Date of Meeting:
4 Jun 2013
Ms A Van Wyk (ANC)
Documents handed out:
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.
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
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.
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.
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.
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.
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