The Legal Services Division of the South African Police Service (SAPS), the State Law Advisors and officials from the Department of Justice and Constitutional Development (DOJ) took the Committee through the latest draft of the Criminal Law (Forensic Procedures) Amendment Bill. It was suggested that the relevant Minister should be the Minister of Justice and Constitutional Development. The presentation concentrated mostly on clauses and proposed new Sections that dealt with printing (fingerprinting and body-part printing).
Changes made to the Criminal Procedure Act included the removal of definitions and distinctions between non-intimate and intimate samples. Amendments were outlined to Sections 36C, consequential amendments to the term ‘speculative search’, the reinsertion of the term ‘blood’ in Section 37(1)(c), and re-evaluation of 37(5). Section 212 needed to be amended to allow for an expert in the field of the type of evidence gathered to provide an affidavit verifying the evidence, without necessitating an actual court appearance, unless so requested by the court. The insertion of Chapters 5A and 5B into the South African Police Services Act (SAPS Act) would provide for references to the storage and use of fingerprints and photographs. Amendments were also effected to Section 1 and Section 113 of the Firearms Control Act, and similar amendments were also made to the Explosives Act.
Members firstly discussed the amendments being effected to the Criminal Procedure Act. They agreed that the definition ‘body-prints’ needed to be broadened, but noted that there was discretion by the Courts to allow prints to be taken if deemed relevant to the case. The State Law Advisors were asked to place new suggested wording before the Committee again. Members agreed to substitute the term ‘comparative search’ for ‘speculative search’. Members discussed whether the Bill should attempt to prescribe to departments how each should be taking their relevant prints, but conceded that since there would not be uniformity for some time, this Bill should rather only prescribe for SAPS. Members questioned whether those arrested for minor traffic offences would need to be printed, and discussed whether the clause should read ‘a police official may’, but took the point made by SAPS that providing for prints to be taken in all cases would close the current loophole that prints were not always being taken in respect of certain offences. A solution suggested by SAPS was that anyone committing a Schedule 1 offence would be printed, whilst the National Commissioner could decide which other offences warranted printing. The DoJ flagged the issue of possible duplications in Section 36B(1), and would report further.
Members discussed at some length whether it was necessary to provide for retention of prints, since SAPS would be able to access prints from other departments’ databases. However, in view of the fact that the access was not open-ended, they finally agreed that the prints of those found guilty would be kept indefinitely, whereas the prints of those found not guilty, or never charged, would be destroyed ‘immediately’, which was to be defined as within three months. Members would be discussing the issues around retention of children’s’ prints the following day. It was agreed that the new Section 36B(1)(a) would be renamed as Section 36B(1). The words ‘the information derived from such samples’ should be removed from Section 36B(5)(c). Members discussed whether to include a maximum sentence, and whether it was necessary then also to prescribe a minimum sentence, but decided to leave the Bill as drafted to convey the seriousness of the crime. In relation to the new Section 36C(2)(a), the term ‘them’ was to be removed and Section 36C(3)(a) must be amended to reflect the Committee’s earlier decision. The term ‘blood samples’ was to be reinserted, from page 12 of the draft onwards. Page 14 contained a re-insertion of subsection (5), to give effect to the Committee’s decision that the prints of innocent individuals be destroyed. Although Members commented that Section 37(1)(b) was broad, it had nothing to do with printing or DNA analysis and should not be tampered with. It was agreed that Section 37(2)(a) should replace the word ‘must’ with ‘may’. The phrase ‘or the information derived from such samples’ should be deleted from Section 37(6)(b). Members noted that Section 212(a) now provided for a mechanism that would cut out the need for experts to be summoned to give evidence in court on non-disputed matters, and the term ‘body prints’ should be included under paragraph (a)(iv).
Members agreed with the amendments to the SAPS Act, the Firearms Control Act and the Explosives Act.
Members then debated general issues. They agreed that national databases, rather than those of, say, Traffic Departments, should be used, so references to provincial and local government would be removed from definitions, and the definitions would also be linked to security issues. Members noted that they would be taking a briefing on the Child Justice Act prior to making a final decision on Section 37, and also noted the decisions of the European and UK courts on retention of children’s prints. Members were happy with the public participation in the Bill. They noted that the Committee must still be briefed on the financial implications of the Bill and the safeguards around database access.
The Minutes of Committee meetings of 2, 12, 17, 23 and 30 June 2009 were adopted with amendments.
Criminal law (Forensic Procedures) Amendment Bill (B2-2009): Presentation by South African Police Services (SAPS)
Dr Philip Jacobs, Assistant Commissioner: Legal Services, South African Police Services (SAPS), stated that there were two documents available, one of which with footnotes, which would subsequently be referred to as Document ‘A’. This document was based on a draft of the Criminal Law (Forensic Procedures) Amendment Bill (the Bill), prepared by the State Law Advisors (SLAs) before the Bill was split between those portions referring to DNA, and those not referring to DNA. Footnote 1 of the document questioned whether the Minister concerned should be The Minister of Police, but the SLAs felt that it should be left under the ambit of the Minister of Justice & Constitutional Development. Clauses that dealt with the retention of prints were flagged as needing input from the Committee in order to decide whether they should be retained.
Dr Jacobs took the Committee through the new Bill. The definition and distinctions between non-intimate and intimate samples were removed from the proposed new Section 36A of the Criminal Procedure Act (CPA), 1977. Further references to intimate samples were also removed from the Bill. The National Prosecuting Authority (NPA) felt that the definition of ‘body-prints’ was too restrictive and needed to allow for printing of whichever part was needed. Amendments to the proposed new Section 36C included the possibility of limiting the ability for taking of prints of groups of persons suspected of committing an offence on the basis of the seriousness of the offence. Consequential amendments were also necessary with regards to the term ‘speculative search’, if the Committee decided to change this term.
Continuing with the Criminal Procedure Act, Dr Jacobs noted that the Section 37(1)(c) needed to have the term ‘blood’ reinserted, as it would allow police to continue with current practices of blood sampling until the DNA component of the Bill was completed, thereby preventing a lack of legislative support for police to continue current practices during the interim period. Subsection (5) needed to be re-evaluated by the Committee, in light of how it felt the prints of innocent or acquitted people should be treated.
Section 212 of the CPA needed to be amended to allow for an expert in the field of the type of evidence gathered to provide an affidavit verifying the evidence, without necessitating an actual court appearance, unless so requested by the court.
The insertion of Chapters 5A and 5B into the South African Police Services Act (SAPS Act) were done in order to provide for references to the storage and use of fingerprints and photographs.
Amendments to Section 1 of the Firearms Control Act (FCA) of 2000 were effected, that removed the distinction between intimate and non-intimate samples, in order to allow for legal continuity throughout the legislation. Section 113 of the FCA was amended to take into account the Committee’s opinion on the retention of fingerprints. Amendments to the Explosives Act (EA) of 2003, were effected in a similar manner.
Dr Jacobs went through the document and asked members to flag amendments that they felt needed to be changed.
Ms D Kohler-Barnard (DA) stated that the Committee needed advice on how to broaden the definition of the term ‘body-prints’ so that it did not constrain the gathering or use of evidence.
Ms D Schafer (DA) asked whether it was possible to relate the type of body print needed to the type of evidence found at a crime scene.
Ms A Van Wyk (ANC) stated that on page 4 of the document, there was reference to the term ‘speculative search’. This issue needed to be revisited. The Committee had not conclusively decided what to rename it.
The Chairperson agreed that the definition of ‘body-prints’ needed to be broadened, but added that it could not be open ended. Members seemed to be happy with the long title of the Bill and page 3 of the document.
Mr Johan De Lange, Director, Department of Justice & Constitutional Development (DoJ), stated that Members should bear in mind that whilst intimate printing of certain body parts could not be done by SAPS without a medical practitioner, the courts were empowered to grant SAPS the right to take prints if this was deemed relevant to the case.
Mr M George (COPE) added that lips could be considered intimate, and as such should not be included in the definition. Because there was provision for the court to make a ruling, he thought that the definition could be left as it was in the Bill.
The Chairperson asked whether he was suggesting that the list be left as it was.
Ms Van Wyk replied that the taking of a print related to a crime scene should be allowed, excluding genitalia.
Mr George agreed.
Ms Kohler-Barnard agreed and added that if the Bill were to start defining specific parts, then it may lead to exclusion problems for evidence. SAPS should be allowed to take any print related to the crime scene, with the exception of intimate prints.
Mr De Lange added that the Committee should bear in mind the process of printing. Some people may consider different areas intimate. He cautioned that if this was left too wide open, it could be contested.
Dr Jacobs stated that the provision in regard to the prints that were related to the crime scene in question, solved the problem and prevented the issue of an officer demanding all sorts of prints.
The Chairperson asked if Members agreed to this change.
Ms Van Wyk replied that the SLA should draft new wording, and allow the Committee to review it again.
Dr Jacobs stated that the term ‘comparative search’ was a better solution than the term ‘speculative search’.
Ms Schafer agreed, and added that it was an acceptable term.
The Chairperson accepted this.
Dr Jacobs asked whether it was possible to exclude traffic offences from Section 36B(1).
Ms Kohler-Barnard added that making it compulsory to take prints for every petty offence would result in forensic laboratories being inundated. She also asked whether there was any way to regulate the uniform taking of prints by those government department who were taking prints.
Dr Jacobs replied that it would dangerous to prescribe to other departments, as they had specific needs, and there may be an impact in terms of storage capacity.
Ms Van Wyk agreed and added that whilst this would be the ideal, in reality the departments were many years away from achieving uniformity. As a first step it was necessary to ensure that SAPS printing was sharpened and regulated.
Dr Jacobs replied that the standard SAPS manner was to take a four digit print, then every finger individually.
Mr George added that Dr Jacobs was correct. SAPS should be left to judge whether they needed to take prints, and how they should do so.
Ms Van Wyk stated that if traffic violations were not printed, then driving under the influence of alcohol would not warrant a print any more.
Dr Jacobs replied that in that case the person would be arrested. Whenever an arrest was made, a print would be taken. Minor traffic violations did not warrant an arrest.
Mr George stated that in light of what Dr Jacobs had said, he thought Section 36B(1) was acceptable.
Rev K Meshoe (ACDP) replied that he needed clarity under Section 36B (1) as to what happened to a person falsely arrested.
Ms Kohler-Barnard suggested that the text should read that ‘a police official may’, in order to allow the officer to use his or her discretion in determining whether or not an offence warranted prints being taken.
Mr George replied that once the term ‘may’ was used it allowed for a challenge. He believed that the term ‘must’ should be used. Any individual who was arrested must have his or her prints taken.
Ms Van Wyk agreed with Mr George and stated that the purpose of this legislation was to ensure that fingerprinting did occur.
Ms Schafer asked whether the Bill could stipulate that prints ‘must’ be taken for serious offences and ‘may’ be taken for petty offences.
Dr Jacobs replied that not everyone’s prints were taken when they should be. Providing for the taking of prints in the legislation would close this loophole and would ensure that all those committing certain schedule offences would have been fingerprinted.
Ms Carin Booyse, State Law Advisor, Office of The State Law Advisor, suggested that it would be possible to split Section 36B (1)(a)(iii) into schedules, to deal with this issue.
Ms Van Wyk said that priority should be given to scheduled offences prints at forensic laboratories, whilst the lesser priority prints should be retained.
Ms Schafer replied that if this was to be done, then it would not be possible to use the word ‘must’, as it would create a conflict.
Ms Kohler-Barnard added that from a practical point of view it was questionable whether SAPS had the capacity to deal with thousands of additional prints.
The Chairperson asked what SAPS would do in the case of a person arrested for loitering and detained overnight. This happened on a routine basis. She added that a balance needed to be struck.
Dr Jacobs replied that a solution would be to state that anyone who committed a Schedule 1 offence would be fingerprinted, and that the National Commissioner could decide which other offences warranted fingerprinting.
Ms van Wyk stated that she was comfortable with the split, but reiterated that the Bill must ensure that all those committing serious crimes definitely would have their fingerprints taken.
The Chairperson agreed.
Ms Schafer stated that paragraph (iv) on page six of the document seemed superfluous, as it separated types of sentences.
Dr Jacobs replied that there were cases where sentences were postponed.
The Chairperson replied that she was happy with this paragraph.
Mr De Lange stated that he would like to get back to the Committee on Ms Schafer’s point. He was concerned that paragraph (iv) seemed to duplicate paragraph (v).
Ms van Wyk raised issue with section 36B(5) around retention of prints. SAPS was getting access to non-criminal prints from e-Natis and HANIS. This meant that SAPS would have access to prints of non-convicted people. There was an issue around SAPS keeping prints forever, but in light of this access the distinction seemed redundant. The possible splitting of the database into guilty and not-guilty hits was raised.
Mr George stated that SAPS’s access to HANIS was not open ended, and the same applied to keeping prints indefinitely on the SAPS database. When SAPS needed prints from HANIS, it needed to provide reasons. SAPS should not be keeping records of people who were not criminals.
The Chairperson added that Mr George was correct. The Committee would need to revert to this issue.
Ms Van Wyk suggested that the Bill should allow for retention of fingerprints on the SAPS databases for a limited period of time.
Mr De Lange stated that there was no need for Subsection (a) of 36B (1), since there was no other subsection. This would therefore simply be named as Section 36B(1).
Ms Kohler-Barnard stated that the words ‘the information derived from such samples’ should be removed from Section 36B(5)(c).
The Chairperson agreed.
Ms Schafer added that reference to ‘fingerprints’ should be changed to ‘prints’.
Mr Theo Hercules, State Law Advisor, Office of the State Law Advisor, stated that there was another whole section that dealt with ‘body-prints’ and that for this reason the term ‘fingerprints’ should be retained.
The Chairperson acknowledged this.
Mr De Lange stated, with reference to the same section, that the purpose of the prescribed maximum sentence was to convey the seriousness of the crime. In reality he thought it unlikely that a sentence of 15 years would be handed down for a crime such as this.
Ms Van Wyk stated that, as presently worded, it sent out a strong message, and she suggested that it be retained.
Rev Meshoe stated that if there was only a maximum sentence stated, then the Court could hand down a short sentence such as six months. He asked whether a minimum and maximum should not be stated.
Ms Schafer questioned whether this should not simply be left to the discretion of the courts.
Mr George asked what would happened if, upon investigation, a sentence longer than 15 years was found to be appropriate.
The Chairperson asked whether 15 years was not harsh enough for misuse of fingerprints.
Ms Van Wyk added that the Bill should respect the independence of the judiciary. She would not like to prescribe a minimum, as this infringed upon the discretion of the courts. She pointed out to Mr George that if a person had been abusing the database for a long time, then he most likely could be charged on multiple counts.
The Chairperson agreed that the Bill could not be too prescriptive.
Mr M Nonkonyana (ANC) agreed with Ms Van Wyk and added that the Director of Public Prosecutions would determine matters such as this.
Ms Schafer asked why there was then the need to make any prescription in the Bill.
Mr De Lange stated that in all likelihood, if this offence was committed, it would be secondary to fraud.
The Committee agreed to leave the clause as it was.
The Chairperson stated that they would be moving on to the proposed new Sections 36C (1) and (2)
Ms Van Wyk stated that the term ‘them’ should be removed from in Section 36C(2)(a). This related to the issue whether or not to allow an entire group to be printed, and to whether prints could be retained.
Mr George took issue with proposed Section 36C(3)(a) stating that prints needed to be retained.
Dr Jacobs stated that the Bill was making provision for SAPS to take prints of a group of people, in order to eliminate non-suspects, without having to arrest everyone. This could be narrowed down to apply solely to Schedule 1 offences.
Ms Schafer said that this provision was qualified by stating ‘if there are reasonable grounds’.
The Chairperson stated that most of the amendments to the proposed Section 36C were in order, but that Section 36C(3)(a), must be amended to reflect the Committee’s earlier decision.
Dr Jacobs stated that there was a need to revert back to using the term ‘blood-samples’ in the Bill. Without this there would be no other law allowing for the taking of blood samples, until the DNA component of the Bill was passed.
The Chairperson agreed that this term must be reinserted so that the current position remained.
Dr Jacobs stated that that from page 12 of the documents he had re-inserted the word ‘blood’ in line with this principle. However, the Committee needed to discuss using the term ‘may’ or ‘must’ in relation to a medical practitioner taking blood under orders from a SAPS officer.
Page 14 contained a re-insertion of subsection (5). This must be retained in order to effect the Committee’s decision to destroy the prints of innocent or acquitted individuals.
Ms Schafer stated that Section 37(1)(b) should not be so broad.
Dr Jacobs stated that the wording under that clause had been in this form for many years. There had never been any difficulty with it, because the National Commissioner issued clear guidelines for identity parades.
Ms Schafer asked whether the words ‘in accordance with the National Commissioner’s instructions’ should not be inserted.
Mr De Lange added that this clause had nothing to do with printing or DNA analysis. He cautioned against tampering with it, as this would have consequential effects on other legislation.
Dr Jacobs agreed with Mr De Lange.
The Chairperson asked what they were suggesting.
Dr Jacobs replied that this clause should be left as it was.
The Chairperson agreed. She asked what relevance Section 37(1) had to printing.
Mr De Lange replied that this was consequential upon other amendments.
Mr George took issue with Section 37(2)(a) and stated that medical practitioners were not employed by SAPS, and therefore that SAPS could not demand of them that they do certain things. For this reason he suggested that the term ‘must’ should be changed to ‘may’.
Mr De Lange suggested that this section be removed, as it did not deal with prints.
Ms Van Wyk asked whether there still were District Surgeons.
The Chairperson replied that there were not. She asked that Section 37(2)(a) be removed.
Ms Van Wyk said there was no need to remove the section altogether, but that the word ‘must’ simply needed to be replaced with ‘may’.
Mr De Lange agreed. He suggested that Members take note of the proviso at the end of subsection (2)
Ms Kohler-Barnard suggested that the Committee should be advised by the Ministry of Health on this matter. The Committee did not want to run the risk of overruling the Hippocratic Oath.
Ms Schafer stated that the phrase ‘or the information derived from such samples’ should be deleted from Section 37(6)(b).
The Chairperson agreed and added that subsection (7) would be taken care of according to earlier decisions.
The Chairperson noted the substitution of Section 212 (a) and asked why this had been done.
Dr Jacobs replied that it was a mechanism that avoided having to summon experts to give evidence if that evidence was not going to be contested. In effect, it would allow a forensic scientist to write a certificate verifying that the analysis of the particular item was correct and accurate.
Ms Schafer asked whether the term ‘body-prints’ should not be included under paragraph (a)(iv).
Dr Jacobs replied that this was correct.
The Chairperson asked Members whether they agreed with the amendments set out on page 17.
Members replied that they were satisfied with them.
Dr Jacobs then turned to page 19. He noted that the amendment to Section 225 related to the splitting of the Bill.
The Chairperson asked if the Committee agreed with this.
The Committee replied in the affirmative.
SAPS Act Amendments
Dr Jacobs stated that the insertion of Chapters 5A and 5B into the SAPS Act (Act 68 of 1995) related to the storage of fingerprints.
The Chairperson asked whether the Committee agreed with these amendments.
The Committee agreed.
Ms Schafer stated that the Committee needed to discuss safety measures related to the storage of prints.
Mr George asked the SLA to note that numbering would change, due to these amendments.
Firearms Control Act amendments
Dr Jacobs stated that with regards to the FCA, subsection 5 (c) needed to be aligned with references to the criminal records centre.
The Chairperson agreed on the amendments to the FCA.
Dr Jacobs added that on Page 29 of the document, there would need to be an arranging of the definitions of the FCA into alphabetical order.
Ms Van Wyk also added that the definition of ‘body-prints’ would need to be changed.
Explosives Act Amendment
Dr Jacobs moved on to the amendments to the Explosives Act, Act 15 of 2003. He stated that, in Section 9 of that Act, the term ‘bodily’ needed to be reinserted because it was still necessary. However, the phrase information derived from such samples’ should be deleted from Subsection (5) (b)
The Chairperson asked that the Committee now return to issues needing further debate. She suggested that the Committee should first look at the definition of ‘comparative search’.
Dr Jacobs stated that Members should refer to the definition on page 4.
The Chairperson asked whether, in line with the DoJ’s recommendation, Members would agree with the definition of the substituted term ‘identification search’, instead of ‘speculative search’.
Ms van Wyk asked why there was reference to provincial and local government in the definition of ‘identification search’. When issues around the Department of Home Affairs (DHA) were discussed with SAPS, it was stated that DHA would have to bear some of the costs. Provincial and local spheres could not expected to bear any costs. If the Traffic Department’s database was to be used, then this would be accomplished by using the National Department of Transport’s (DoT) system, rather than placing a burden on local traffic departments.
Mr George understood what Ms Van Wyk was trying to say, but asked whether the SLA could determine whether there were in fact any local or provincial fingerprint databases. It might be quicker to access these when dealing with local crimes.
Ms van Wyk replied that she had no problem with asking for clarity. However, this still came down to safeguards and protocols, and for this reason she thought it would be preferable to refer to national networks.
The Chairperson agreed that at this stage the references to provincial and local government should be removed from the definition. The Committee needed some further fact-finding.
Mr De Lange stated that the definition went beyond fingerprints. The purpose of the definition was not to be substantive in law nor prescriptive. All sorts of databases were utilised, and did not need to be included in the definitions. The definitions could be improved, and instead of giving actual authority that could be inserted in the main body of the Bill.
Mr George stated that these definitions needed to be linked to security issues as well.
Ms Van Wyk agreed with Mr George.
The Chairperson also agreed and added that there was a need to narrow down this definition.
Ms Van Wyk added that whilst she agreed with narrowing down the definition, there was a need to make reference to security protocols.
Mr George asked that this be attended to by the SLA.
The Chairperson asked whether the Committee was happy with Section 37. This had the potential to violate children’s rights.
Mr Hercules stated that Mr De Lange would be briefing the Committee on the interaction between the CPA and the Child Justice Act (CJA).
The Chairperson stated that the next issue under scrutiny was indefinite storage of prints.
Dr Jacobs gave a background on the legal developments. On 8 December 2008 the European Council on Human Rights (ECHR) handed down a judgment in a case involving an 11 year old boy, who was printed in the United Kingdom (UK). In line with the current UK legislation, both his DNA and prints were kept. The ECHR decided that people who had been acquitted should not have their data retained, but did not specify anything further. The UK legislation was then amended, to allow for an age-related grading of retention levels, as the ECHR ruling had made it very clear that limitless retention of prints of innocent individuals was not acceptable.
Based on this judgment, it seemed to be necessary to define a reasonable time period, for the destruction of prints and associated data.
The Chairperson stated that the Committee should first consider the situation with convicted persons.
Ms Schafer stated that the case related to people who had been acquitted. She asked what the situation was with those found guilty.
Dr Jacobs confirmed that this case only gave a ruling on those found not guilty.
Mr George stated that he was strongly opposed to the retention of prints of innocent people, as there was no reason to do so.
The Chairperson suggested that the prints of convicted criminals should be kept indefinitely.
The Committee agreed with this.
Ms Schafer added that SAPS had access to eNATIS and HANIS. If SAPS needed fingerprints again, they could access them again. There was no need for SAPS to keep its own copies.
Mr G Lekgetho (ANC) agreed and added that prints of those who were acquitted should be immediately destroyed.
The Chairperson raised the case of drug lords who had been acquitted on numerous occasions, and other repeat offenders who were constantly acquitted. She suggested that in light of this it might be useful for SAPS to keep prints for a limited period.
Ms Schafer understood her point, but said that such people, having been acquitted, could not be treated as criminals. The problem in this case was the lack of a successful prosecution. Keeping prints would not result in better prosecution of suspects.
Rev Meshoe stated that there should be a limited period of between three to five years for retention of prints.
Mr George stated that it was a question of principle. From a legal point of view, the position of someone who had been acquitted was exactly the same as the position of someone who had never been charged. The Criminal Justice System (CJS) had endemic weaknesses in securing convictions, but the destruction of prints did not stop the police from arresting the individual again and re-printing, as it was their job to do so, no matter how often this might occur. South Africans who were innocent could not be criminalised.
Ms van Wyk added that the Committee had not heard any compelling reasons for keeping prints of innocent citizens. She was of the view that those found innocent should not have their prints retained. Convicted criminals and repeat offenders should have their prints retained. There was another issue of whether convicted children should have their prints retained indefinitely.
Mr De Lange stated that it was the DoJ’s view that South Africa was subject to different realities from the EU. There were some cases in which criminals were tracked down and convicted, due to SAPS having retained their prints.
Dr Jacobs added that he would have to check on this.
Mr De Lange ventured a guess that it would be easier if there was a distinction between ordinary (innocent) civilians and criminals on the database, but added that if SAPS had access to other databases then this would be beside the point.
Mr George stated that Section 37 stated that prints were to be destroyed if the person was acquitted, and retained if the person was convicted. He thought that there was no need to complicate the issue.
Ms Van Wyk interjected that the Committee had to be very careful in dealing with children. It would be irresponsible to treat them in the same way as adult offenders. Whilst she agreed that South Africa was not part of the EU, the DoJ, in the course of drafting, had constantly made reference to the UK legislation.
The Chairperson suggested that SAPS and the DoJ should come back to the Committee with compelling reasons why retention of prints for innocent people should be allowed, and whether children should be treated the same as convicted adults.
Ms Van Wyk stated that Mr De Lange was supposed to brief the committee on the CJA and suggested that the Committee should take this briefing now.
The Chairperson replied that the Committee would attend to this on the following day.
Ms Schafer asked whether Mr De Lange could also forward the details of the UK case he had mentioned to the Committee. She also suggested that input on information technology from the various departments was also needed, around safeguards and security.
The Chairperson stated that on the following day, the Committee would be dealing with security of information as well as the issue around children. It was her view that all serious criminals should have their prints retained indefinitely.
Mr George stated that he had changed his mind. He now felt that children who had committed Schedule 1 offences should have their prints retained indefinitely, whilst those who had committed less serious offence should have their prints retained for a period of three years.
Ms Van Wyk pleaded that the Committee should not take a final decision on this matter until it had received input on the CJA.
Mr V Ndlovu (IFP) asked what was the objection in principle to keeping the prints of innocent people. The mere keeping of their prints did not make them criminals. He suggested that the issue be discussed further on the following day.
Mr George added that he thought that the matter was settled, and that the prints of all those found innocent would be destroyed immediately.
The Chairperson stated that the Committee had agreed on the principles, but that if SAPS and DoJ had compelling reasons to retain prints further, then they must bring this information before the Committee.
Mr De Lange noted that SAPS did not have direct access to ENATIS and HANIS. If it did not destroy prints, SAPS would have a bigger database of its own against which to compare prints taken.
Dr Jacobs stated that the only reason for keeping prints was to broaden the SAPS database.
Ms van Wyk stated that this approach would amount to according exactly the same treatment to those who were guilty, acquitted or never charged. She still did not think that SAPS and the DoJ had provided any really compelling reasons. For this reason, she believed that their access to other databases should be sufficient.
Mr Lekgetho agreed. He was opposed to effectively criminalising innocent people.
Ms Schafer agreed and added that the ultimate goal was to have one integrated government database, which SAPS would be able to access. If SAPS integrated its database for easy access with other databases, then the issue of retention was not valid, as their crime fighting capacity would not be hindered or strengthened by retention of prints that they could easily access elsewhere.
Dr Jacobs replied that in the near future there was no possibility of one single database, and that the short term goal was access to the DHA database.
Ms Schafer asked how that would happen from a practical point of view.
The Chairperson stated that the information technology experts should be asked to explain this.
Dr Jacobs replied that the DHA would forward this information.
Ms Van Wyk added that SAPS could not just have access to HANIS or eNATIS. SAPS needed to forward completed requests for access to these databases.
Ms Kohler-Barnard added that a DHA official had come in to discuss this. It had become clear that even DHA did not have a fully functional database, as DHA officials were still manually retrieving files.
The Chairperson stated that the legal experts should review these issues. She added that there seemed to be no reason to keep prints. For this reason the period ‘immediately’ in relation to destruction of prints, must be defined.
Mr Lekgetho suggested seven working days.
Rev Meshoe stated that the destruction should be defined as ‘as soon as practically possible’.
Dr Jacobs admitted that currently there was no prescript, and agreed that a reasonable time should be defined. A suggestion of three months was made.
The Chairperson agreed that the Bill should define ‘immediately’ as a period not exceeding three months.
Ms Schafer asked whether legal services could do a comparison with other countries to determine what they did with the prints of innocent people.
The Chairperson stated that the Committee would now move away from this issue. Those found guilty would have their prints retained indefinitely. Those found innocent people would have their prints destroyed immediately, as defined. The SLAs were asked to ensure compliance with the Protection of Personal Information Bill.
The Chairperson asked for comment on the long title of the Bill.
Dr Jacobs recommended that the Committee deal with this issue at the very end of the process.
Ms Schafer asked whether the Committee had provided for adequate public participation in the consideration of this Bill.
Mr Jeremy Michaels, Police Portfolio Committee Secretary, replied that he believed that there had been adequate public participation. When the process started, the Committee had placed an advertisement in the newspaper, and submissions were received. Those who made written submission were telephonically asked whether they wanted to make oral submissions, but they answered that they were satisfied with the process, but would appreciate the opportunity to make further input during the consideration of DNA-related aspects of the Bill.
Ms Kohler-Barnard stated that the Committee still needed to hear the full financial implications of implementing the Bill.
Ms Schafer requested further information on safeguards around database access.
Mr Ndlovu added that these safeguards needed to address the correction of faulty information on the databases.
Adoption of Minutes of previous meetings
The minutes of 2 June, 12 June and 30 June were tabled and adopted, subject to correction of some grammatical amendments.
The minutes of 17 June and 23 June were adopted, with amendments that required the inclusion of the responses given to members’ questions by officials.
The meeting was adjourned.
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