A new Acting Chairperson, Ms A van Wyk (ANC) was appointed, since Ms L Chikunga, the former Chairperson, had been promoted to Deputy Minister of Transport. All parties expressed their thanks and appreciation to Ms Chikunga for her leadership and commitment. They also noted the appointment of the new Police Commissioner, although DA and COPE Members, on behalf of their parties, said that, in principle, they would have preferred to see appointment of an existing South African Police Service (SAPS) official.
The Civilian Secretariat for Police presented the Policy Document, developed jointly with the SAPS Forensic Science Services, to address the establishment of a National DNA Database, which was mentioned in the second portion of the Criminal Procedure Amendment Bill dealing with forensic matters, of which the first part was adopted, and the second part left over for consideration once the database concerns had been further addressed by the Committee’s study tour and the State Law Advisors’ further research. Many other countries recognised the benefits of a DNA database, but it had to respect citizens’ rights and some issues, such as familial searches, that were competent in countries that did not have a Bill of Rights (such as the United Kingdom) would not pass Constitutional muster in South Africa. The current practices of DNA sampling and profiling were outlined, but it was noted that they were not governed by clear legislation and this was necessary for proper enforcement of the Policy. It was necessary also to accredit the SAPS Forensic Science Laboratories, administration of the database by FSS, as privatization was considered too costly, and use of indexes, including only arrested and charged suspects, and separation of the criminal-evidence portion from the voluntary portion. The Policy required that police personnel be trained to collect samples, and the terms and conditions were outlined. International standards of baccal swabs would be used. The DNA database would be linked to the Automated Fingerprint Identification System (AFIS), and should be programmed with Combined DNA Index System (CODIS) software in order to adhere to international norms and standards. The Departments of Police, Health, Home Affairs, the Correctional Services and Justice would play a role. The Policy was intended to be implemented in two 18-month phases, the Oversight Board would report to Parliament annually and the legislation would be reviewed every five years.
SAPS was asked to outline the implementation plan briefly, although this was not on the agenda, and it was noted that further briefings would be necessary to address a range of issues. The SAPS official was not able to comment on the proposed legislation and its content, but only on possible implementation plans. Since the number of DNA samples was anticipated to be around 250 000 a year, more personnel would be needed and the personnel and equipment costs were estimated at about R112 million annually.
Members noted that the new Bill was likely to come before the Committee in August or September. Members asked when the accreditation for the Forensic Science Laboratories would be done, and questioned what caused the delays, and asked what training would be required, and which officers would be trained. This led to a debate on whether the comments made at an earlier meeting about the SAPS decision to halt recruitments, in an attempt to reduce the size of the force, would affect the policy. It was clarified that although that was announced, at an earlier meeting, the decision had since been revised, with SAPS deciding instead to make savings in other budget areas. Members asked that the Policy stipulate that DNA of women and children should be taken by a female officer, noted that samples of visitors to the laboratories would be compulsory, but they would then be include in the elimination index, asked for clarity on what samples would be kept and which would be expunged, and it was emphasised that the legislation must contain penalties for those who failed to comply with provisions around expunging. A Member suggested that the involvement of the Department of Health should be minimal, whilst others insisted that the Department of Home Affairs must be included in oversight and review. The privatisation of the database was debated briefly. Members asked about the Volunteer’s Index, the purpose to which it could be put, whether DNA could be used for purposes of identifying a victim, and Members thought that the Policy should be worded more assertively and use the phrase “must be”. Matters that the Committee wished to hear more about would include ,management over the transporting of samples, how many police officers would receive training, how many centres would deal with DNA samples, whether the Bill might best be dealt with through the Property Control and Exhibit Management Solution, how security between different indexes would be maintained, what the Policy would prescribe for training of detectives, particularly their training to use DNA as court evidence. They noted that training was going out on tender. Members also insisted that proper planning was needed for ordering and using toolkits within their validity dates.
Members considered minutes, and suggested amendments to wording, but did not yet officially adopt them.
Appointment of Acting Chairperson
Ms Zola Vice (Committee Secretary) said Ms L Chikunga, until now Chairperson of the Committee, had been appointed Deputy Minister of Transport, and called on Members for nomination of an Acting Chairperson.
Two nominations were received, and, after a vote, Ms A Ms Van Wyk (ANC) was elected as Acting Chairperson.
Acting Chairperson’s opening remarks, and thanks to previous Chair
Ms van Wyk thanked Members for their support and indicated that she would act as Chairperson until a new permanent Chairperson was elected. She expressed her sincere thanks to Ms Chikunga for the energetic leadership she had shown and said the Committee wished her well in her new role.
Ms van Wyk also indicated that President Zuma had paved a new start for the South African Police Service (SAPS) with his appointment of Ms Mangwashi Phiyega as the new national police commissioner. Copies of her curriculum vitae (CV) were handed to Members, and Ms van Wyk read out a list of Ms Phiyega’s achievements and academic credentials. She noted that one of the greatest challenges that SAPS faced was management at national, provincial and station level, and it was clear from her CV that Ms Phiyega unquestionably had good management skills. Ms Van Wyk wished her well and said that the Committee would hold her and her team accountable.
Ms D Kohler-Barnard (DA) said she was pleased for Ms Phiyega on her appointment, though she would reserve her judgment whether Ms Phiyega would be able to adapt to the overnight shift from a civilian to General’s position.
Mr M George (COPE) congratulated Ms Chikunga on her new position as Deputy Minister of Transport. He was not sure whether it was ideal to appoint a new police commissioner from outside the police service.
Ms Van Wyk said members should wait until the Minister of Police formally introduced Ms Phiyega before they started to debate her appointment.
Rev K Meshoe (ACDP) wished to convey his party’s congratulations to Ms Chikunga on her promotion, and said that the loss for the Portfolio Committee on Police would be the Department of Transport’s gain.
He too would have preferred to see a career police officer in the position of national police commissioner, but President Zuma’s decision was a done deal and should be respected. The Committee would ensure that she accounted to Parliament.
Ms A Molebatsi (ANC) expressed her party’s gratitude to Ms Chikunga and wished her well with her duties that lay ahead.
Ms Kohler-Barnard said she admired Ms Chikunga for her hard work and determination, and her move would be a loss to the Committee.
The Acting Chairperson thanked Members for their messages and said that all messages would be relayed to both Ms Chikunga and Ms Phiyega. The office of the Minister had requested that the meeting that was scheduled for Friday, June 15th, to deal with intelligence and suspensions issues be postponed in order to give Ms Phiyega time to settle into her new position. The Police Minister would introduce the new national police commissioner to the committee within due time.
Later in the meeting, the Acting Chairperson noted the arrival of Ms Chikunga, whom she welcomed and congratulated on her appointment, saying that all Members were very proud of her.
Ms L Chikunga (ANC) said she was still shocked by the good news of her appointment. She thanked Members for their continuous support over the years, and also thanked other entities including the SAPS, the media, universities and non-governmental organisations.
Ms Chikunga was applauded as she left the meeting.
Civilian Secretariat of Police: Presentation on DNA Policy
Ms Jenni Irish-Qhobosheane, Secretary of Police, Civilian Secretariat of Police (CSP), said the Policy Document on DNA had been developed jointly with the SAPS Forensic Science Services (FSS). This document addressed the second portion of the previously-split Criminal Procedure (Forensic) Amendment Bill. The policy-making process took cognisance of the Study Tour report from the Portfolio Committee on Police and the report of the international research trip by the State Law Advisors.
Ms Bilkis Omar, Chief Director: Policy and Research, CSP, said there were many issues that had to be dealt with before a national DNA database could be established through legislation. Many countries had acknowledged the benefits of a DNA database, providing it respected people’s rights. The CSP had studied the DNA legislation of countries such as the
Ms Omar outlined the current practice of DNA sampling and profiling. The data that was housed in DNA repositories was not presently governed by clear legislation. The purpose of the Policy Document was to create a National DNA database, which would be regulated by legislation. This would assist SAPS in the investigation and detection of crimes. Existing legislation on DNA was inadequate in that it did not provide for the proper accreditation of SAPS Forensic Science Laboratories, which meant that evidence was often questioned in court. The CSP recommended that the DNA database should be administered by the FSS, as the option to privatise would be too costly. The DNA Policy further recommended that the database should be limited to five indices, and the arrestee’s index should include only arrested and charged suspects, in order to minimise potential abuse.
Ms Omar said it was impractical to allow only medical practitioners to collect DNA samples at crime scenes. The policy therefore recommended that police personnel should be trained in DNA sample collection, in order to increase capacity, as well as to avoid time-wasting and secondary victimisation. The policy further outlined the terms and conditions that regulated how, when and where DNA samples and profiles should be retained, destroyed and expunged. The collection of DNA samples and profiles should be done in accordance with the Constitution, and thus must respect the right to human dignity, the right to privacy, the right to bodily and psychological integrity, and, in the case of minors, the specific rights of children as set out in the Child Justice Act. The plan was to use the international standard of baccal swabs, which were a way of collecting DNA samples in a relatively non-invasive manner. It was also important that the DNA Policy Document balanced the rights of individuals with the safety of communities.
Ms Omar said the National DNA database should be linked to the Automated Fingerprint Identification System (AFIS), and should be programmed with Combined DNA Index System (CODIS) software in order to adhere to international norms and standards. The establishment of a DNA database would involve several national departments, including SAPS, the Department of Health, the Department of Home Affairs, the Department of Correctional Services and the Department of Justice. Consultations between relevant departments to finalise protocols should be concluded, before the legislation was passed.
Ms Omar said the DNA Policy should be implemented in two phases of 18 months each. The first phase would entail human resources capacity training, establishment of an oversight body, identification of police stations for accreditation and rolling out awareness campaigns. The second phase would allow the Oversight Body to focus on the monitoring and evaluation of the implementation of the first phase. The Justice, Crime Prevention and Security (JCPS) Cabinet Committee should appoint an Oversight Board, who would be expected to report to Parliament annually. Furthermore, it was recommended that all DNA legislation should be reviewed by Parliament every five years.
South African Police Services: Implementation Plan of the DNA Policy
Maj-Gen Adeline Shezi, SAPS Forensic Services, apologized for not providing members with a copy of her presentation, since SAPS was not asked, in advance of this meeting, to give input. However, she would ensure that a copy was sent to the Committee.
Maj-Gen Shezi said SAPS, after considering the content of the Criminal Procedure (Forensic) Amendment Bill, had decided that all compulsory provisions should be included in the Policy Document on DNA. There were some crucial factors that had to be taken account when planning the implementation of a National DNA database. The following questions must, in particular be considered:
- When would it be necessary to take a DNA sample
- How should samples be categorized according to the five different indexes
- How would it be ensured that DNA information was used for crime and investigative purposes only
- What security measures must be in place to restrict access to the DNA database
- Which entities should form part of the oversight body to ensure that DNA legislation was not violated
- What mechanisms were needed to facilitate the accreditation of laboratories
- How should medical practitioners train police officers to collect DNA samples without violating the National Health Act.?
Maj-Gen Shezi said the SAPS had anticipated that the number of DNA reference samples would increase by 250 000 annually. This high influx would require stronger internal personnel capacity. The cost of increased personnel number, along with the cost of procuring operational DNA equipment and machines, would amount to an estimated R112 million annually, according to the Resource Allocation Guide (RAG).
The Acting Chairperson pointed out that the Committee faced time constraints in this meeting, and asked that Maj-Gen Shezi focus on critical issues, cost implications and expected time frames.
Ms Kohler-Barnard commented that she was finding it difficult to follow the presentation and asked if hard copies were available.
The Acting Chairperson assured her a copy of the presentation would be sent to members as soon as possible. The Committee would, at a later stage, need a more detailed briefing on the implementation plan of the SAPS.
Maj-Gen Shezi confirmed that the SAPS would soon deliver a more thorough and detailed presentation to the Portfolio Committee on Police.
Ms Irish-Qhobosheane clarified that the Bill to which Maj-Gen Shezi had referred was the former Bill presented to the Committee a few years ago; it would now be amended, in line with the new DNA Policy and implementation plan.
The Acting Chairperson asked when the Bill would be tabled before the Committee.
Ms Irish-Qhobosheane responded that the policy would first have to be approved, and input from this Committee must be considered, before the policy was signed off. The drafting would not take too long, since the fundamentals were in place. She thought the Bill could be presented in August or September.
The Acting Chairperson noted this, and requested that the Committee be kept informed of any delays.
Ms Molebatsi asked how far the CSP was in getting accreditation for the Forensic Science Laboratories. She also enquired what medical practitioners would train police officers to collect DNA samples, and whether there would be stipulations as to the types of officers who would be eligible for training?
Maj-Gen Shezi responded that the goal was to train all police officers, but this would become clearer once the policy had matured.
Ms Kohler-Barnard drew attention to the National Treasury directive mentioned during the budget briefing, to the effect that SAPS would have to drop its numbers by 9 000 members, either through natural attrition or non-hiring. This would surely impede the process of head-hunting the experts who would be needed to implement certain strategies, and she wondered how this problem would be addressed.
Ms Irish-Qhobosheane corrected Ms Kohler-Barnard, noting that it was not a National Treasury prescript to decrease the numbers of police personnel. There had been numerous engagements, involving the Minister of Police, SAPS, National Treasury and CSP, and the outcome of all discussions, taken together, was that the necessary police personnel levels would be maintained. There had been agreement between all parties that the Criminal Justice Review and Revamp funding allocated to SAPS by National Treasury would be used, in part, to fill priority posts in the forensic arena.
The Acting Chairperson said it was important to set the record straight. National Treasury had instructed the SAPS to save money by means of general budget cuts. The SAPS, as Ms Irish-Qhobosheane had now explained, chose to opt for cut backs and savings other than personnel employment levels.
Ms Kohler-Barnard said she was confused, because she remembered clearly that General Magda Stander, Head of Training, had stated categorically to members of the Committee that the last intake of SAPS trainees would be in January, and that, even though no personnel would be actively retrenched or dismissed for operational reasons, SAPS would not be hiring any new employees until its personnel levels had dropped by 9 000. She asked if this was correct, or not.
The Acting Chairperson conceded that this had been the decision at that point. However, since that statement was made, the Minister of Police had intervened and there had been discussions with both the National Treasury and the SAPS. It had subsequently been decided that the SAPS would save elsewhere in the budget, other than through personnel cuts.
Ms Irish-Qhobosheane confirmed that this was correct. The issue of budget utilisation and personnel cuts had been resolved during talks between the SAPS and the National Treasury that took place subsequent to the Portfolio Committee meeting to which Ms Kohler-Barnard referred. The statement given by Gen Stander was correct at the time, but SAPS had since changed its stance.
Ms Kohler-Barnard said that certain citizens may object to the SAPS’s claim that the collection of DNA samples was non-invasive. She asked whether the DNA Policy dealt with the fact that women’s and children’s DNA should be collected by women officers only, saying that if only male officers were trained to collect DNA it could lead to claims of gender discrimination.
Ms Omar said that the DNA Policy would be adapted to include a provision that the DNA of women and children may only be taken by a female medical practitioner or trained police officer.
Ms Kohler-Barnard said it was important that a DNA sample be taken from each and every person who visited the forensic laboratories. She recalled that during the Committee’s visits to laboratories in foreign countries, many ANC and IFP members had been reluctant to have their DNA samples taken. It was imperative that
Maj-Gen Shezi responded that, according to the policy, samples of DNA of visitors to the forensic laboratories would be taken and then included in the elimination index. However, SAPS would only be able to enforce the measures if the policy was legislated.
Ms Kohler-Barnard asked whether the CSP had given any consideration to familial searches. The ability to search for criminal links along the same bloodline would speed up the process of crime investigation.
Maj-Gen Shezi responded that familial searches were known overseas as bio-surveillance. Such measures were not being considered, as they would be in direct violation of the Constitution.
Ms Kohler-Barnard wondered to what extent the Department of Health would be involved in the establishment of a National DNA database and recommended that this Department’s involvement should be minimal, due to its capacity limitations and its dysfunctional own laboratory system.
Ms D Sibiya (ANC) asked for clarity on the issue of expunging a DNA profile or sample. She asked whether the DNA profile or sample would remain on the database if, after six months, the accused was found guilty.
Ms Omar responded that the DNA profile or sample would remain on the database for potential hits in future.
Mr George was concerned that the DNA Policy did not focus enough on the Constitutional rights of citizens. He asked why there was a delay in getting accreditation for laboratories, and questioned if this was solely due to financial constraints.
Maj-Gen Shezi responded that the delay was not caused solely by financial constraints. Engagements between the SAPS and the South African National Accreditation System (SANAS) indicated a lack of technical assessors who were responsible for accrediting forensic laboratories. SAPS therefore had to import expertise of foreign assessors, which was a costly procedure. She repeated that a full accreditation plan would be presented to the Committee in due course.
Mr George said that if the private sector were to get involved in the database, fewer costs may be wasted, citing the inability of the SAPS to implement the Firearms Control legislation properly. He wondered how the reports in the media that SAPS was to be downsized would affect the training of officers, and wondered how SAPS would ensure that police officers were trained properly, given the scarcity and busy schedules of medical practitioners already.
Maj-Gen Shezi responded that it was not for the SAPS to decide whether to train police officers to conduct DNA sampling. The National Health Act already required that all police officers be trained by medical practitioners, and SAPS had to comply with the Act.
Rev Meshoe asked for clarity on the assumption that the quality of the DNA database would be compromised if it were mandated to the private sector.
Ms Omar responded that there had not been an assumption if the database were to be privatised, its quality would be compromised.
Maj-Gen Shezi agreed, and said the quality of the database did not depend on whether it was operated by the private sector or by the SAPS. It would rather depend on whether there was adherence to legislative provisions, and whether the forensic laboratories were accredited.
Ms Irish-Qhobosheane added that if the database was housed in the private sector, the CSP would have less control over how DNA samples were used, and this would greatly impede the CSP’s constitutional obligation to be accountable to Parliament. She mentioned that the privatisation of the DNA database in the
Rev Meshoe cited a hypothetical example of a person who might be arrested on frivolous charges, claim innocence, yet have his or her DNA sample taken, and then claim violation of privacy. He wondered if the DNA legislation would be considered competent in this case. He also asked if SAPS had measures to ensure that an acquitted person’s DNA would be expunged within six months, and whether SAPS was able to abide by those time frames, to avoid challenges to the legislation.
Ms Irish-Qhobosheane responded that the DNA Policy would ensure that the legislation would indeed contain penalties for those who failed to expunge DNA of acquitted persons, within six months.
Mr Ndlovu asked why the Department of Home Affairs (DHA) was not included in the list of entities that would form part of the Oversight and Review team.
Ms Omar responded that the DHA had not been excluded deliberately, and its inclusion could be addressed in the Policy.
The Acting Chairperson said that this Committee would definitely recommend its inclusion, due to this Department’s involvement with fingerprinting and refugees.
Ms Irish-Qhobosheane assured the Committee that the policy would be amended to include the DHA as part of the Oversight Committee.
The Acting Chairperson reminded Members that the Criminal Procedure (Forensic) Amendment Bill was initially split due to the Committee’s concerns about human rights issues. She agreed with the point that the DNA Policy should include penalties in cases where provisions of the legislation were violated. She also sought clarity on the specific instances for which DNA samples would be taken, whether it would be taken directly after an arrest, or only when a person was charged.
Ms Omar said that a person arrested would only be required to provide a DNA profile if he/she was formally charged.
The Acting Chairperson confirmed that the word “charge” as referred to in the Policy, was not the charge laid by the detective, but rather the charge as confirmed by a court of law. Thus, if the arrestee was taken to court and the judge confirmed the charges against him/her, only then, according to the Policy, would s/he be required to provide a DNA profile.
Ms Van Wyk asked whether the Volunteer’s Index was for elimination purposes only, or whether it included cases of missing persons.
Ms Omar responded that the Volunteer’s Index included cases of missing persons.
Ms Irish-Qhobosheane added that according to the Policy, any DNA samples stored within the Volunteer’s Index may not be used for the purposes of criminal searches.
The Acting Chairperson asked how the SAPS would decide which officers should be authorised to collect DNA samples. She also pointed out that the Policy should use more assertive wording, and in particular phrases such as “profiles may be expunged” should be replaced with “profiles must be expunged”.
Ms Omar confirmed that “may” would be replaced with “must”.
The Acting Chairperson asked whether SAPS planned to populate the database by retrieving DNA samples from detainees awaiting trial, or already-convicted prisoners.
The Acting Chairperson asked if the Oversight Body would consist of a representative from each entity, as mentioned in the presentation by the CSP.
The Acting Chairperson asked how the chain of evidence, or the transporting of DNA samples from police stations to laboratories, would be managed and controlled. She requested SAPS to provide more detail about its implementation plan.
The Acting Chairperson noted that further details would also be needed as to how many police officers would receive training, particularly in light of the different shifts that they did, how many centres would deal with DNA samples, and whether the Bill might best be dealt with through the Property Control and Exhibit Management Solution (PCEM).
The Acting Chairperson asked how security between different indexes would be maintained. It was necessary to get assurance on how SAPS would ensure that DNA samples from the volunteer’s index did not get mixed with DNA samples of convicted persons.
The Acting Chairperson was concerned that the DNA Policy and the implementation plan was silent on training detectives, and needed to know how they would be trained to use DNA as evidence in court.
Ms Irish-Qhobosheane said that the DNA legislation would be an important tool for crime fighting in
Ms Kohler-Barnard cited the example that a badly decomposed body could be found from which no fingerprints could be taken, although it might be possible still to take DNA samples. She asked if the legislation could provide for DNA scanning through the database for the purposes of identification.
Maj-Gen Shezi said she was not mandated to respond to concerns about legislative issues, and could only answer concerns on implementation.
The Acting Chairperson said it was also important that the issue of fruitless expenditure was addressed in the implementation of the DNA Policy. The SAPS should avoid buying unnecessary toolkits, as many ended up discarded as they were out of date.
The Acting Chairperson reiterated SAPS should prepare a proper presentation of how it planned to implement the DNA Policy. Its implementation plan should focus specifically on issues such as the transporting of samples and the type of police officers who would be authorised to take DNA samples. Another challenge would relate to creating awareness of the DNA Policy. It was frustrating to hear that certain detectives were still unaware of the fingerprinting legislation that was passed a long time ago.
Mr George asked whether the Department of Health would be responsible for training police officers for taking DNA samples, or whether this would be outsourced.
Maj-Gen Shezi responded that the job of training would go out on tender and applications would close on 10 July. The number of police officers to be trained would depend on the capacity and capabilities of the company or businesses that ended up winning the tender.
The Acting Chairperson thanked the CSP and SAPS, and confirmed again that many of the issues would be addressed in more detail once the legislative process started. Members were generally satisfied with the Policy, and the Department was asked to start drafting the Bill
Deliberations on Committee Minutes and Reports
The Chairperson noted that an appropriate time would be found, during the following week, during which minutes could be officially adopted, but asked Members to consider them and give their comments in the meantime.
Committee meeting of 8 February 2012:
Ms Kohler-Barnard said that on page 2, the employment titles of two members of the Police Ministry were not included, and should be added.
The Acting Chairperson asked for clarity on the Rentacop Campaign in
Ms Kohler-Barnard thought the Rentacop Campaign was where people paid to use metro police officers to guard certain areas. She said she was not sure if this was correct.
The Acting Chairperson said this seemed to give an indication that the police sector was being privatised. She requested the Committee Secretary to check up on this issue, and give greater clarity before the Minutes were formally adopted. She noted that the issues had been dealt with and the minutes were essentially ready for adoption once this point was clarified.
Committee meeting of 14 February 2012
The Acting Chairperson indicated that job descriptions had to be inserted on page 2. She noted that she had not been present, and asked that her absence be reflected.
Ms Molebatsi took issue with the comment, on page 3, that SAPS were described as “common criminals who were locked out and evicted from buildings”.
The Acting Chairperson agreed that this was not appropriate wording, and should be deleted.
Committee meeting of 21 February 2012:
The Acting Chairperson asked that job descriptions be inserted on page 2.
Committee meetings 28 February, 6 March, 7 March
Members had no changes to suggest to these minutes.
Committee meeting of 13 March 2012:
Mr Ndlovu asked why certain words on page 2 were in brackets.
The Acting Chairperson explained that this did not form part of the Committee programme, and was a special meeting. It should be noted as such, even if the brackets were removed.
She then referred to page 5, noting that the former Chairperson had sent a letter to the Public Service Commission (PSC) asking it to investigate the matter, and asked the Committee Secretary to follow up.
The meeting was adjourned.
- PC Police: Briefing by the Civilian Secretariat of Police on the Policy Document on DNA; Adoption of minutes and reports 1
- PC Police: Briefing by the Civilian Secretariat of Police on the Policy Document on DNA; Adoption of minutes and reports 3
- PC Police: Briefing by the Civilian Secretariat of Police on the Policy Document on DNA; Adoption of minutes and reports 2
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