Criminal Law (Forensic Procedures) Amendment Bill: clause-by-clause discussion

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16 March 2010
Chairperson: Ms S Chikunga (ANC)
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Meeting Summary

The clause-by-clause reading by South African Police Service and Justice Department officials allowed the Committee to run through the final version of the First Part of the Bill. They addressed issues including the sentencing of those found to have violated the provisions of the Act with regard to usage of the database. Some members felt, for the sake of uniformity, to amend the sentencing provision for anyone found guilty of using the fingerprints or body-prints for any purpose other than that envisaged in the Act. There was a debate about whether it would be proper for the SAPS Criminal Record Centre to retain fingerprints and body features of minors who were accused of minor offences. And what should happen when such sentences were expunged? Members felt that there should have been explicit provisions in the Bill to address matters concerning children so that they complied with the constitutional values of protecting children. Another discussion was whether to define the term ‘bodily samples’. It was decided not to tamper with the current wording of the Bill. It was finally agreed that the Committee should insert a provision compelling the heads of three state departments (Transport, Home Affairs and Police) which would be sharing their databases to formulate standard operating procedures which would ensure the integrity of information on the database within six months of the coming into force of the Bill. The drafting team was asked to make some minor changes. This included the addition of the phrase “and for identification of missing persons or unidentified human remains” whenever the use of fingerprints and body samples was mentioned as part of the purpose for which such material could be taken.

Meeting report

The Committee met with the South African Police Service (SAPS), Justice Department officials and state law advisers to discuss flagged clauses in the Bill which needed to be finalised before the final draft of the Bill could be prepared. The clause-by-clause scrutiny was led by SAPS Assistant Commissioners Dr Philip Jacobs (Head Legal Support: Crime Operations) and Dr Tertius Geldenhuys (Head of Legislation, Legal Services), Mr Johan de Lange from Department of Justice and Mr Theo Hercules (State Law Adviser). Also present was Assistant Commissioner Tsietsi Khunou from SAPS Criminal Record Centre (CRC).

Comments arising during the read-through of the Bill included:
Long title
Dr Jacobs suggested that it would be much better to amend the long title of the Bill by deleting wording which referred to ‘palm prints’ and insert the word ‘body prints’ instead. It was also suggested that the wording of the word “finger-prints” as earlier written in the long title should be written as “fingerprints”.
Clause 36B(1)(6)(ii)
Ms D Kohler-Barnard (DA) was concerned that the retention of minor’s fingerprints as contemplated in the section did not sit well with her sense of justice and probably at odds with the constitutional values of treating children leniently.

Mr Jacobs advised the Committee that, when making a provision which would affect children, they must align such provision with the Child Justice Act. The CJA makes provision for dealing with situations where minors were subject to criminal proceedings whether minor or serious offences.

Ms D Schaffer (DA) asked whether the expungement of a criminal record in terms of Section 87 of the CJA would also entail the removal of the fingerprints of that particular minor from the database. Would that removal be automatically done or would it require an application made by or on behalf of the minor?

Commissioner Geldenhuys confirmed that indeed the expungement of the sentence would result in the removal of fingerprints from the records, however such removal albeit automatic was dependent upon the delivery of the expungement certificate to the Head of the Criminal Record Centre.

Mr Tsietsi Khunou, Assistant Commissioner: Criminal Record Centre, agreed that Mr Geldenhuys was correct about the procedure to be followed for the removal of fingerprints of minors from the database.

Ms Kohler-Barnard suggested that the Committee insert a clause to the effect that fingerprints of a minor must be deleted from the database once the minor’s record had been expunged. It would be too risky and unjust to leave it up to the CJA when this Committee had the powers to dictate what it wanted and insert this into the Bill.

Clause 36C(3)(d)
Ms Schaffer asked the Committee to consider the clause which imposed a period of imprisonment not exceeding 15 years for violating the Act and include the option of fine.

Mr M George (COPE) said the argument raised by Ms Schaffer had been thoroughly discussed by the Committee. The decision was taken not to give the option of a fine for anyone found to have used the fingerprints or body-prints in the database for illegal purposes. The Committee agreed that by so doing, it would be sending a strong message to officials who come into contact with the database that any such violation would land them in prison without the option of a fine.

Clause 37(1)(c)
Ms Schaffer had a problem with the wording of Clause 37(1)(c), saying it would have been useful if the Committee had provided a definition of what would constitute a ‘blood sample’. In was inconceivable that any police official would (provided the gender allowed) take a blood sample from a suspect if that police official were not a medical practitioner.

Commissioner Geldenhuys suggested that the Committee flag the clause until they had considered the second part of the Bill dealing with DNA samples. It would cause a lot of problems and even to some extent hamper crime investigations if one were to attempt to change or define what would constitute ‘bodily sample’ at this stage. The wording as it stood allowed the police to extract bodily samples as well as blood. Defining ‘bodily sample’ before the DNA part of the Bill was finalised would limit the power of police when faced with situations that overlapped to the second part of the Bill which had not yet have been processed.

Clause 15C(1)
Since the Bill made provision for the sharing of the database between the Police, Home Affairs and Transport Department, members suggested inserting a clause in the Bill which compelled the National Commissioner, together with the Directors General of those departments to draft standard operating procedures. The earlier wording of the clause did not oblige the three state departments to carry out that particular mandate.

Mr George asked what would happen if the three state departmental heads failed to agree on the standard operating procedures. Who would be tasked to chair such deliberations and would it not be proper to name the SAPS National Commissioner as the chairperson of those deliberations to ensure that a situation of three bulls under one roof was eliminated.

Ms Van Wyk suggested that the Committee maintain a time clause of a period of six months after the coming into force of the Act for the National Police Commissioner and the Directors-General of relevant departments to finalise the national instructions concerning the storage, maintenance, administration and the use of fingerprints, body prints and photographic images, as part of the security measures for the integrity of information in the database. 

The Chairperson asked the Department Police lawyers, the state law advisers and representatives from Justice Department to meet and effect the changes that were agreed to by the Committee and to present the final version of the Bill to the Committee Secretary before the meeting on Tuesday 23 March 2010.

The meeting was adjourned.


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