South Africa: the current situation

We do not currently have a Convicted Offender Database in South Africa — in other words, our National DNA Database currently only consists of DNA profiles collected from crime scenes (known as Crime Stains) and DNA samples of persons suspected of a crime/arrestees. It is imperative to have a convicted offender database in addition to the crime stains and persons profiles, and it is only as a result of outdated legislation that we do not have a Convicted Offender Database in SA, as opposed to the rest of the world, where convicted offenders’ DNA profiles automatically form part of the National DNA Databases.

The existing DNA Database in SA, has through default, evolved under the governance of the Criminal Procedure Act ('CPA") of 1977, which act was promulgated long before the advent of DNA Profiling was discovered and thereafter used as a Criminal Intelligence Tool. South Africa accordingly has no specific legislation which regulates the existing DNA Database. Currently, section 37 of the Criminal Procedure Act, 51 of 1977 is the only statutory provision that deals with the ascertainment of bodily features of an accused. Section 37 makes no mention of the collection of DNA evidence, since it was drafted long before the advent of DNA profiling, yet is regarded as the legislative source for the current gathering of DNA evidence. In other words, the taking of DNA profiles and the storing of those profiles on the National DNA Database of SA (NDDSA), is currently being done in a legal vacuum. Legislating policies and procedures to regulate a National DNA Database for criminal intelligence purposes is a matter of some urgency, not only because of the potential value of DNA as a law enforcement tool but also because of the civil liberties issues that these practices raise.

The expansion of the NDDSA is directly linked to the implementation of the new DNA Bill, which will allow for the inclusion of all types of profiles, as well as speculative searching between the different indexes. The continued success of the NDDSA will also be achieved through its continued expansion. That means profiles must be allowed to be added and retained on the database to ensure its growth. A policy that calls for an unconditional restricted time period to retain profiles will erode the NDDSA and decrease its effectiveness over time. The larger the NDDSA, the more powerful it is as a criminal intelligence tool.

In order to address this shortfall, the Office of the Criminal Justice System Review, tasked with identifying challenges which have an impact on the efficiency and effectiveness of our justice system, identified, as a priority, the need to strengthen the forensic gathering capacity of the South African Police Service (SAPS). To this end, The Criminal Law (Forensic Procedures) Amendment Bill B2-2009 (hereafter referred to as the ‘DNA Bill’) was drafted and adopted by Cabinet in December 2008. The DNA Bill, currently still under review by Parliament, seeks to address gaps in our current legislation dealing with the collection, storage and use of DNA evidence and to provide for the expansion and administration of a national DNA database, which will be called the National DNA Database of South Africa (NDDSA).