Criminal Law (Forensic Procedures) Amendment Bill (B2-2009): Implementation plans

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10 November 2009
Chairperson: Ms L Chikunga (ANC)
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Meeting Summary

The Committee was briefed by the South African Police Service (SAPS) and the Department of Justice and Constitutional Development (DOJ) on the implementation of the Criminal Law (Forensic Procedures) Amendment Bill (the Bill), following on the submissions made at the public hearings. The submissions related to the taking of blood samples and fingerprints against suspects’, DNA matters, the use of the term “speculative search”, the taking of body prints by police officials, and the consideration of buccal swabs and fingerpricks as intimate samples that would need to be taken by a medical practitioner. Further requests related to definitions for “any court”, “of value to the investigation”, and control of samples, the possible abuse of suspects around adequacy of clothing, treatment of children, preconditions before a medical practitioner could take a sample, and destruction of samples. There were also overviews given of the principles behind DNA analysis, and suggestions that provision be made for mention of other intoxicants, not only alcohol. Suggestions for changed wording to ensure consistency had been made.

The Department of Justice had made suggestions for replacing Clause 4 of the Bill, which was tabled, and the submissions of this Department in respect of the proposed changes to the Bill were also outlined.

Members asked why there were references still being made to DNA, in view of the splitting of the Bill, and also questioned why the comments of the Committee in regard to references to non-intimate samples did not appear to have been taken into account by SAPS in its presentation. Members believed strongly that all possible safeguard should be put in place when dealing with children, and that this should not be left to the Child Justice Act. The Department of Justice pointed out that one of the submissions was still relating to old legislation and this would be corrected for the Committee. Members asked how accurate replacement of incorrect fingerprint information would be done for the Department of Transport and Home Affairs databases, pointed out that gaps in the legislation must be filled, and asked about retention of fingerprints.

The Office of the Criminal Justice System Review outlined the background of the OCJSR, its approach relative to the Bill, the Bill implementation, the OCJSR task team composition, the phased implementation summary, and relevance to other Criminal Justice System (CJS) interventions. Members wondered if there were not two parallel processes that were not allied closely enough with each other, in terms of implementation, asked how the access to other databases would be arranged, whether there was likely to be a problem with the proposed upgrades to the Department of Home Affairs’ system, and asked that regular status updates must be given. Members were concerned that the natural rise in costs had not been accounted for, questioned the budget, and what it included, and noted that the full implementation was dependent on the financing being given. Members requested detailed plans showing implementation dates, and who would be paying for what, as well as better interaction between the entities.

Meeting report

Criminal Law (Forensic Procedures) Amendment Bill (the Bill): Further deliberations
The Chairperson stated that the Committee wanted a clear design of how the Criminal Law (Forensic Procedures) Amendment Bill (the Bill) was going to be implemented, with timeframes. The Bill would assist Cluster Departments in the integrated fight against crime.

South African Police Services (SAPS) submission

Assistant Commissioner Dr Tertius Geldenhuys, Head of Legislation: Legal Services, SAPS, stated that the first submission on the bill was from the Medical Rights Advocacy Network (MERAN) and raised issue with the taking of blood samples and fingerprints against suspects will. The SAPS held the view that, in view of Section 36 of the Constitution, the existing position was justified.

The Southern African Society for Human Genetics (SASHG) submissions related solely to DNA related matters.

The South African Gunowner's Association (SAGA) raised issues with the use of the term 'speculative search' and it was clear to SAPS that, even if used internationally, the term was creating confusion. For this reasons SAPS suggested that it either be changed to 'comparative search or 'matching search'.

The Law Society of South Africa (LSSA) objected to police officials taking bodyprints, and suggested that health officials take these, but definition of a healthworker was provided. They also objected to the storage of information on acquitted persons. SAPS disagreed with The Law Society's position on body prints, as it would create an unbearable burden on 'healthworkers'. Forensic DNA consultants were concerned about training of police officials, but SAPS felt that the SAPS was prepared, in terms of offering training courses in sample handling by its staff.

The Centre for Constitutional Rights (CCR) felt that buccal swabs and fingerpricks should be considered as 'intimate samples' under the Bill, and therefore should only be taken by registered health practitioners. SAPS felt that these samples should be allowed to be taken by trained SAPS officers. Whilst it understood the CCR’s concerns, it felt that the concerns over contamination and disease exposure could be addressed by appropriate training in sample taking.

The CCR had asked for a definition of the term 'any court'. SAPS disagreed that this was necessary. The term was used throughout the legal system and was clearly defined.

The term 'of value to the investigation' was criticised as being too vague and allowing for abuse. However, SAPS stated that the term allowed for the exclusion of suspects by sampling, and that the use of this term was very clear in the Bill.

There were concerns raised over the control of samples. SAPS stated that control would obviously rest with SAPS and the Divisional Commissioner for Criminal Records and Forensic Science, as mandated by the National Commissioner. Comm Geldenhuys felt that the concern was unwarranted as there were proper controls.

There were concerns that the situation in the Bill may allow for police officials to abuse suspects in terms of adequacy of clothing. SAPS felt that this concern was completely unwarranted as there were strict guidelines and regulations for suspect parades, with a range of people being involved, including the suspects’ legal representative.

The treatment of children was raised as another possible area of concern. SAPS stated that despite the distinctions made between levels of children, the issue of consent was not really relevant to the provisions of the Bill.

A range of preconditions before a medical practitioner was allowed to take a sample was proposed. SAPS felt that these preconditions were too cumbersome and would not be feasible.

In terms of the destruction of samples CCR had suggested that if a person was not convicted, the wording of Clause 6(a) was ambiguous and could be interpreted as stating that either the information on fingerprints, or the actual prints, could be destroyed. SAPS agreed and would change the wording to reflect that both needed to be destroyed.

The DNA Project stated that a joint task team between the Department of Home Affairs (DHA) should be constituted to overview IT strategies for the synchronisation of the Home Affairs National identification System (HANIS) and the Automated Fingerprints Identification Systems (AFIS). SAPS agreed with this as the ultimate goal was to have one singular government database.

Dr Carolyn Hancock's submission provided an overview of the principles behind DNA analysis and was very informative.

Dr Ryan Blumenthal's submission stated that Section 37 (2)(b) needed to be amended to include other intoxicants besides alcohol and that the Bill should specify that appropriate sample containers needed to be made available to doctors. SAPS disagreed, as the wording of the Bill was appropriate for considering intoxicants besides alcohol, and sample containers were already used by hospitals.

The National Prosecuting Authority (NPA) stated that the definition of bodyprints was unnecessarily restrictive and should be extended to any part of the body. SAPS agreed with this submission.

NPA also suggested that all references to the word 'crime' in the Bill should be replaced by the term 'offence' to ensure legal continuity with other legislation. SAPS acknowledged this point.

Presentation by the Department of Justice & Constitutional Development (DOJ)

Mr Johan De Lange, Director, DOJ, went through the document that contained a suggested replacement to Clause 4 of the Bill. A summary of the DOJ responses to submissions that proposed changes to the Bill was also outlined (see attached document for details)

Mr G Schneemann (ANC) asked why the question of DNA kept on coming up in all the submissions and briefings. The “split Bill” that was currently under discussions contained no references to, and was consequently not concerned with, DNA analysis.

Mr Schneemann disagreed with the submissions made about the treatment of children. He thought that this issue needed to be given serious consideration. He said that the comments by the DOJ that these issues would relate to the Child Justice Act (CJA) that would come into effect in 2010 were noted, but more discussion around the issue was needed.

Dr Geldenhuys replied that the CCR had asked for the Bill to make provision for the presence of a judicial official, social worker or member of the SAPS Child Unit when the fingerprinting of a minor was done. This was onerous. Fingerprinting was not an invasive procedure. The Child Justice Act did have specific provisions that dealt with the treatment and detention of minors.

Mr V Ndlovu (IFP) stated that even if SAPS felt this was impractical, it was something that needed to be done. He agreed with Mr Schneemann and disagreed with Dr Geldenhuys.

Ms D Kohler-Barnard (DA) agreed with Mr Schneemann, and added that not having another person – such as those detailed above – present would be a recipe for disaster. A child needed to have the protection of an adult in order to have his or her rights protected. She asked why the submission was still referring to intimate and non-intimate samples. The Chairperson had taken a decision in the previous meeting that both buccal swabs and fingerpricks for blood samples would also be considered intimate samples, and as such the distinction was no longer relevant. A confirmation of this resolution was asked for.

Mr De Lange stated that he would provide the Committee with information on how the Child Justice Act related to the Bill. The Criminal Procedure Act (CPA) still applied in some circumstances to children, but would be overruled by the Child Justice Act once it came into force. He added that some of MERAN's submission referred old cross-referenced Acts, which he would correct.

Ms A Van Wyk, ANC, asked how accurate replacement of incorrect fingerprint information on the databases would be ensured, as both the Department of Transport and Department of Home Affairs (DHA) would need to be involved in the administration of their databases. The inconvenience caused to the person who was wrongly identified as a suspect would be considerable.

Dr Geldenhuys replied that the issue could be resolved easily.

Ms Van Wyk stated that there was a gap in legislation and Dr Geldenhuys needed to attend to it.

Mr M George (COPE) stated that SAPS did not explain the relative merits of a medical practitioner or a police officer taking non-intimate samples.

Mr Schneemann raised a point of order, stating that since the Committee had agreed to take out the term 'non-intimate' the question was no longer relevant.

The Chairperson replied that the point of order was correct if Mr George was referring to non-intimate samples.

Dr Geldenhuys accepted that the Bill was no longer going to refer to non-intimate samples.

Mr P Chauke (ANC) interjected that SAPS should take decisions made by the Committee very seriously.

Mr George said that the Chairperson had made the point of view that non-intimate samples should be removed, but added that to say that the Committee had actually taken a resolution on that was a distortion.

The Chairperson replied that the Committee took a decision to split the original Bill, and that in that spirit the differentiation between non-intimate and intimate samples was considered irrelevant, as this differentiation was directly related to DNA analysis.

Dr Geldenhuys reiterated his apologies.

The Chairperson asked that the issue of retention of fingerprints by SAPS, in respect of individuals not actually convicted of an offence, be looked at by the State Law Advisors. She noted that it seemed that they could remain on the database indefinitely.

Dr Geldenhuys replied that the Bill intended to create a situation where SAPS accessed HANIS. In this case, the person would be on a government database, irrespective of whether that person had or had not committed a crime. The mere fact that people’s prints were on a database did not mean they were guilty of anything.

Presentation by the Office of the Criminal Justice System Reform (OCJSR)
Adv Pieter du Rand, Chief Director, Court Services, DOJ, tabled and explained his presentation. This outlined the background of the OCJSR, its approach relative to the Bill, the Bill implementation, the OCJSR task team composition, the phased implementation summary, and relevance to other Criminal Justice System (CJS) interventions.

Mr Chauke stated that, in light of the SAPS presentation, it seemed that there were two parallel processes occurring, that were not talking to each other.

Adv Du Rand replied that there was a need to clarify this. He stated that the OCJSR had dealt with SAPS at the National level through Deputy National Commissioner Anwar Dramat, who had sanctioned the approach. The OCJSR was pulling together everything and providing a holistic approach which was a synthesis.

Dr Geldenhuys added that this was correct and SAPS was completely in agreement.

The Chairperson stated that the Committee did not doubt that there was consultation in the drafting of the Bill, but the issue at hand was the implementation of the Bill. When SAPS was asked to provide the Committee with an implementation plan, it had provided a presentation, based on a draft document, which highlighted communication as a problem. Two weeks ago Assistant Commissioner Marlene Meyer of SAPS had stated that SAPS could not implement the Bill with its current budget. Due to these contradictions, the Committee had seen the need for a task team composed of all the relevant role-players to give the Committee a briefing from all sides. It appeared that this was what the OCJSR was trying to do.

Ms Kohler-Barnard referred to the OCJSR Implementation document and asked what were the provisions for SAPS’s access to DHA databases that had been lifted. There seemed to be major hurdles in creating a search capacity for HANIS. The issue of whether proposed upgrades to the HANIS infrastructure in February 2010 would constitute a setback to interface implementation was not yet known.

Mr Willie Scholtz, OCJSR, replied that the Bill would remove constraints imposed on SAPS in terms of access to HANIS.

Adv Du Rand added that the Bill provided an actual legal framework for SAPS’s access to HANIS.

Mr Scholtz stated that the HANIS upgrade would increase capacity and efficiency. Currently HANIS had no latent search capacity like AFIS, and so this would need to be phased into the system.

Ms Van Wyk agreed about the contradictions and stated that regular status updates on the progression of the implementation of the Bill were necessary. The budget presented by the OCJSR was the same as that presented by SAPS. Both failed to take into account the natural rise in costs over time. According to SAPS and the State Information and Technology Agency (SITA) the Bill could not be implemented with existing budgets.

Adv Du Rand acknowledged that the natural rise in costs was not accounted for but that it subsequently would be, as the OCJSR had also identified this omission.

The Chairperson asked if the budget discussed in the presentation was the SAPS’s budget alone, or that of all parties involved.

Adv Du Rand replied that the budget was mainly SAPS and that most implementation aspects were SAPS-oriented. It was clear that there was not enough communication between departments, but the OCJSR did not have a mandate to enforce discussion between departments as there was a forum to deal with this issue.
Mr Scholtz said that the R3 billion amount was made available by the Minister of Justice & Constitutional Development, provided he approved the expenditure.

Mr Sello Mmakau, Acting Deputy Director General, Information Services Branch, Department of Home Affairs, stated that there was a forum in the Integrated Justice System (IJS) that included discussions around budgets. There was a budget for IT integration and interface. The DHA had already designed an interface system that was undergoing testing and was projected to be operational by December. Issues around searches were due to the fact that HANIS only had 10 fingerprints on record and thus faced compatibility issues with AFIS. Challenges around upgrading did exist due to cost implications.

Ass Comm Meyer stated that the SAPS budget was not sufficient, and that the implementation of the Bill was only possible if the R3 billion amount was made available. After consultation with SITA over the past four days it became evident that implementation hinged upon funds availability.

Adv Du Rand replied that the funds were ring-fenced for this purpose and thus there was no need to worry about receiving them from SAPS part.

Ms Van Wyk stated that these comments affirmed the need for continuous oversight and regular status reports.

Mr George agreed with Ms Van Wyk.

Ms Kohler-Barnard stated that the previous week's presentation by SAPS indicated two options where the DHA would be required to pay part of the funding, and added that there needed to be a focus on who was paying, and for what.

The Chairperson stated that a detailed plan of implementation was needed so that the Committee would be able to track exactly what should be happening at any given time, without the contradiction inherent to the previous presentations of the Bill.

Adv Du Rand replied that they would take back this information to the Cluster. He acknowledged the need for improved interaction between entities. The OCJSR could only assist and facilitate dialogue as they did not have cross-cutting departmental mandates. A detailed plan was being finished, which would be forwarded to the Committee. If the Committee wished to start implementing the bill immediately there were enough existing building blocks to start doing so. The OCJSR had taken to heart what the Committee had said and would act on it.

The Chairperson replied that the Committee seemed to have come further in terms of hearing concrete and co-ordinated implementation plans, compared to the previous meetings, but that further improvement was needed as speculation needed to be taken out of the equation.

The meeting was adjourned.

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