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.

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.