This week is non-stop action at the DNA Project… Following the great news yesterday regarding the adoption of the ‪#‎DNABill‬ by Parliament, we’re excited to announce the launch of Operation: DNA CSI – a brand new section of our website dedicated to our DNA Awareness Campaign.

To view our new section please click here  “Operation: DNA CSI” or on the OPERATION: DNA CSI logo in the header.

We look forward to hearing your thoughts and feedback.

THE DNA PROJECT TEAM

The DNA Project is joining forces with a number of Women’s Day Events this weekend, to create greater awareness around the pressing issue of rape in South Africa. These events will not only provide a platform to teach women how valuable DNA evidence is to secure convictions but will highlight how important it is to ensure that DNA evidence is collected within 48 hours after a sexual assault. The earlier we can identify rapists, the sooner we can take them off our streets, preventing them from attacking again…and again. One of our Trainer’s, Jenna van den Munckhof will be presenting at two such events this weekend where she will share her personal experience which has endeared her to the underlying cause of The DNA Project. Jenna hopes to educate as well as inspire South Africans to stand up and be counted in order to make a difference in our country.

Jenna at a recent rally to stand up against rape and violence against women and children in South Africa.

More about the events:

Don’t hate me ’cause I’m beautiful

This year the theme is Violence Against Young Women and Girls and aims to address the current wave of violation be it through abusive relationships, murder or rape. The statistics speak for themselves and therefore bare no repeating. Atrocities and violence toward women needs to be addressed.

On Saturday 10 August at Iziko National Museum, Cape Town, South Africa  guest speakers from the NPA (National Prosecuting Authority) and The DNA Project will give more insight on this subject.

On Friday, 9th August De La Plaix in Klapmuts will host the Bags of Hope women’s day event. Unfortunately tickets to this event have been sold out.

Date of Meeting: 24 Jul 2013
Chairperson: Ms A van Wyk (ANC)

Chairperson of the Portfolio Committee on Police, Annelize van Wyk discussing the DNA Bill with Etv news.

The meeting commenced with a presentation from South African Police Service (SAPS) on its implementation plan for the Criminal Law (Forensic Procedures) Amendment Bill, which included DNA samples. It aimed to address the concerns of the Committee raised in the last meeting, which included some of the costs as well as well as the current state of readiness and issues surrounding the Combined DNA Index System (CODIS) system. The presentation began with an implementation plan and addressed the identification of authorised persons by ensuring that all authorised persons would be given an identification tag. It was noted that officers would be trained in proper sample taking beginning with detectives in the first year and eventually over time all officers would be trained. SAPS gave the figure of testing 650 000 persons per year at a cost of R80 million. As requested by the Committee, the SAPS presentation broke its steps down into short, medium and long term columns to better demonstrate the intended time lines.

SAPS outlined the process for buccal sample taking and noted the persons who would be subject to sampling – those persons included those under arrest for Schedule 1 offences, persons released on bail, persons for whom a summons had been served in relation to a Schedule 1 offence, anyone convicted by the court and all those on the National Register for Sex Offenders.

The Chairperson interjected at this point and asked SAPS to get to the monetary figures.

The SAPS delegation continued by explaining the buccal sample-taking process in detail. After the successful taking of the sample it was sent to the Forensic Science Laboratory (FSL) where it was analyzed and catalogued. At FSL it was run through a comparative search to see if any results had been found. SAPS noted that familial searching was done in cases of serial violent rape, serial murder or unidentified remains and missing persons. These processes all could uncover leads which would be used by investigators. A section of the presentation focused on cooperation with international DNA databases so that comparative searches would be done in international databases to uncover any leads. South Africa would contribute to these international databases.

SAPS addressed the expunging of information, which was a previous concern of the Committee. It was noted that no expunging process was currently in place but that it was being developed. Information would be expunged in cases in which the accused was found innocent or the case was dropped. The information of voluntary submissions would be expunged once their purpose had been served.

The SAPS delegation presented expected costs and time frames, they revealed the formation of a Steering Committee which was to be established by 31 July. This Steering Committee was to meet on a monthly basis to discuss and evaluate progress. By September 2013, SAPS intended to have a better understanding of the scope of the integrated booking system, this would enable SAPS to implement an individual identification number process. SAPS noted that the current plan used many systems that were all ready in place, but these systems would require much customization which took a good deal of time. The plan stated that the purchase and installation of barcode scanners would be completed by June 2014 and that it was a major part of the implementation process.

Parliament, Cape Town

SAPS noted the importance of the new systems ability to support the National Register for Sex Offenders. The presentation mentioned that the old system processes were tangled and in order for SAPS to process the volumes they intended, the processes would have to be untangled. The SAPS delegation went through the tables which demonstrated the costs of each step, as per the request of the Committee.

The next part of the SAPS presentation was the determination of which system to use. It was noted that SAPS was on the verge of signing an agreement with the US Federal Bureau of Investigation (FBI) to use the CODIS system. SAPS stated that the decision to be made was whether to use CODIS or a homegrown system entitled SOLVE. A comparative assessment would be done, although it was admitted that they were leaning towards CODIS because it was the choice of the State Information Technology Agency (SITA).

During the discussion, many Committee members expressed their frustration with the information presented, including the fact that a Steering Committee was only being established now. Members noted the inconsistency in the figures being given in that some costs were estimates rather than firm numbers, much to the dismay of the Committee. Members asked for firm total costs as well as the annual expenditures of the implementation. Members expressed concern with the fact that previously raised questions were still not being addressed and they noted that they would not pass a Bill as vague as the one presented by SAPS.

The Chairperson was in agreement with the rest of the Committee and expressed much frustration. The accusation was made that SAPS was attempting to confuse the Committee, but the Chairperson assured SAPS that this method would not work as they were willing to wait and learn. The Chairperson continued questioning by asking about some of the figures presented including the R25 million per annum, how long would this go on? Many questions were asked in regard to the vagueness of the costs.

The SAPS delegation stated that the Steering Committee was only being formed now as this was the decision made. This statement was met with skepticism and frustration from the Members. It was noted that SAPS had come to the realization from the morning’s questions that a total cost was needed.

The Chairperson pointed out that having a total cost was the reason that SAPS had been asked back after their last presentation. SAPS was requested to come back with a total cost that afternoon.

SAPS responded on the time line it would take for implementation as well as the limitations of the systems while the implementation process was ongoing. The Committee noted that with this information they would be able to add provisions in the transitional arrangements to address such things. On the training of officers, SAPS noted that training would be prioritized at a rate of 20 000 officers per annum.

The Committee expressed their concern throughout the meeting with the lack of a concrete total cost. They believed that their skepticism was well founded because SAPS had broken promises in the past. A concern was raised about why the SOLVE system was even being considered as CODIS had been tested and widely used and was the choice of SITA. It was suggested that SOLVE was only being looked at by the IT department because of previous promises made in past contracts.

The SAPS delegation requested to defer some cost related questions until after lunch when they would have a better cost breakdown to work with. This request was met with a large amount of skepticism from the Committee. The decision was made that the Committee would sit down and write a list of specific questions for SAPS so that they would be able to have official answers on record. The overall sentiment emerging from the Members in regards to the SAPS presentation was that of disappointment and frustration.

The Department of Correctional Services (DCS) presented its part in the implementation process of the Bill, the presentation put a heavy focus on the dealing with backlogging in the system and the methods they would use to combat this. It was noted that the DCS was working in collaboration with other bodies to find the most appropriate ways to go about vanquishing backlogging as well as training to do so. After explaining the implementation from the DCS perspective, it was estimated that all inmates could be processed within 12-18 months.

The National Health Laboratory Service (NHLS) was called upon to explain its training plan for SAP officials. The scope and function of NHLS was outlined as well as its track record of success. The NHLS would train groups of 20 at venues located within 150 kilometers of a police station. The training would cover background information, how to prepare a workstation, filling out the paper work, taking of the actual sample, as well as an assessment test at the end of training. It addressed the Committee’s concern about those who fail the assessment by stating that they would be retested because the process was about understanding.

At the beginning of the afternoon session (see next report), the Chairperson noted that the time allotted for SITA and SAPS to bring back a total cost figure was insufficient and they would require more time. The Committee then began deliberations on the Bill with the SAPS legal drafters, the Office of the Chief State Law Advisor, the Parliamentary Law Advisers and the Civilian Secretariat for Police.

Training Plan for SAPS Officials by NHLS

DCS: Implementation of Criminal Law (Forensic Procedures) Amendment Bill

South African Police Services presentation

Countries Using CODIS

Annexure B: DCS Medical Practitioners and Nurses
Implementation of Criminal Law (Forensic Procedures) Amendment Bill for Persons Detained in DCS Correctional & Remand FacilitiesImplementation of the DNA Bill Accreditation Plan
Criminal Law (Forensic Procedures) Amendment Bill [B9-2013]
Status / Timeframes / Costs of IT Systems In Support of Criminal Law (Forensic Procedures) Amendment Bill

Criminal Law (Forensic Procedures) Amendment Bill
Working Draft of Criminal Law (Forensic Procedures) Amendment Bill (24 July 2013)

Minutes:

Opening remarks
The Chairperson apologised for being late and requested that the South African Police Service (SAPS) delegation begin their presentation noting that she was hopeful that progress had been made since the last meeting and that the requests of the Committee had been taken into consideration.

Status/Timeframes/Costs of Information Technology in Support of Criminal Law (Forensic Procedures) Amendment Bill and Business Plan of the Main Drivers to Support DNA Bill
Lieutenant General Bonginkosi Solomon Ngubane, Divisional Commissioner of Technology Management Services, stated that the purpose of the presentation was to accommodate the previous requests of the Committee to return with a clearer presentation. He noted that these requests had been taken into consideration including an explanation of the background plan to implementation as well as their current state of readiness. He mentioned that the issue of using the CODIS system would be addressed later in the presentation. Teams had been mobilized on the ground in support of this Bill and were ready to begin work. Lt Gen Ngubane asked Major General Adeling Shezi to continue the presentation.

Major-General Adeline Shezi, Head: Quality, Forensic Division, SAPS, reiterated Lt Gen Ngubane’s statement that this presentation addressed the suggestions made by the Committee and that the issue of who would take DNA samples had been added to the presentation. She bagan the slideshow presentation by focusing on the implementation plan. A revised training plan had been made by SAPS in collaboration with NHLS and would be presented later. SAPS had addressed the identification of authorized persons, as raised by the Committee, by ensuring that all authorized people would be required to wear a identification tag that would become part of the dress code. The intention was to have all officers trained in proper sample taking, but the training would begin with detectives as a priority. All Department of Correctional Services (DCS) nurses would received this training. The training rate would be 20 000 persons per annum, beginning with priority training (detectives).

Gen Shezi went on to present some of the estimated costs in implementation as demonstrated in the Business Plan of the Main Drivers to Support DNA Bill (July 2013). It was estimated that there would be 650 000 samples taken per year and that the annual cost of this process would be R80 million. The table provided short term, medium term, long term columns which better demonstrated the intended time line of the project, as requested by the Committee.

Lt Gen Ngubane explained in detail the process of taking buccal samples. These would be taken for all arrests in relation to Schedule 1 offences, persons released on bail (who had no sample taken at time of arrest), summons served for a Schedule 1 offence, anyone convicted by the courts, and any person whose name had been added into the National Register for Sex Offenders. SAPS was currently in the process of creating a unique person identifier, which would consolidate all previous methods.

The Chairperson interjected and stated her desire for the presentation to get to monetary figures as that was the current primary concern of the Committee and her patience was wearing thin with the current situation.

The proper steps in taking a Buccal Sample were explained in detail by Lt Gen Ngubane which were to be taken after the fingerprints. Upon successful completion of obtaining a buccal sample the information was registered and the Forensic Science Laboratory (FSL) would analyze and take the proper steps in creating a profile. The FSL would complete a comparative search of the sample via their database. If the sample created any leads, those leads were followed, if not it was reported so. Each person who had a sample taken was provided with a unique number accompanying their sample and in the case of multiple persons arrested in one crime each still had their own number.

Lt Gen Ngubane addressed a previously raised concern about the expunging of information, noting that there was currently no expunging process in place, but he would present an outline for the future process. Information would be expunged from the Arrestee Index if the accused was found innocent or the case was withdrawn, their information would be expunged. This was the case for those who had DNA profiles in the Volunteer Index, once they had finished their purpose or their case was finalized, their information was expunged. Whenever someone was convicted, the DNA Profile was removed from the Arrestee Index and automatically loaded onto the Convicted Offender Index.

Familial Searching was done in the case of serial violent rape, serial murder cases or to identify unidentified remains and missing persons. This was done to provide detectives with leads by comparing familial DNA profiles through medium stringency settings.

The process of using DNA from foreign and international law enforcement agencies was explained as South Africa had access to the Interpol DNA gateway. DNA profiles would be obtained from international law enforcement agencies and subsequently put through comparative analysis with the DNA profile database in South Africa to see if any forensic leads were found. SAPS loaded forensic DNA profiles onto the Interpol DNA gateway. Once the National Forensic DNA Database (NFDD) was in place, this process would become automatic.

Lt Gen Ngubane went on to explain some of the expected costs and the time frames set out for implementation. It was planned to have a Steering Committee in place by July 31 and that this committee would meet on a monthly basis to discuss progress. SAPS had a goal of scoping the full functionality of the integrated booking process in order to ensure proper functioning by the end of September 2013 as well as to have the interface functioning. Having the interface completed by this date would ensure that the individual number method system of identification was functional.

The plan used many systems that were already in place but that these systems would require changes to meet new needs. The system would take much customization and that this would take a significant amount of time as the customization was quite intricate. The plan stated that the purchase and installation of barcode scanners was to be completed by the end of June 2014, and that this was a major part of the implementation process along with the installation of the proper labware.

In response to Lt Gen Ngubane asking if he should go through each cost as it seemed like a tedious task, the Chairperson said that she believed it was necessary to do so as it was the Committee’s main concern.

Lt Gen Ngubane noted the importance of the new CRIM interface’s ability to support the National Register for Sex Offenders. By ensuring that the information between SAPS, Department of Justice, and the National Register for Sex Offenders was automated, it would ensure that all DNA information would be processed in an appropriate time as to ensure no mandates expire. SAPS intended on completing a project plan in regards to person tracking within the Criminal Justice System (CJS) by the end of 2014.

One of the reasons the initial implementation tasks would take so long was that the previous system implemented in 1999 was comprised of a database and an application which were embedded together and it would be necessary for both to be untangled in order for SAPS to handle the volumes they have. This would be done in order to continue processes while the new configuration was being installed.

The correct software was currently in place, and the issue was working with Forensic Services to develop specifications in order to begin implementation. The plan to roll out new equipment as well as the Support Reference Index should commence by 31 August 2013 but that it was dependent on the contract with SITA.

Lt Gen Ngunbane continued through the table, noting the expenditures.

SAPS would soon sign an agreement with the Federal Bureau of Investigation (FBI) for implementation of the Combined DNA Index System (CODIS), currently in use in about 70 countries. A decision had to be made about whether SAPS would choose to use CODIS or a homegrown system entitled SOLVE.

Lt Gen Ngunbane expressed his concern with CODIS which was that there was no current access to the CODIS softcode because every country had its own unique softcode, so it would have to be customized. He noted that despite this, the amount of work for both systems would be about the same and that CODIS was a proven system. By the end of September, SAPS would visit foreign countries with CODIS in place in order to assess the amount of customization that would be need to be done and its cost. SAPS was leaning towards choosing CODIS and SITA had already demonstrated itss support for CODIS due to its proven track record.

Lt Gen Ngunbane explained the next step which was to move into prioritized functions, but this step was dependent on the completion of the previous stage. This process was estimated to cost R7 million, with another R4 million going towards customization. The final step was an annual risk assessment done by SITA to identify shortcomings, which would be at an annual cost of R3 million. He ended his presentation by stating that the biggest issue was the completion of Phase 1, which was the identification of the proper system to use. He reiterated SITA’s backing of CODIS.

Discussion
Ms M Molebatsi (ANC) expressed frustration about the Steering Committee only being established now. She asked why it was beginning only now although the Bill had been in discussion for quite some time.

Ms D Kohler-Barnard (DA) asked for clarification on whether the Bill would work retroactively in collecting samples from those with prior convictions residing in Correctional Services facilities. The presentation made her confused because no final monetary figure was given. However, she had added up the figures herself and it came to roughly R70 million. She questioned whether this figure was correct because she saw some problems, including some costs that were just estimates, some which were annual costs, and no figure for the barcode scanners. She asked for the total cost as well as the annual expenditure. She mentioned her frustration at this as she believed finding such totals was the original purpose of the meeting. She expressed concern over the lack of a concrete time frame and questioned how long this process would actually take.

Mr M George (COPE) noted concern about previously raised questions still not being addressed including the Property Control and Exhibit Management (PCEM) contract and why it was not in full operation yet, although he was under the impression the case was to the contrary. He commented on how SAPS kept referring to the project as an intricate one. He did not believe that was a valid excuse for not having a set finish date. He asked how the Committee was expected to pass a bill that was as vague as the one presented by SAPS. He believed the lack of a total cost was deliberate and claimed that this presentation was worse than the previous one.

Mr V Ndlovu (IFP) asked why there was such a large gap between the modernisation of the DE-STR Lab in June 2014 and the Labware configuration in December 2017. He added to Ms Molebatsi’s question about the Steering Committee, asking who and how many would be on this committee.

The Chairperson was in agreement with the rest of the Committee that the lack of a total and an annual cost was troubling. She accused SAPS of complicating the issue in an attempt to create a lack of understanding amongst the Committee, but she assured them they would wait and learn instead. The Chairperson brought into question the figures given in regards to training. She claimed that the budget for this year did not have the funds to train 300 000 people and that SAPS should know that. The Chairperson noted the claim that the training process would take R25 million per year, but questioned for how long would this continue. The statistic given was 650 000 samples taken per year, but she believed that this was too low given that more than 50% of crimes committed in South Africa were Schedule 1 offences. She asked of the 650 000 samples,  how many would be sent to be analyzed and why was this not reflected in the costs? The Committee still had plenty of questions to be answered and requested that the answers from SAPS be short and precise.

Lt Gen Ngubane acknowledged Mr George’s question on the implementation of the PCEM process and stated that PCEM would begin rollout when the software development had been completed which was scheduled for December 2013.

The Chairperson said there was confusion among the Committee about PCEM because during the last meeting, it was said that PCEM was ready to go. She clarified that PCEM was functional at the laboratory which was a test site and that this should have been said by SAPS to avoid confusion.

Lt Gen Ngubane addressed the concerns about the Steering Committee by stating that the Steering Committee was in the process of being formed

The Chairperson interjected to reiterate the point previously raised on why the Steering Committee was only being formed now.

Lt Gen Ngubane replied that all he could say was that was the decision that was made.

The Chairperson stated sternly that this Bill had been in the process for four years and commented that if the Bill had been passed right away, they would still not be able to implement it because a Steering Committee was only in the process of being formed. The Chairperson questioned SAPS as to why they had not been working proactively as technology support.

Lt Gen Ngubane stated that mistakes had been made in the past and they were aware of that, but they had the Bill and were trying to conform to the requirements at the time being. Had the Committee passed the Bill earlier, they would have had to support it at the time. One reason they had begun to form the Committee was because the urgency had increased. Some of the requirements had already been in place but some main systems needed to be in place for everything to be functional and it would take time because they needed to ensure that the database was properly managed.

Gen Shezi continued by clarifying that this Bill would cover both those who had been convicted in the past and those who were in the process of going through the legal system.

Lt Gen Ngubane noted that SAPS had come to the realisation at this meeting that they would need to have a total figure.

The Chairperson interjected that that was the reason they had asked SAPS to come back after having the first meeting.

Lt Gen Ngubane continued by stating that work was ongoing regardless but they were working within the constraints of not having the Bill passed. Many costs were estimates but the cost of the software was the real cost.

The Chairperson again interjected and requested that after lunch they return with a total cost, including hardware, software and the total costs. The Chairperson expressed frustration in that it was the second time SAPS had come before the Committee without the requested costs.

Lt Gen Ngubane addressed the question on the time line. The configuration of the main databases would be completed in December 2017. Work would be completed in the mean time but he reiterated that for the main database to be complete, it would take a four-year period. In the meantime, they were focused on ensuring that the current system in place would continue to work while the new systems were being configured.

The Chairperson asked what the limitations of the current system were so that the Committee could be aware of what constraints SAPS was working with during the four-year implementation period.

Gen Shezi explained that the current system was designed only to handle a certain amount of information. With all the changes that had occurred since the system was established in terms of technological advancements, the current system was becoming insufficient and this was why the new system must established.

With these revelations, the Chairperson asked what the limitations of using the old system for the next four years would be.

Gen Shezi replied that processing times would be greatly increased as well as there would be missing timelines.

The Chairperson noted that with this information the Committee would be able to put provisions in the transitional arrangement to address this. She noted that it was frustrating for the Committee to be the ones to have to come up with such things.

Gen Shezi addressed the question of how many officers would be trained by stating that it was the intention to have all officers trained but that it would be prioritized and thus detectives would be trained in the first year. Training would be at a rate of 20 000 officers per annum.

The Chairperson stated that by her calculations it would take R2.5 billion and nine years to train all SAPS members.

Ms Kohler-Barnard said that the presenters must accept the Committee’s skepticism because that particular division had broken prior promises. The Committee would not sign a Bill that did not have a total cost and was filled with holes. Many past bills remain unimplemented in the stations they had visited. She noted her lack of confidence in and frustration with SAPS and asked if they were wasting billions of taxpayers’ money.

Mr Ndvolu reiterated his concern about the cost of the Bill as some of the costs noted in the presentation were not covered in the budget. He asked about the time frame and cost of training all detectives.

Mr George asked if the training would be with the Department of Health and if could be done with the current facilities.

The Chairperson asked why SAPS and SITA still had the SOLVE system in consideration when it was admittedly an unproven system. She noted that the statement that South Africa was a unique situation was not valid as every country had its own unique circumstances. She asked what the cost of SOLVE would be.  She was curious as to why SITA would recommend looking at another system when they had previously told SAPS that CODIS was the best option.

Lt Gen Ngubane answered the question of who would be a part of the Steering Committee by stating that it was an internally operated committee with members from SAPS, SITA, technology management and the forensics division.

Mr George asked if this was an internal committee why had it taken so long for it to be implemented?

The Chairperson interjected and stated that whether the committee was to be set up at that moment or in the proceeding weeks it would not make a difference because it should have been set up four years ago.

Lt Gen Ngubane responded by saying the Steering Committee was now ready to begin its work.

This comment was met with skepticism and laughter from the Committee prompting the Chairperson to ask for order.

Lt Gen Ngubane addressed the question of why they were looking at the CODIS system in other countries by stating that it would help them better learn about the adaptation process. Why they were still looking at SOLVE was a question he had asked himself, as SOLVE was an untested system. They already had the SOLVE software and that was the main reason it was being looked at. The system was given to them and they had planned to roll out the system but SITA intervened and recommended considering CODIS instead.

The Chairperson was of the opinion that the problems were in the IT department as the SOLVE system might be free, but the costs came with its adaptation. The cost of adaptation could amount to considerably more than previously estimated. What would the cost of adapting SOLVE be?

Lt Gen Ngubane replied that the cost of adapting SOLVE would be the same as adapting CODIS, which was estimated at R44 million. The Chairperson’s statement about free software was true and it was given under the PCEM contract.

Mr Ndvolu said that SOLVE was not the preferred solution of the Committee and it should go with CODIS.

The Chairperson stated that CODIS was the choice of SITA and that SAPS should have known that. She continued that comparing the two systems was a waste of taxpayers’ money and should not be done. She stated that deciding to look at SOLVE because of the PCEM contract was their problem.

Lt Gen Ngubane asked the Committee if they could defer some of the cost related questions until after lunch.

The Chairperson interjected by again reiterating that that was the purpose of the meeting.

Lt Gen Ngubane stated that they would provide a better cost breakdown after lunch.

This statement was met with a large amount of skepticism from the Committee.

Ms Molebatsi asked how long it would take to train the detectives from the date of implementation.

The Chairperson stated that the Committee would sit down and write a list of specific questions so that they could have official answers on record and that this would be done the following Wednesday 31 August. The Chairperson noted her disappointment with how the plan presented was all over the place.

Correctional Services Implementation of Bill for DCS Correctional and Remand Detainees
Ms Britta Rotman, DCS Chief Deputy Commissioner: Remand Detainees, focused on backlogging the system and documenting those in correctional facilities and those in remand. She noted the bodies that formed the Implementation Task Team: Department of Correctional Services; SAPS (Forensic Services and Legal Services); National Department of Health; National Health Laboratory Services (NHLS); Civilian Secretariat for Police; Integrated Justice System Board; CJS Review.

The Bill stated that the head of the relevant Correctional Centre or Remand Detention (RD) Facility had the responsibility to take DNA samples from those serving a sentence in their facilities. Meetings between SAPS, NHLS, DCS and the Office for Criminal Justice System Reform (OCJSR) were conducted to find appropriate and efficient ways of obtaining the buccal samples and to train the authorised persons. There were a total of 239 operational Correctional Facilities with a total population of 151 921 persons serviced by 990 DCS nurses, of these 990 DCS Nurse posts there were a 122 vacant.

Ms Rotman stated that it was estimated that 5 000 SAPS and Independent Police Investigative Directorate (IPID) members would be trained by the end of the financial year and 20 000 per annum there after. After training they ensure the Committee that trained people would be well distributed across the country. Ms Rotman went on to note that samples would be taken by people of the same gender, which had the potential to slow down operations. She stated that if all DCS Nurses were to be trained it would cost R1.2 million.

Ms Rotman noted the belief that with an aggressive approach the entire population within the DCS system could be processed within two years. She explained the DCS approach to getting samples from remand detainees by stating that they would enter the system upon arrest during the time SAPS was implementing the Bill. Those remand detainees who were in DCS facilities for longer periods would be catered to differently as they represented a minority.

Ms Rotman assured the Committee that all sentenced inmates would be processed within 12-18 months after the implementation date and the work would be done by the newly trained SAPS officials. Once the backlogging was completed, the need for buccal swabbing in Correctional or Remand facilities would diminish to almost zero as most would have been processed upon arrest. The need for DCS to take samples would exist only in exceptional circumstances. DCS’s primary role in the implementation would primarily be to aid SAPS in the taking of samples by providing a place to do so and support.

It was recommended by Ms Rotman that the samples be taken by SAPS officials under DCS supervision as it negated the need for DCS to provide any storage of buccal samples and ensured that the samples were brought to SAPS and FSL as quickly as possible. SAPS would have to provide DCS with information on swabs that had been newly collected from newly admitted detainees for DCS records.

Ms Rotman noted the creation of a cross-departmental Memorandum of Understanding which provided an agreed upon framework relating to information flow and training of authorised persons by the Department of Health through NHLS. This understanding ensured that the taking of buccal samples and related issues was in accordance with the National Health Act.

Ms Rotman concluded her presentation by assuring the Committee that the Joint Implementation Team consultation between all parties was happening and that implementation planning was on track. She stated that approving this Bill would aid the Justice, Crime Prevention and Security Cluster (JCPS) in its endeavors to substantially reduce crime.

Discussion
The Chairperson asked a question of clarity in regards to the DCS not having complete capacity for training.

Mr George asked why the nurses did not have the ability to train, as he was under the impression they were trained to international standards.

Ms Rotman clarified that it was not the ability of the nurses that was in question; rather she was referring to the difficulty of backlogging the database. Organized prioritisation measures must be taken in order to vanquish the long procedure of backlogging.

Training Plan for SAPS Officials by National Health Laboratory Service (NHLS)
Ms Nimee Dhuloo, Acting Executive Manager: Human Resources, noted that NHLS was a public laboratory service with a network of laboratories across South Africa. It worked under the mandate of the Department of Health and was established in 2001 by an Act of Parliament in order to provide diagnostic pathology laboratory services to national and provincial health departments.

Ms Dhuloo stated that NHLS had over 7000 staff and 349 laboratories serving 80% of the population. She went on to speak of the importance of the training they provide by stating that their training would be in line to international legislation and provide competent authorised officials in the taking of buccal samples. She noted the success of NHLS in training and their promotion of development in laboratory services.

The NHLS would provide training to groups of 20 at venues located within 150 kilometers of the cluster police station and that following the training a competency assessment would be done and once deemed competent the official would receive a certificate stating so. The training would be extended to approximately 100 000 police officials over a five year period and a national rollout of 20 000 officials per annum would occur across different venues in the country.

The time frame that NHLS had for implementing training was to start the pilot in October 2013 with real training starting in November 2013 and pausing during the holiday season. The initial training would encompass roughly 3000 police officials who would provide feedback to NHLS who would make adjustments accordingly. Training and roll out would commence in Gauteng. The training schedule the NHLS had set out as part of the one-day learning program was:

Section A: Training and Competency of collection of Buccal Smears
This section included background information, the preparation of the workplace, paperwork, and information on health and safety. The program continued by training on the collection of a sample and the proper use of the kits as well as proper storage methods for buccal samples. Section A concluded with the taking of the Competency Assessment test.

Section B: SAPS/Forensic Awareness
This section focused on training officials as to what forensic science is, as well as information regarding the National DNA database. It provided trainees with the opportunity to ask questions and provide NHLS with feedback in regards to the training.

The presentation of NHLS concluded with the reiteration of their commitment to delivering the best training for SAPS as well as their excitement to get started.

Discussion
The Chairperson thanked NHLS for the presentation and noted that it had addressed some of the previously raised concerns. She noted to SAPS that when the memorandum of understanding was signed the Committee would need a copy for their records.

Mr George asked what happened to those who fail the assessment at the end of training. He asked for clarification on where the training would be done, as he was under the impression that SAPS did not have the facilities.

Mr Ndvolu asked whether all the labs were functioning properly because he worried that with backlogging, cases could be thrown out due to time constraints.

The Chairperson interjected at this point and explained to Mr Ndvolu that NHLS was not the body responsible for backlogging.

Mr B Dume, NHLS National Project Manager, explained that there was a difference between forensic labs and the NHLS labs and that there was no backlogging at the NHLS labs.

Ms M Baruth, NHLS National Training Manager, addressed Mr George’s question saying that no one fails an assessment because it was about knowledge, skill, attitude. It was all gained through theory as well as practical direct observation. If a trainee was incorrect, they remained on site until they understood and passed.

The Chairperson stated that this information was good to know as it demonstrated that those without the proper attitude would not be successful in the training. She asked how much the cost of each buccal swab was and how much the cost was per trainee.

Ms Dhuloo replied that each kit cost R668 and training would cost R1 475 per officer. She stated, upon being asked by the Chairperson, that there would be no extra costs.

Gen Shezi stated that there was no perceived cost escalation based on NHLS estimates. The competency tests performed by NHLS would allow SAPS to better know who should be doing the actual testing.

Mr George interjected and stated that he believed most officers would fail the attitude test.

Gen Shezi responded by stating that SAPS would not certify incompetency.

The Chairperson suggested that SITA and SAPS should leave to figure out a total cost.

The Chairperson stated that the time allotted over lunch to SAPS and SITA to bring back a total cost figure was insufficient and they would require more time. She suggested that it was best for the Committee to move on and begin deliberations on the Bill.

Documents handed out:

Criminal Law (Forensic Procedures) Amendment Bill: SAPS drafting of Committee proposals
Major General Philip Jacobs, SAPS Head: Legal Services, took the Committee through the working draft of the Bill indicating the changes to the Criminal Law (Forensic Procedures) Amendment Bill as proposed by the Committee.

Clause 1 Amendment of section 36A of Act 51 of 1977, as inserted by section 2 of Act 6 of 2010
Clause 1(a)
He noted the addition of a definition of “authorised officer” in section 36A (aA). This definition clarified that authorised officer meant “the police officer commanding the Division responsible for forensic services within the Service, or his or her delegate”.

Clause 1(b)
Changes to the definition of “authorised person” gave the cases in which that definition applied, which included photographs, fingerprints or body-prints, applied with reference to buccal samples (though it must not be the crime scene examiner of the particular case), and any medical practitioner or registered nurse as defined in the National Health Act.

Gen Jacobs proposed that they add a provision to state that police officials were to take a Correctional Services officer with them to process detainees.

The Chairperson asked for the opinion of the Committee and expressed concern with the proposal because of the belief that SAPS could use this to defer responsibility to Correctional Services. The Chairperson asked if medical practitioners and nurses needed training.

Gen Jacobs responded that they did not require training.

The Chairperson asked if that was the case, was it necessary to mention medical practitioners in this section.

Ms Jenni Irish-Qhobosheane, Secretary for Police, Civilian Secretariat for Police, responded that she believed it was best to leave it in as a precaution for any situation that may arise.

The Chairperson stated that the SAPS Act accounted for medical practitioners so it was not necessary for them to be included in this Bill.

Clause 1(c)
Gen Jacobs said these insertions were clarification of the definition of body print which stated that “bodily sample” meant “intimate and buccal samples taken from a person” and furthermore “buccal sample” meant a “sample of cellular material taken from the inside of a person’s mouth”.

Clause 1(d)
He noted the substitution of the word ‘person’ for ‘officer’ in the definition of “comparative search”. There was a substitution of the definition of “comparative search”, which added to the previous definition in stating that it encompassed fingerprints, body-prints and photographic images as well as DNA profiles previously obtained.

Clause 1(e)
The additions included definitions of bodily sample, DNA, forensic DNA analysis, forensic DNA profile, intimate sample, and NFDD [that is, the National Forensic DNA Database].

The Chairperson suggested that crime scene sample should be added to the definition of forensic DNA analysis alongside bodily sample in the second sentence for clarification because they were not the same thing and analysis was being done for both.

The Committee agreed with the Chairperson.

Ms Kohler-Barnard asked if it had even been challenged internationally that a buccal sample was an intimate sample. She asked how it was defined elsewhere and if it was the international standard.

Gen Shezi replied that it was the norm and was used widely internationally.

The Chairperson inquired about section 36A(fC) in regards to the use of the word ‘gender’. She suggested that the word ‘gender’ must be changed to ‘sex’ here and throughout the document. She proposed a grammatical change to section 36A(fD) from “samples taken from a person or from a crime scene” to “samples taken from a person or samples taken from a crime scene” as it provided clarification.

Gen Jacobs went on to explain the new additions to the definition of intimate sample in section 36A(fE) and noted this section relating to handled or discharged a firearm and handled or detonated an explosive was relative to the Explosives Act and the Firearms Control Act. In this Bill, the tests to determine whether someone had handled or discharge a firearm or explosive was not present as it was covered elsewhere.

The Chairperson suggested that section 36A(fA) be looked at, as it was believed that issues regarding firearms and explosives be moved under the definition of crime scene sample as it was not an intimate sample and fit better under crime scene sample.

The legal team explained that it was not part of the definition, rather it was noting an exclusion.

The Chairperson responded that she understood, but if that was the case, why were issues such as DNA taken from fingernails not present? If exclusions were to be made, they should be all encompassing. The Committee was trying to differentiate between intimate and non-intimate samples, as well as crime scene samples and bodily samples.

Gen Jacobs explained that it could be difficult to explain the difference between taking a sample and completing a firearms/explosive test. This test was far different and very time dependent and that the legal team believed the distinction between this test and a sample was clear.

The Chairperson questioned why this definition had to be excluded in the first place as it was already defined elsewhere.

Gen Jacobs put forth the option of deleting this part.

The Chairperson replied that deletion was not what was being asked, rather the Chairperson thought it needed to be moved to crime scene sample.

Gen Shezi explained that they had previously discussed the differences between non-intimate and intimate samples and that buccal sample should be noted as an omission from intimate sample.

The Chairperson replied that it was confusing because in the firearms/explosive test no DNA was being taken. She concluded that buccal sample should remain but the portion relating to firearms/explosive testing should be removed. The Committee was in agreement.

The addition of section 36A(fG) defining the acronym NFDD was noted.

Clause 1(f)
Gen Jacobs noted the addition of the words “or bodily sample” for clarification purposes in subsection 2.

The additions to the section on taking samples from children, included that buccal samples of a child must be taken by an authorised person who was of the same sex as the child and done in strict regard to decency and order.

Clause 1(g)
It was noted that the phrase in 36(A)(4) “with the consent of the person whose bodily sample was taken or” was to be deleted as it was redundant. Further, samples must be taken in a designated area deemed suitable. Gen Jacobs noted that some of this corresponded with the Criminal Procedure Act.

The Chairperson suggested adding another provision to child rights which would state that the person taking the test was of the same sex. The Chairperson wanted to ensure that the issue of gender versus sex was clear.

It was explained that sex was gene related, while gender was a choice of how you identify yourself. The official doing the test should be of the same gender so as to create comfort.

The Chairperson noted that the previous correction made in regard to sex was correct but in that case it was more difficult.

Mr Ndlovu stated that gender should be used because it was what people were comfortable with.

The Chairperson agreed and stated that sex must be changed to gender on page seven of the working document of the Bill. She recommended adding the Minister of Justice to 36(A)(5)(a)(ii) along with the Minster of Police and the Commissioner of Correctional Services.

Gen Jacobs expressed his concern that the Minister of Justice was not covered under the Criminal Procedure Act.

The Chairperson asked for the Legal Team to look at this section again to provide some clarity.

Although the sections of the ‘Fingerprints Act’ [Criminal Law (Forensic Procedures) Amendment Act (No 6 of 2010)] were included for clarity, the Chairperson noted that they were skipping over these pages.

Clause 2 Insertion of sections 36D and 36E in Act 51 of 1977
Mr George asked if the 30 day period to destroy the samples of those who were not prosecuted noted on page ten had been agreed upon.

She mentioned that based on the morning’s presentations, the deadlines they give may not be achievable.

Gen Jacobs explained that the Legal Team had taken a look at the National Health Act and noted the prohibition in regards to taking buccal samples and that Act might clash with this Bill at some intervals. He asked if they could return with the problem solved in the final draft so as to avoid any situation where these pieces of legislation contradict one another.

The Chairperson agreed that this was a necessary step and noted that there may have to be a change made to the National Health Act to ensure this.

Gen Jacobs recommended not changing the National Health Act and instead inserting a provision in the Criminal Law (Forensic Procedures) Amendment Bill to state that samples could be taken for legal purposes.

Section 36D Powers in respect of buccal samples, bodily samples and residue tests
Gen Jacobs said Section 36D stated that an authorised person must take a sample for all those who were arrested for Schedule 1 offences, those released on bail (if not previously taken upon arrest), those upon whom a summons had been served for a Schedule 1 offence, those whose name appeared on the National Register for Sex Offenders and those convicted by a court in respect of any offence which the Minister had by notice in the Gazette declared to be an offence for the purposes of the subsection. The next section of the Bill declared that the authorised person my supervise the taking of a buccal sample if it was done by a medical practitioner or nurse.

The Chairperson stated that since they had changed the definition of authorised person to include medical practitioners and nurses that the use of the word in this section had to be changed as it was referring to police officers or a designated official. The Chairperson recommended that the legal team take a look at that and come back with an answer.

The State Law Adviser noted that Section 36D(2) and (4) were the same and that one of them should be deleted and replaced with a reference to the previous.

Gen Jacobs replied that this had been considered but the method used in this draft was more user friendly.

The Chairperson interjected and asked for them to come back with a firm suggestion as this was a technicality issue.

In Section 36D Gen Jacobs noted the addition to the title in  “Powers in respect of buccal samples, bodily samples and residue tests”.

Section 36D(5) stated that an authorised person who takes a bodily sample must within 30 days give them over to an authorised officer who would conduct a DNA analysis. The provision notes that nothing in the chapter prohibits an authorised person, medical practitioner or registered nurse from retaking a buccal sample if the first was insufficient.

Section 36D(8) now stated that DNA profiles derived from samples were only to be used:
– for purposes related to the detection of crime;
– for purposes related to the investigation of an offence;
– for purposes related to the conducting of a prosecution or defence;
– in the identification of unidentified human remains
– in the identification of a missing persons; or
– to exonerate a person convicted of an offence.

Gen Jacobs said with regards to intimate samples, a provision had been put in place that gives medical practitioners and registered nurses the right to take this type of sample – as the Committee had previously requested.

The Chairperson referred to Section 36D(5) and asked about the transportation of samples to the laboratories within 30 days. This transport was to be done by an authorized person, which included ordinary police officers. She questioned whether this was the right person to lay the responsibility upon, or whether the responsibility should lie with the station commander?

Ms Irish-Qhobosheane requested that the legal team be given more time to look at this and ensure they had the proper definition and to determine how they would hold the management at police offices responsible for this task.

The Chairperson agreed with Ms Irish-Qhobosheane that it needed to be sorted out as problems may arise when an official in a rural place was responsible for transporting the samples but did not have access to the tools necessary to get it there.

Mr Ndlovu suggested that there should be one high authority in the station responsible for delivery of the samples.

Ms Kohler-Barnard stated that they had earlier removed the section about the discharging and handling firearms, but it was present in this section. She questioned whether it had be reclassified, because as previously discussed, it did not fall under intimate samples.

The Chairperson explained that in this case it was not a definition but rather it was included as a necessary process when discussing transportation of samples and tests. The Chairperson wondered whether 36D(8)(e) was necessary or whether it could be moved to a different section.

Gen Jacobs continued with 36D(9) noting that it stated that the head of the Correctional Centre or Remand Detention Facility was responsible for ensuring that a buccal sample was taken from all the persons serving a sentence in a facility in order to address backlogging.

He noted the addition of 36D(10) which stated that once a sample was taken the head of the Correctional Centre or Remand Detention Facility must ensure that an authorised officer was informed within seven days and subsequently that authorised officer must ensure that the sample was collected within thirty days.

The Chairperson expressed concern with the responsibility being with the head of the Correctional Centre or Remand Detention Facility when it should be with SAPS.

Ms Irish-Qhobosheane clarified that the Bill should allow Correctional Services to take samples but the responsibility still remained with SAPS for the rest of the process.

The Chairperson responded by noting that sections such as 36D(9) put the obligation upon the head of the Correctional Service Centre and not upon SAPS which was concerning as it transferred liability.

Mr Ndlovu asked for clarification if the legal team was speaking about those who were already in Correctional Services or not.

The Chairperson confirmed that they were speaking about those within the Correctional Service system.

With that, Mr Ndlovu stated that he believed that put the responsibility upon Correctional Services.

The Chairperson noted that judging from their presentation, Correctional Services was not under the impression that it would be their responsibility.

Mr Ndlovu noted that SAPS and Correctional Services must work in cooperation for this to be a successful endeavour.

The Chairperson stated that it was ultimately SAPS responsibility to ensure it happened but they must notify and work closely with Correctional Services. This would require a small word change in the Bill.

Gen Shezi addressed the collecting samples of those in remand detention by stating that this fell under the scope of Correctional Services so clarification would be needed.

The Chairperson noted that there were three issues to be dealt with, the first being those in prisons. SAPS must start with those whose sentences expire the closest, those on parole, and those awaiting trial.

Mr Ndlovu reaffirmed the belief that it remained the responsibility of SAPS as they were using Correctional Services as a warehouse of information. He noted that it would be SAPS responsibility to document those awaiting trial.

Ms Irish-Qhobosheane addressed the Committee’s concern about those on parole. There were about 60 000 people on parole and suggesting that SAPS had to collect all those samples might be difficult and unrealistic.

The Chairperson stated that she understood Ms Irish-Qhobosheane viewpoint but stated that these people on parole need to be documented because the re-offence rate was so high. It would be inappropriate for them to simply ignore this and leave it out of the Bill because it was deemed too difficult. The Chairperson recommend formulating a transitional arrangements section to address this. She stated that they needed a solid way to gather samples from those awaiting trial.

The Legal Team replied that the principal act already had its structures and to add a section for transitional arrangements would be clumsy.

The Chairperson retorted that that was their problem because it was something that needed to be done, a time frame for transitional arrangements was necessary.

[Short break]

Upon returning from break, the Chairperson reiterated that transitional arrangements must be looked at, even if it required adding a separate section at the end of the Bill. This section should have a time frame, upon which expiring, the section was deleted. The Chairperson went on to request quarterly progress reports beginning at the end of the month. This was to create transparency and to avoid falling into the mistakes of the past such as the Firearms Bill.

Mr George brought up legal implications, he questioned the scope of Schedule 1 offences and how they pertained to the Bill.

The Chairperson noted that it was the decision of the legislature as to what offences were covered under Schedule 1, but that it was possible to add offences.

Section 36E Samples for investigation purposes
This section explained that authorised persons may take a sample from someone suspected to have committed a Schedule 1 offence or if they believe that the sample would aid in the investigation by excluding or including one or more members of a group as possible perpetrators. If the person did not consent to the taking of a buccal sample, a warrant may be issued if there was reasonable grounds for believing that the person had committed a Schedule 1 offence and the sample would be of value to the investigation.

Ms Kohler-Barnard suggested adding to Section 36E(2)(a) the phrase “or any other crime deemed reasonable by the Minister” in order to have the ability to expand the list without completely overhauling the legislation.

The Chairperson noted her suggestion and asked the legal team to check if any previous provisions in the Bill covered this.

The State Law Advisor spoke noting that she had two concerns, the first of which was the wording of section 36D(6)(a) when the wording “insufficient for DNA” was used. It was recommended that it be changed to “not suitable or not sufficient for DNA analysis”.

The Committee agreed with this change.

Her next concern was related to penalties for the misuse of DNA samples or profiles which was covered in prior deliberations. She referenced 36D(8)(c) which did not contain the same language as previously deliberated sections and made no mention of fines for juristic persons. She believed that this section should match up with the “Fingerprint Act” [Criminal Law (Forensic Procedures) Amendment Act (No 6 of 2010)].

The Chairperson replied the Committee put this section in to be explicit and map out serious punishment. She noted as an example soccer stadiums being built despite being against regulations and despite the threat of fines. This was because the fines were not sufficient enough to detract builders from making the stadiums. This was why the Committee wanted to be explicit in this Bill with their punishment for misuse of DNA samples and profiles. If a juristic person was offering a SAPS officer money to hand over a DNA sample it would be a significant amount, significant enough for someone to risk their career, that was why the Committee was explicit in ensuring that those who chose to do such things were accountable. The Committee agreed with the State Law Advisor on the first point but disagreed about the second point.

Gen Jacobs continued that this section benefited the police as it was more likely that someone would volunteer their DNA information rather than have a warrant sent out for them to be arrested and go through the system. This section should be looked at in a more positive light as it would provide an opportunity for cooperation from persons volunteering to have samples taken.

Mr George asked whether it was possible for people to pretend to have their dignity ruined during the taking of samples as a loophole for use in court.

The Legal Team responded that this was not a viable option as consent was given.

Gen Shezi then provided the Committee with a demonstration of how to properly use the sample kit. The demonstration sample kit was the same one that would be used to train officers and during actual implementation. An emphasis was placed on the area on the form where the person signed off and gave consent for samples to be taken.

After the demonstration the deliberations continued and Mr George once again expressed his concern with the attitude of the officers administering the test. He believed that 90% of officers would fail the attitude test. He stated that professionalism in sample taking was a necessity.

The Chairperson mirrored the Committee’s concern in noting that the issue of training all police officers must be reconsidered. There was a fear of abuse of the training system as well as inflated costs to retraining. The time period given of 9-15 years to complete all training was too long, it would prove to be a burdensome and tedious process. She asked why they should waste money on training people who should not be doing it in the first place. She suggested that a strategy be made to identify the police officers who would be trained.

Clause 3 Amendment of section 37 of Act 51 as amended by section 1 of Act 64 of 1982 & section 3 of Act 6 of 2010
In Section 37 ( Powers in respect of body-prints and bodily appearance of accused and convicted persons), Gen Jacobs stated that the word ‘blood sample’ had been replaced by ‘intimate sample’ throughout the section as it was now defined earlier in the document.

The Chairperson asked what sub-section (c) had to do with DNA and stated that the sections regarding markings on bodies was not DNA related.

The Members agreed that it did not fit in that section.

Gen Jacobs replied that this section was present as a result of the changes that been brought about in bulk from previous deliberations. The provisions in section 37 were previously part of the Act – they were just realigned in this case.

Mr George responded that it seemed out of place and did not link up to the next parts of the document.

The Chairperson asked if it was referring to drugs and alcohol because it could not be referring to DNA.

The Legal Team noted that this section was not a full amendment rather it was in place in the document merely to assist the Committee and provide more information and give the Committee perspective.

The Chairperson said that the blood being taken in this section was not referring to blood being taken for DNA purpose, rather it was to determine whether someone was under the influence of alcohol or drugs. The Chairperson noted that the words ‘blood sample’ should not be changed to ‘intimate sample’ as it was mixing two different subjects.

Ms Molebatsi stated that the entire section was not applicable to DNA.

The Chairperson agreed and noted that it should be removed because the Committee did not desire to change that part as it could create conflict with the Department of Justice. The Chairperson asked the legal team to delete those parts from section 37. The members agreed.

Clause 4 Amendment of section 212 of Act 51 of 1977
Gen Jacobs explained that ‘collection’ was added to the list of evidence that may be certified via an affidavit.

The term ‘bodily sample’ was added to paragraphs (a) and (b).

The Chairperson suggested adding in ‘crime scene sample’ to go along with ‘bodily sample’ as they were both independently defined earlier in the Bill. The Committee agreed. The Chairperson noted that in sub-section (6) crime scene samples and bodily samples should be included in the wording as well, it was requested of the legal team that the entire section be reevaluated to address these concerns.

Gen Jacobs confirmed that ‘crime scene sample’ would be added wherever ‘bodily sample’ was present.

Clause 5 Amendment of section 225 of Act 51 of 1977, as amended by section 5 of Act 6 of 2010
Gen Jacobs noted that many of these sections were written years ago and were unnecessary now.

Mr George stated that the only part he deemed to be irrelevant was 225(b) which spoke about marks on the body. His belief was that the sections regarding body-prints and fingerprints were still relevant.

The Chairperson once again reiterated the point that this was related to drugs and alcohol test and not to DNA. Those parts that were not relevant should be deleted.

Clause 6 Insertion of Chapter 5B in Act 68 of 1995 of Chapters 5A and 5B in Act 68 of 1995
The Chairperson noted that this clause dealt with the South African Police Service Act, 1995, after section 15D. She asked the State Law Advisor if there were any questions or concerns from their perspective.

The State Law Advisor noted that there may be some issues with the clauses that the Committee asked the legal team to look at again but that those questions would come up at a later date.

The Chairperson suggested that the meeting end so that the following day could be a fresh start.

Ms Kohler-Barnard commented that every time it was suggested to add ‘crime scene samples’ into the wording of the Bill there was lots of heads shaking in disagreement from the legal team side and perhaps it should be further discussed.

The Chairperson commented that the team was getting paid to advise and that they had to speak up in order to be effective. The legal team must raise their concerns as issues arise because according to the minutes they had no problem. SAPS had the same issue of not raising any issues until afterwards.

The legal team responded that they would reconsider the wording and come back with a conclusion that addressed their concerns.

The Chairperson reiterated that no matter which body they were representing they must raise their issues because the Committee was unable to read minds. The Chairperson requested that by Tuesday 30 August the sections be cleaned up and written in a way that was agreed upon by all parties.

The meeting was adjourned.

Following deliberations on the DNA Bill in Parliament last week, the Portfolio Committee on Police will be presented with what is hoped will be the Final version of the DNA Bill tomorrow, 30 July 2013. If this draft is accepted over the course of the next few days, it is hoped to be taken to each of the Committee Members’ Caucuses to vote.
SITA are also expected to revert to the Committee with answers to questions posed in respect of the implementation of an appropriate software solution to support the provisions of the DNA Bill in so far as they relate to the DNA Database.

Vanessa Lynch and Carolyn Hancock in the National Assembly, Old Chamber, in Parliament

Vanessa and Carolyn will be in Parliament this week to follow proceedings. Herewith the venues and times of the Committee meetings this week:

Portfolio Committee on Police, (National Assembly), [Criminal Law (Forensic Procedures) Amendment Bill, 2013: Committee Deliberations],
Tuesday, 30 July 2013: Old Assembly Chamber, Ground Floor, Old Assembly Building, 10:00
Wednesday, 31st July 2013: Old Assembly Chamber, Ground Floor, Old Assembly Building, 09:30
Thursday, 1 August 2013: Committee Room V454, Fourth Floor, Old Assembly Building, 09:30
Friday, 2 August 2013: Committee Room V454, Fourth Floor, Old Assembly Building, 09:30

Winter may still be in the air, but the Parliamentary Winter Recess is over and the Portfolio Committee for Police will resume what we hope will be the final deliberations on the DNA Bill as of tomorrow, Wednesday 24th July 2013. This week the Committee will focus on the overall software solution which is being proposed to manage the National Forensic DNA Database (NFDD). This week’s programme will run as follows:

WEDNESDAY, 24 JULY 2013
Portfolio Committee on Police, (National Assembly), [Briefing by the SAPS, SITA and Integrated Justice system on the status/timeframe/costs of Information Technology System in the support of the Criminal Law (Forensic Procedure) Amendment Bill, 2013; Criminal Law (Forensic Procedures) Amendment Bill: Committee Deliberations], Committee Room V227, Second Floor, Old Assembly Wing, 09:00

THURSDAY, 25 JULY 2013
Portfolio Committee on Police, (National Assembly), [Criminal Law (Forensic Procedures) Amendment Bill: Committee Deliberations], Committee Room V227, Second Floor, Old Assembly Wing, 09:00

The DNA Project will be in Parliament as always and will be reporting daily on the progression of this all important Bill through Parliament.

Next week we hope to see the Committee review the final draft of the DNA Bill which has now been prepared and sent to the Committee following the clause by clause analysis of the DNA Bill in the previous Parliamentary session.

Watch this space, ‘share’, ‘like’ and send us your comments which we always look forward to receiving.

with thanks

The DNA Project Team

Make the change: Become a Mandela Day Change-maker

Change was the gift given to all South Africans by Nelson Mandela.

Now it’s our turn.

In the spirit of Madiba and his vision to spread justice and freedom for all, by becoming ‘Mandela Day Change-makers’ we too can show that actions speak louder than words by giving to make a positive change to this country.

Whether as an individual, community, business, NGO or a government department, all you have to do on Madiba’s birthday,  July 18 is donate 67 minutes of your day to doing something good in any way you can. Nelson Mandela gave 67 years of his life to the struggle for social justice. Can you spare 67 minutes of yours to support a charity or serve your local community?

If you do not have the time to give back your 67 minutes, please consider donating R67 to The DNA Project to become a Change-maker: if only 1,000 people gave R67 each we could raise R67 000 which would provide at least 100  free DNA Awareness workshops to  first on crime scene responders. How will this be giving back to the greater good of South Africa? Well, for every additional person who can be taught about the importance of preserving crime scene evidence at a crime scene, which will enable Crime Scene Investigators to positively link the perpetrators to the crime, we can ensure that criminals are held accountable for their actions and prevented from committing further crimes, making our society a safer, better place to live.

How do I donate my R67?

Its easy, click here and simply follow the instructions.

Thank you for your support.

We are proud to announce that one of our most valued sponsors, The Change a Life Trust, has mustered together a team of 77 of South Africa’s leading business executives to ride in the sixth Change a Life Cycle Tour organised by Computershare which helps to raise funds to combat crime. These 77 cyclists will be joined by cycling champion Robbie Hunter and extreme sportsman Martin Dreyer as they traverse the ancient Nguni migration paths in September this year.

This year’s five-day 600 km cycle event will track southern Africa’s deep cultural roots, exploring the migration routes of the ancient Nguni people who formed the dominant African cultures of our region. The 2013 cycle tour is expected to raise R3,5 million, bringing to almost R20 million the total amount it has donated to anti-crime and youth development projects in South Africa.

The Change a Life Cycle Tour was established in 2008 in memory of Mike Thomson, a Computershare executive who was murdered at his family home in 2007, and it has developed a track record as one of South Africa’s leading fundraising tours. The Mike Thomson Change a Life Trust supports the management of crime in South Africa and seeks to stop crime where it takes root amongst South Africa’s youth. It funds five highly effective projects that have the common objective of combating crime.

Some of the business leaders who will take part in this year’s event from 7 to 12 September are Nicky Newton-King, CEO of the JSE, Nic Kohler, CEO of Hollard, Alan Hutcheson, CEO of Tracker, Albe Geldenhuys, Chairman of USN, Hoosain Karjieker, CEO of M&G Media Group, Diane Radley, CEO of Old Mutual Investment Group South Africa, Thabo Leeuw, executive director of Thesele Group and David Cleasby, Financial Director of Bidvest.

Funds from the Change a Life Cycle are channelled into five anti-crime initiatives – The DNA Project, which is advancing the use of DNA evidence in bringing criminals to justice; the Martin Dreyer Change a Life Academy, which trains disadvantaged youngsters in rural KwaZulu Natal to become professional athletes; iChoose to Change a Life, which provides leadership training to teenage offenders so they can launch anti-crime projects in their communities; the Change a Life Kushido Karate-Do, which inspires disadvantaged children to become productive members of society through the discipline and power of karate; and Nemato Change a Life which gives disadvantaged youngsters in the townships of Port Alfred the mindset, skills, knowledge and support to become successful in life.

Stan Lorge, CEO of Computershare and Trustee of the Change a Life Trust with Founder of The DNA Project, Vanessa Lynch

Computershare CEO, Stan Lorge says with cycling the fastest growing executive sport in South Africa, there is enormous opportunity to harness the power of cycling for good: “As we set out once again, it is important for us to remember exactly why we do this: to fight crime and provide alternatives and hope through our five projects and their incredibly dedicated and inspiring project owners.”

The Nguni tour will start at the Royal Swazi in the Ezulwini Valley near Mbabane and participants will cycle 220 kms to Mkuzi. From Mkuzi it is 145 kms to Sodwana Bay with a return leg the following day of 185 kms over the Lubombo mountains to Mkuzi. The last day of cycling will see the return of the time trial, which will include a challenging 20 km ride in the Lubombo mountains.

The idea of exploring the Nguni ancestral pastures of Maputaland was a natural choice for the 2013 Change a Life Cycle. This beautiful region of South Africa boasts several pristine game reserves, wetland parks and marine reserves – ideal for cycling and fishing. But it is also one of the least developed and most poverty stricken rural communities in South Africa and Change a Life will involve the local communities in an effort to add value to their lives.

The 2013 Change a Life Cycle has five primary sponsors in Hollard, the JSE Limited, Sun International, UTi and Vodacom. Computershare matches rand for rand all funds raised from cyclist entry fees. For the third consecutive year, 100% of the cyclists’ entry fees and the matched funds will be channelled directly into the recipient projects with all costs of the cycle tour funded by sponsorships.

The following article was published in The Times yesterday. I was disappointed by the negative comments in the article, as my experience at the 1^st National Forensic Science Conference, to which I was invited to make a presentation, had been so positive. I invite you to read the article along with a response I have submitted to the publication.

– Carolyn –

Police forensics blow own horn

Jul 3, 2013 | AARTI NARSEE

South Africa’s forensic services are up there with the best in the world, the police have said.

Researcher runs tests in a lab | Image by: Schalk van Zuydam (Times LIVE)

Major-General Adeline Shezi, head of quality management for forensic services, said this country’s forensic services “are one of the top five in the world”.

She was speaking at the first national forensic services conference, in Pretoria yesterday.

The conference is aimed at dispelling myths about forensics, discussing successes and problems in fighting crime, and learning about the latest technology in this “evolving environment”.

(more…)

These last three weeks have seen the Parliamentary Portfolio Committee on Police hard at work deliberating over and debating the various provisions of the DNA Bill, listening to various Civilian Society Groups (The DNA Project included) present their opinions on the DNA Bill and why it should be passed as well as hear from a selection of Government Departments as to how they intend to assist the FSL (Forensic Science Lab) in ensuring the successful implementation of the DNA Bill post its enactment.

Vanessa Lynch and Carolyn Hancock in the National Assembly before presenting to the Portfolio Committee

Initial discussions around the DNA Bill were concluded last week as Parliament broke for their winter recess. These discussions will resume on the 24 July 2013, at which time a new, cleaned up version of the DNA Bill is expected to be presented by the State Legal Advisor to the Committee, taking into account all of the considerations debated by and presented to the Committee over the last few weeks.

In a nutshell, these are some of the issues raised as well as an indication of some of the provisions which we should expect to appear in the final draft of the DNA Bill:

1. Specific members of the Police force will be nominated and thereafter trained by medical practitioners to take buccal swabs (‘non intimate’ DNA reference samples) from arrestees of schedule one offences.

2. Convicted offenders will have their DNA samples taken by medical practitioners or registered nurses working at the relevant Correctional Services facility in which they have been imprisoned. This provision will be retrospective.

3. All reference samples will be destroyed after a DNA profile has been obtained and entered onto the DNA Database. Crime Scene samples, being crime scene evidence will not be destroyed.

4. Convicted Offenders’ DNA profile’s will be held indefinitely on the DNA Database.

5. Arrestees’ DNA profiles will be removed within three months after that person has been acquitted or after their conviction has been set aside or within three years if the prosecution does not proceed with the case at that time. If the arrestee’s case results in a conviction, that profile will be migrated to the Convicted Offenders’ index.

6. An additional Index, the ‘Missing Persons and Unidentified Human Remains Index’ will be added to the five Indices already proposed in the Bill (namely the Convicted Offender, Arrestee, Elimination, Crime Scene and Volunteer Indices).

7. A National Forensic Ethics Oversight Board will be formed which will be responsible for Ethical oversight as well as implementation of the Bill. The composition of this Board is still to be decided but will not be weighted in favour of Government, but rather in favour of Civilian Society.

8. Strict Penalties to be imposed (maximum of 15 years imprisonment without the option of a fine) for any abuse or misuse of any information entered onto the DNA Database.

9. The Fingerprint and new DNA legislation must be aligned.

10. Post conviction testing to be legislated for exoneration purposes.

The beautiful Old Assembly Chamber in the original National Assembly Building , Parliament, Cape Town

Issues which are still to be determined and discussed:

i. Who will be the custodian of the Database?

ii. Which software solution will be implemented to manage the DNA Database [SITA vs CODIS?];

iii. The composition of the Forensic Ethical Oversight Board and the appointment of its Chair;

iv. Details of additional Implementation plans and strategies post enactment;

v. Familial searching: a specific exclusion except when tracing missing persons;

vi. Forensic Awareness programmes.

For a detailed account of what was discussed in the various Committee meetings please click on the below links:

DAY ONE- PUBLIC HEARINGS DNA BILL 11 JUNE 2013

DAY TWO – PUBLIC HEARINGS DNA BILL 12 JUNE 2013

Discussions DNA Bill (1) 18 Jun 2013

Discussions DNA Bill (2)  19 Jun 2013

Discussions DNA Bill (3) 20 Jun 2013

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:

Civilian Secretariat for Police: Policy on the Establishment and Administration of a National DNA Database

Implementation of the DNA Bill (Draft)

Criminal Law (Forensic Procedures) Amendment Bill, 2013 DNA Bill

Presentation: Briefing by SAPS on Implementation Plan for the Criminal Law (Forensic Procedures) Amendment Bill

Implementation of the DNA Bill

Summary:

Chairperson of the Portfolio Committee on Police, Annelize van Wyk discussing the DNA Bill with Etv news.

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.

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