel the country raising awareness about the issues facing people already affected by crime as well as those who may still become victims of serious and violent crimes so prevalent in South Africa.  Thousands have shared their stories with me so I know the realities of rape in South Africa. I am thus in a strong position to appreciate the importance this legislation and fully support the passing of the DNA Bill.

I am formally requesting the opportunity to make a verbal presentation to the Committee.

Sincerely, Jes Foord
Director and Founder of the Jes Foord Foundation’

To show your support to pass the DNA Bill click here

We note with interest that almost 15 000 people have viewed our petition but only 3 950 people have actually signed it.

We also noted a comment sent to us by one of those people who viewed but did not sign the petition and it reads as follows:

“I don’t agree fully. I agree that DNA should be taken from convicted criminals for serious crimes. I don’t however agree that arrestees’ DNA should be taken as is stated in your Avaaz campaign. This infringes on your right that you are innocent until proven guilty in a court of law. It is not fair that your DNA be put in a system, when in fact you are proven innocent. For that matter they can just as well ask every South Africa to visit their nearest hospital with a copy of their ID in order to have a DNA sample taken, so that the government can keep records on you – should you ever commit any type of crime at all. This can be used against you in other ways eventually. I’m not a conspiracy theorist, but things can happen that are planted against you to make you look guilty because the police have access to your records.If you change the Arrestee part, I’m sure you’ll receive many more signatures. Including my own. Carlo”

Perhaps it is our fault that we did not make it clear that The DNA Bill states very clearly that arrestees’ DNA Profiles will be removed from the National DNA Database if the arrest does not result in a conviction – in other words only Convicted Offenders’ DNA profiles will remain indefinitely on the DNA Database. Currently there is no regulatory or retention framework for DNA profiles taken from suspects and kept in the repository of DNA profiles held by the Forensic Science Lab – therefore, if anything, those with similar concerns should be strongly in favour of the DNA Bill which provides strict safeguards for the retention and expungement of different categories of DNA profiles on the DNA Database. Until such time as the DNA Bill is passed, no such framework exists.

In addition, it is important to understand that the presence of a DNA Profile on the National DNA Database is not a criminal record. It works in the same way as the current fingerprint database: it is a reference database against which fingerprints or DNA profiles, as the case may be, collected from crime scenes can be compared to known DNA profiles or fingerprints. The recent Fingerprint Database law passed by Government allows SAPS to search against all of the 3 fingerprint databases (SAPS, Home Affairs and Transport) when a fingerprint is found on a crime scene. We noted that no-one objected to that law being passed, yet surely the same principle applies: the concerned person above would therefore have to say:

It is not fair that your fingerprint be put in a system, when in fact you are proven innocent. For that matter they can just as well ask every South Africa to visit their nearest Government Department  with a copy of their ID in order to have a fingerprint taken, so that the government can keep records on you – should you ever commit any type of crime at all. This can be used against you in other ways eventually..

Suddenly that argument does not make sense as this is exactly what we all do, and we do it willingly – submit our fingerprints to the various South African Government databases. The Forensic DNA profile held on a Database in addition contains no private information about a person other than the person’s gender. In other words the DNA profiles are stored on the DNA Database by using markers from the non-coded regions of a person’s DNA which ensures that no genetic disposition or other distinguishing feature may be read from that profile other than gender. The retention of the profile, in that form, is the same as a fingerprint, and therefore its retention does not impact on the privacy of the individual in any way whatsoever. If one looks at developed DNA Databases throughout the world, two things become clear: one is that the DNA profile itself has never been challenged as an invasion of privacy precisely because it is accepted that it does not contain private information about that person other than gender. And two, there exists a regulatory framework to govern the retention and expungement of DNA Profiles on a Database.

The inclusion of a DNA profile into the DNA Database at the time of arrest is important because:

1. it quickly includes or excludes a suspect from the investigation: a DNA profile is an objective and reliable science and the DNA profile either matches the crime scene profile or it doesn’t.

2. it allows the SAPS to search that DNA profile against the crime scene profiles collected from other crime scenes – this will quickly identify a serial offender. We can’t imagine that in our country which has one of the highes rates of recidivism (re-offending rate) in the world, that the identification of serial offenders would not be supported given that it may save future lives by preventing that person from continuing to commit further crimes…?

3. the entry of the arrestee’s DNA profile onto the Database is an investigative lead, not a criminal record, and as mentioned above, will be removed after a specified period of time if the arrest does not result in a conviction.

Consider this case from the USA – this is not from CSI, it is a true story, and there are countless stories like these – which is why we need to ensure that proper laws are put into place in South Africa to prevent this from happening here – and it will happen if we don’t allow DNA profiles to be taken at the time of arrest:

Chester Turner was arrested 21 times over the period of 15 years without ever being convicted of a crime that would allow his DNA profile to be uploaded into the DNA database. When he was finally convicted of rape and his DNA profile was uploaded into CODIS, it matched to the crime scene DNA found on 12 raped and murdered women. The first of these women was murdered less than two months after his first felony arrest. Her name was Diane Johnson. He went on to murder Annette Ernest, Anita Fishman, Regina Washington, Debra Williams, Mary Edwards, Andrea Triplett, Desarae Jones, Natalie Price

, Mildred Beasley, Paula Vance and Brenda Bries. Had Turner’s DNA been taken upon his first felony arrest, crime scene evidence from Diane Johnson could have matched Turner’s CODIS profile and 11 women might have been saved. To compound this tragedy, a man name David Jones was wrongfully convicted and spent 11 years in prison. One cheek swab could have saved 11 lives and kept an innocent man from spending 11 years in prison. And recently Turner was linked to three more murders, bringing the lives that could have been spared to 14.

..and it will happen in South Africa if we don’t allow DNA profiles to be taken at the time of arrest!

Vanessa Lynch

INVITATIONS FOR PUBLIC SUBMISSIONS IN RESPECT OF THE DNA BILL HAVE BEEN CALLED

THE PORTFOLIO COMMITTEE ON POLICE INVITES INTERESTED PEOPLE AND STAKEHOLDERS TO SUBMIT WRITTEN COMMENTS ON THE CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL ['THE DNA BILL']. ***

Written submissions addressed to the Portfolio Committee on Police, should be directed to the Committee Secretary, Babalwa Mbengo, and posted to P. O. Box 15, Cape Town 8000, or e-mailed to bmbengo@parliament.gov.za or faxed to 086 665 5444. Kindly indicate your interest in making a verbal presentation to the Committee.

The closing date for submissions is 12:00 on Friday, 31 May 2013.

***The DNA Project has issued guidelines in respect of how to draft a submission to Parliament for those who wish to do so. Click here should you wish to read these guidelines.

You can also sign our petition here and show your support to Pass the DNA Legislation!

The Bill aims to amend the Criminal Procedure Act, 1977, so as to provide for the taking of specific bodily samples from certain categories of persons, for the purpose of forensic DNA analysis; to provide for the conditions under which the samples or forensic DNA profiles derived from the samples may be retained, or the periods within which they may be destroyed; to further regulate proof of certain facts by affidavit or certificate; to amend the South African Police Service Act, 1995, to establish and regulate the administration and maintenance of the National Forensic DNA Database of South Africa; to amend the Firearms Control Act, 2000, so as to further regulate the powers in respect of bodily samples for investigation purposes, and to amend the Explosives Act, 2003, so as to further regulate the power in respect of bodily samples for investigation purpose; and to provide for matters connected therewith.

To download a copy of the DNA Bill click on the following link DNA BILL B09-2013.9 MAY 2013

Additional information and copies of the Bill may be obtained from the Committee Secretary who may be reached via email or on tel. 021 403 3741, or cell. 072 327 1993.
This notice has been issued by Ms A. Van Wyk, MP, Acting Chairperson of the Portfolio Committee on Police.

TO READ THE OFFICIAL NOTICE IN AFRIKAANS CLICK HERE AFRIKAANS

TO READ THE OFFICIAL NOTICE IN ZULU CLICK HERE ZULU

TO READ THE OFFICIAL NOTICE IN ENGLISH CLICK HERE ENGLISH

We are often asked whether we have any success stories using DNA in South Africa – well here is a great success story about using the power of DNA to identify serial offenders: a man has been linked to seven rape cases committed over a 5 year period, through his DNA. The rapes were committed between 2008 and 2012 in the greater Durban and KwaDukuza areas.
The 34-year-old man is due to appear in the Durban Magistrate’s Court soon.  We will be sure to follow this case in the hope that the linking of his DNA to each case will secure a conviction.  http://www.news24.com/SouthAfrica/News/Suspect-linked-to-rapes-through-DNA-20130514

The DNA Bill is official: click on the links below to read the official DNA Bill which has been introduced into Parliament for review. DNA BILL B09-2013.9 MAY 2013

We expect calls for public submissions to be advertised Within the next few weeks, so please watch this space to ensure that you don’t miss out on the chance of sending in your written submission to Parliament in support of the Bill. Details will be published on this website, facebook and twitter and as soon as we are given same.

Bill 09 – Criminal Law (Forensic Procedures) Amendment Bill

Well done to our amazing DNA Project Team who rode the 2 day, 100km HouwHoek Mountain Bike Ride this weekend.

A huge Thank You also goes out to the organisers of the event for helping us create such great awareness of The DNA Project and our cause over the course of the weekend. Click here to see more photos of The DNA Project Team @HouwHoek

The below article came across my desk this morning – it resonated with me as I had a similar discussion at lunch yesterday – someone criticised the entire police force due to the actions of one officer . I found myself defending our SAPS as I have met so many good ‘cops’ that don’t get the recognition they deserve due to the bad behaviour of the ones that make it to the headlines. We are all guilty of often falling into the trap of painting everyone with the same brush – after reading this article, perhaps take some time to think of the good ‘cops’ out there, who do great work, and who deserve some recognition for that from us all every now and again.

Vanessa

This article, written by Justin Foxton,  first appeared in The Mercury on Monday 29th April 2013

Of all the many things that America does well; democracy, hamburgers, bottomless soda and happy endings – it does overkill best of all.
The response to the Boston Marathon bombings – a dreadful and deplorable act of terrorism no doubt – was like something out of a Hollywood action flick starring Chuck Norris or Arnold Schwarzenegger.

Boston – a city with a population of over 600 thousand people and a land area of more than 125 square kilometres – was locked down until an all out manhunt saw the capture of an injured 19 year old Chechen suspect as he cowered in a bloodied boat in someone’s back garden.

After the capture of this obviously misguided youth, hundreds of residents lined the streets to cheer law enforcement officers. They apparently broke into chants of “USA USA USA” and a boom box belted out Neil Diamond’s “Sweet Caroline” as US flags were raised aloft by ecstatic patriots. Relief and overkill bubbled over.

But in spite of the over-the-top American-ness of all this, there are lessons to be learnt from how the Yanks do life. Firstly, don’t you wish that we cared enough about human life here in South Africa to even consider locking down an entire city – or even suburb – when three people got killed? We can suffer over 150 brutal criminal attacks on residents of the Upper Highway area of Kwa-Zulu Natal in one month and no one talks about locking the place down. What would that even look like I wonder?

We can also draw lessons from America’s understanding of the value of celebration. When the police and the FBI caught the baddie, the public took to the streets and honoured the men and women in uniform who had worked tirelessly to catch their man. Not us. When our cops embark on exhausting and dangerous manhunts – and catch the bad guys as they often do – we don’t so much as drop KFC and a Coke at the local police station let alone take to the streets and wave South African flags around hysterically. We are quick to berate our police for being fat, lazy and incompetent but do we ever bother to honour them when great work is done?

Human beings thrive on affirmation. How can we expect our police to rise to the enormous challenges presented by crime in South Africa when all we keep reiterating is that they are overweight, useless and corrupt? What about the hard working ones? What about the honest ones? What about the ones who give their lives to protect us and our families but who still die with our scorn heaped on their heads? Do these people not deserve our thanks? Or do we just say that our taxes pay their salaries so why should we bother to thank them?

We can learn from those crazy Americans and apply the lessons to other arenas in which the dominant discourse is of ineptitude and laziness….

Our discourse is so dominated by the negative that we often fail to see the successes that are going on before our very eyes – even in areas like policing… Without creating room for celebration of the good, human beings inevitably drown in a sea of bad.

And this is what we can do to inspire an awakening of great service in our country; become people who draw the best out of one another by thanking, honouring and celebrating rather than constantly complaining and critisising.

Justin Foxton is founder of The Peace Agency.