Criminal Law (Forensic Procedures) Amendment Bill: State Law Advisor's briefing on split and re-draft of Bill

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27 October 2009
Chairperson: Ms S Chikunga (ANC)
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Meeting Summary

The Criminal Law (Forensic Procedures) Amendment Bill (the Bill) had previously been considered, earlier in 2009, by an ad hoc Committee, which had decided that there were a number of areas which raised the potential for Constitutional challenge. The Portfolio Committee on Police had thereafter looked again at the Bill and had decided that one option would be to split the Bill and process it as two separate bills. The State Law Advisors commented upon how this could be achieved. The effect of the new draft would be to remove all references from the Phase 1 Bill, to DNA, DNA analysis and DNA profiles, so that the new draft would not contain any clauses proposing the establishment or operation of the proposed National DNA Database of South Africa. The Phase 1 Bill would enable the Criminal Record and Forensic Science Services division of the South African Police Service to have access to databases of the Department of Home Affairs, Department of Transport or any State department in the national, provincial or local sphere of government, for the purpose of compiling records. The Bill would deal with the acquisition and storage of non-intimate samples, photographs, profiles, and foot and finger prints. In the first draft, the taking of intimate and non-intimate samples would now fall solely within the competency of a registered medical practitioner or registered nurse. There would be consequential amendments to the Firearms Control Act and the Explosives Act.

Members asked questions regarding the appropriateness of the word ‘forensic’, in light of the removal of all reference to DNA material in the first phase. Members also asked for clarity on the provisions in regard to children, and how far the processes were in obtaining information from other departments. Members also asked what would happen if a suspect refused to cooperate, but the State Law Advisors commented that this was covered by other legislation.

The Department of Justice commented that it had not had a chance to comment on the proposals to split the Bill, nor had it made any input into the new draft, and asked for the opportunity to do so. The Committee noted that anyone would be given the opportunity to comment, but there was clearly lack of communication between the Portfolio Committee on Justice and the Department of Justice, and stressed that this Committee would not be bullied by any Executive members in the way that it performed its work. The Committee would meet again to discuss the draft in more depth.

Meeting report

Criminal Law (Forensic Procedures) Amendment Bill (the Bill): State Law Advisor’s presentation
The Chairperson of the Portfolio Committee briefly outlined the background to this meeting. She noted that when the ad hoc Committee had considered the Criminal Law (Forensic Procedures) Amendment Bill (the Bill) early in 2009 there were a number of potential constitutional challenges, which included issues around fundamental rights of individuals, which incorporated the right to dignity, the right to privacy, the right to be presumed innocent, the right to bodily integrity, right to equality, and rights of children. The Committee mooted that one way to address this might be to split the processing of the Bill. One part would then deal with the powers in respect of bodily features, such as fingerprints and taking of non-intimate samples from accused and convicted persons, and this could probably be finalised by November. The other part, dealing with DNA samples, would be put on hold for the time being while the issues were further investigated and addressed, and could be finalised in 2010. She commented that it would be futile to try to rush a process that would not pass Constitutional muster.

Mr Phil Hercules, State Law Adviser, Office of the Chief State Law Adviser, said that the essence of the Phase 1 approach was that it would exclude all references to DNA. It would thus essentially deal with the powers with regard to the obtaining of fingerprints, footprints and photographs from accused and convicted persons. The non-intimate samples would now only be taken by medical practitioners. All reference to children in the first phase of the Bill would be deleted.

Whereas the previous Amendment Bill had proposed the establishment of the National Database to store all DNA related samples, the new proposed draft Bill Phase 1 would only talk of the need to have co-ordination with other departments, for instance, access to the E-Natis systems of the Department of Transport and the HANIS system from the Department of Home Affairs,

He noted that in the Phase 1 Bill, Section 36B of the Criminal Procedure Act (CPA), which dealt with fingerprints and non-intimate samples of accused and convicted persons, would be amended, to ensure compliance with the new draft’s provision that a medical practitioner or a registered nurse would take both intimate and non-intimate samples. The provision relating to the retention of non-intimate samples, and information derived from such samples, would be removed from the draft. Clause 4 of the proposed draft would therefore seek to retain the current position under Section 212 of the CPA, which said that certain facts could be proved by affidavit or certificate. Clause 5, which sought to amend Section 225 of the Criminal Procedure Act, dealing with evidence of prints or bodily appearance of accused persons, would now revert back to its original state, and would not incorporate any reference to DNA samples.

Clause 6 had affected the South African Police Service (SAPS) Act, as it dealt with storage of fingerprints, body-prints and photographic images of persons. It would be retained in its current format, except for a removal of the reference to Chapter 5B (which had dealt with the establishment, administration and maintenance of the National DNA Database of South Africa under Clauses 15D-15S) The entire Chapter which spoke to the National DNA database will now be removed. Clause 7, which dealt with the consequential amendments to Section 1 of the Firearms Control Act, also would be amended by the removal of the reference to the National DNA database and DNA analysis. This clause would extend the definition of an intimate sample to include pubic hair. Speculative searches would now be limited to fingerprints and body prints.

Clause 8 provided for consequential amendments to Section 113 of the Firearms Control Act. The new proposals for this clause would now align the powers of the police to take prints and samples with other new provisions which allowed only medical practitioners and registered nurses to do so. Other provisions that would be removed and which related to similar issues, would include issues around retention of intimate and non-intimate samples or information derived from such testing, the storage of those samples and references to National DNA database. The same procedure would apply under Clause 9, which spoke to the consequential amendments to certain sections of the Explosives Act. Again, the aim would be to remove any reference to the DNA database, DNA and DNA analysis,  and to extend the definition of intimate sample to include pubic hair. It would only allow speculative searches for fingerprints and body prints. Clause 10 also allowed for the alignment of the provisions in the legislation with the new proposed amendments.

Rev K Meshoe (ACDP) asked what the relevance of the word 'forensic' was in the context of the title of the Bill, and in particular the provisions under the implementation of the first phase. He said that this word now seemed to be misplaced. The first phase was effectively now leaving out some of the core elements of forensic procedures.

Mr Hercules said that the Committee could decide whether the word ‘forensic’ was still relevant. However, he pointed out that Chapter 5A of the SAPS Act spoke to the storing of information, including fingerprints and other non-intimate samples, and said that this must be located within the division of Criminal Record and Forensic Science Services, which was the reason for the inclusion of the word in the title.

Ms D Schaffer (DA) asked the State Law Advisors to repeat what they had said about the provisions of the Bill being amended with regard to children.

A State Law Advisor from the delegation clarified that the provisions affecting children had been put on hold. The drafters, responding to concerns of the ad hoc Committee, had realised that the provisions relating to children were possibly in conflict with other pieces of legislation dealing with the rights of children, and it was important to ensure that the provisions in this Bill were in harmony with other pieces of legislation.

Ms D Kohler-Barnard (DA) said her major worry on the provisions of the Bill was that not much emphasis was placed on the safeguarding of information or samples stored. She said that there were many reports about evidence being planted by police officials to achieve convictions. She said there were too many loopholes in the way the Bill had been drafted, including failure to prioritise offences which needed to have samples of individuals taken. Lastly, she said it would help to have a vetting of some sort on the individuals who may have access to database system.

Ms A Van Wyk (ANC) warned that Ms Kohler-Barnard was veering off the road. She asked the Chairperson if members were allowed to ask questions that had nothing to do with the splitting of the Bill.

The Chairperson said that Ms van Wyk had raised a valid point. He asked that Members direct their attention, at this stage, to issues that dealt with the split and the current drafting of the Bill as related to phase 1.

Mr P Chauke (ANC) wanted to know what stage had been reached in the efforts to facilitate the issue of sharing of database information with other Departments, such as Home Affairs and Transport.

Mr Hercules said that as far as he was aware, there had been interdepartmental consultations on the issue and the process was moving smoothly. He did say, however, that the practicality of this initiative depended largely on the cooperation of the departments concerned.

The Chairperson said the Portfolio Committee was scheduled to meet with officials from both the Department of Transport and Home Affairs to hear from them how this process would be implemented.

Mr M George (COPE) said he noticed there were officials from the Department of Police present at the meeting. He enquired whether they would be able to answer any questions on the splitting of the Bill and the practicality of implementation of the split legislation.

The Chairperson said it was up to the Department’s officials whether they wished to comment at this stage, but they were not obliged to do so, as they would have a say when they were called to the Committee themselves. 

Rev Meshoe noted that the amended new provisions said nothing about what may happen when a person refused to cooperate. He wanted to know whether any amount of force may be used to have non-intimate samples taken from a suspect who refused to co-operate.

Mr Hercules said there were provisions in the Criminal Procedure Act that dealt with refusal to cooperate, and those would remain applicable to cases where challenges of that nature arose.

The Chairperson asked for clarity with regard to non-intimate samples, in particular with reference to pubic hair.

Mr Hercules noted that the issue of pubic hair and hair in general was made subject to Section 37(1)(c) of the CPA, because of the possibility of deriving DNA material from such samples.

Mr Deon Rudman, Deputy Director-General: Legislative development, Department of Justice, noted that his Department had not been informed of the new changes with regard to splitting of the Bill. This Department was one of the key stakeholders. He requested the Committee to take into account that the Department may have wanted to make input, but had not been given the opportunity to do so. He asked that the Committee thus give the Department time to consider the proposals presented by the State Law Advisors.

Mr Chauke noted that it was quite proper that the Department put forward this request, but, given that the Portfolio Committee on Justice and Constitutional Development should have known about the proposed new amendments following the decision to split the Bill, the Department and the Portfolio Committee on Justice should have coordinated with each other. It would be unfair it this Portfolio Committee were to be bullied by the Executive.

The Chairperson agreed with Mr Chauke, saying the Committee would take any input from anyone, but it would not be bullied by the Minister or anyone else from doing its constitutional work. Nothing decided to date would be changed, although input would be welcomed from anyone.

The meeting was adjourned.


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