Criminal Law (Forensics Procedures) Amendment "DNA" Bill: draft of Committee's proposed changes

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31 July 2013
Chairperson: Ms A van Wyk (ANC)
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Meeting Summary

The Committee considered the Criminal Law (Forensic Procedures) Amendment Bill, continuing their deliberations of the previous day. Where familial searches were to be done, this matter should be handled in a sensitive way and at a senior level. Members asked for strict penalties for illegal disclosure of information resulting from comparative searches.

Members emphasised the need for international standards to be followed in the processing of samples. There was a concern that too much leeway was given in the requirements for processing of samples, as there was a feeling that the time limits might be abused. There should be a channel of reporting to the National Forensic Oversight and Ethics Board, leading to the Minister and to Parliament.

Members were concerned that the budget for infrastructure might be downgraded in the face of different priorities. It was noted that Parliament had the ability to adjust budget allocations as it saw fit. Offences and penalties were listed. While Members welcomed the prison sentences associated with natural persons, this might restrict the discretion of a magistrate in imposing sentence.

Members decided that the Secretary of Police should be responsible for creating an awareness programme and developing guidelines for training. Some additions were proposed to the regulations. Members felt the need to impose time limits for the delivery of samples to laboratories. Disciplinary action was needed where these limits were not respected.

Members proposed that some of the clauses be re-ordered. The importance of reporting to Parliament was emphasised. There was concern about the security of the National Forensic DNA Database, and the timely transportation of samples to the laboratories.

Members discussed the composition of the National Forensics Oversight and Ethics Board. It was agreed that the majority of its members should be from the private sector, although the limited number of such experts could result in conflicts of interest. The members would serve a term of five years, with the possibility of a renewal. The process of filling vacancies was reduced to a six-month period. Provision was needed for the removal of a member of the Board. Questions on the frequency of meetings and budget were also raised.

Members made some additions to the clause on the duties of the Board. There was a need for tighter control over disciplinary matters. A suggestion was made that the Committee should have more say in the appointment of the Board.

Members dismissed the clause on transitional arrangements. It was suggested that the Secretary of Police should take some responsibility. Specific matters raised were the question of investigations and trials before and after the implementation of the Act, arrangements for obtaining samples of all convicted offenders and those on remand. All new police recruits would be expected to provide buccal or other bodily samples, but it would be an infringement on the rights of existing members to extract such samples.

Members discussed the concept of being 'charged' with a crime. The decision was that samples would be taken from a person charged with one of the defined serious crimes shortly before the suspect was taken to court to be formally charged.

Meeting report

The Chairperson noted the meeting would resume where they had finished the previous day on page 45, using the new 31 July working draft of the Criminal Law (Forensic Procedures) Amendment Bill.

Clause 7 Insertion of Chapter 5B into South African Police Service Act (continued)

15M Missing persons and unidentified human remains index
Major-General (Maj-Gen) Philip Jacobs, SAPS, read the part of clause 7 that would insert a new section 15M into the SAPS Act. This section dealt with the Missing Persons and Unidentified Human Remains Index.

The Chairperson asked if the board should be involved in familial searches. A person might discover that he or she might be adopted.

Mr A Soman, Director: Legislation, Civilian Secretariat for Police, said that any applications for familial searches should first be approved by the National Forensic Oversight and Ethics Board, with recommendations.

The Chairperson asked if this was practical in the event of a natural disaster or an accident.

Mr V Ndlovu (IFP) said that working through the Board could cause unnecessary delays.

Mr M George (COPE) suggested that circumstances that might lead to embarrassment should be identified and listed. In certain situations, matters should be handled by senior SAPS members due to the ethics involved.

Maj-Gen Adeline Shezi, Head of Quality Management at SAPS Forensic Department, said that copies of all requests should be sent to the Board.

The Chairperson said that sensitivity was needed, but the Board should not be involved in every decision. Proper training for SAPS members was needed. This was a challenge.

Maj-Gen Jacobs said that some of the links might only become known during the interview and follow-up stage of an investigation.

Mr Ndlovu said that further thought was needed. Such determinations should be made before an investigation started. Keeping this responsibility at a senior level might obviate the problem.

The Chairperson asked if it would be practical to change the Bill to make reference to specialised SAPS officers to interview family members involved.

Maj-Gen Jacobs replied that in the event of an aircraft accident or a serial murder case, the investigation would be conducted at a high level anyway.

Mr George felt that experience in such matters was as important as being trained.

Mr Soman said that the Board could issue guidelines.

The Chairperson said that a similarly worded clause could be used as to the clause on expungement. A periodical report could be submitted to the Board, but it was important that senior SAPS members conduct the investigation. She suggested that SAPS be obliged to develop guidelines, training and policy on this matter. This could not really be legislated. SAPS would have to deal with such investigations in a sensitive manner. The Board should be notified.

Mr George felt that the Minister should be leading this process. His experience of SAPS was that they changed their policy at regular intervals.

The Chairperson agreed that policy was the terrain of the Minister. She suggested that the issue be prescribed in the Regulations.

15N Comparative forensic DNA search and communication of information
Maj-Gen Jacobs read the clause to insert section 15N, dealing with comparative forensic DNA search and communication information. Some of the wording might need to be reviewed.

Ms A Molebatsi (ANC) asked what provision was made for penalties.

Maj-Gen Jacobs said that the clause on penalties made provision for a prison sentence of fifteen years for illegal disclosure of information. He suggested that sub-clause (d) be amended by changing the word 'or' to 'of'.

The Chairperson raised a concern over the Child Protection Act.

Mr Theo Hercules, State Law Advisor (SLA), felt that this was advisable.

15O Foreign and international law enforcement agencies
Maj-Gen Jacobs read the proposed section 15O, dealing with foreign and international law enforcement agencies. Some words had been inserted for clarity.

Members agreed with this clause.

15P Compliance with quality management systems
Maj-Gen Jacobs read the proposed section 15P, dealing with compliance with quality management systems.

The Chairperson said that International Organisation for Standardisation (ISO) standards must be followed. This should be specified in the Bill. This might influence the accreditation issue, and force SAPS to stop dragging its heels on the issue.

Maj-Gen Shezi said this would be done.

15Q Analysis, retention, storage, destruction and disposal of samples
The Chairperson asked for clarity on which chapter was being referenced in sub-clause (4). She asked if samples other than crime scene samples were being kept.

Maj-Gen Shezi said that they were being kept.

Mr George referred to sub-clause (1). He asked if samples were being processed within thirty days at present. He was concerned that the qualification of 'compelling reason' might be used to allow SAPS not to conduct investigations promptly.

Maj-Gen Shezi said that a manual system was being used at present. The new system would allow the samples to be processed within thirty days. This system should be ready by November 2013.

The Chairperson shared Mr George's concerns. The deadline of November might be shifted. It would be good to place this obligation as it would pressurise the departments involved.

Maj-Gen Shezi was comfortable with the Bill reading 'within thirty days'.

The Chairperson could recall two pieces of legislation in which SAPS were given excuses to fail to follow the requirements.

Maj-Gen Jacobs replied that the Board would be kept informed. The Board was meant to provide oversight, and would report to the Minister if it disagreed on the 'compelling' nature of the excuses put forward.

The Chairperson said that wherever the Board was referenced, there should be a line drawn from the Board to the Minister and ultimately to Parliament.

Mr Soman said that the Secretariat also had an oversight function, and would also consider the reasons offered.

Mr George was worried about leaving everything to the Board. The Independent Police Investigative Directorate (IPID) law had been strengthened, but this did not seem to have changed the behaviour of SAPS members. This law had to have teeth or else it would be ignored.

Maj-Gen Shezi said that the time frames should rather focus on laboratory processes. This should be run in accordance with international best practice.

The Chairperson said that samples might not reach the laboratory in time. She had seen a huge number of samples at the SAPS station in Upington which had not yet been delivered to the laboratory. The authorised officer would be obliged to report on the 'compelling reasons'. She suggested that there should be provision for disciplinary action if the procedure was not followed.

Maj-Gen Shezi said that there was provision in the clause on the Board to institute disciplinary proceedings where appropriate.

The Chairperson suggested that the clause be extended to including the loading of profiles onto the DNA database.

Maj-Gen Shezi accepted this proposal.

15R Infrastructure
Gen Jacobs read the proposed section 15R, dealing with infrastructure.

The Chairperson asked if it was necessary to specify that the National Commissioner referred to was the SAPS Commissioner.

Mr George asked where forensic services would fit in with the SAPS priorities. The budget for developing forensic infrastructure might be downgraded in terms in this regard.

Mr Ndlovu said that forensic investigations were part of the core business of the SAPS. Infrastructure related to this should not be downgraded.

The Chairperson reminded Members that it was up to Parliament to oversee the work of SAPS. Parliament had the power to remove the National Commissioner. Parliament's budget office made it possible to change the budgets. She was satisfied that there was enough provision for oversight. National Treasury had also reacted by insisting on proper financial plans.

15S Offences and penalties
Maj-Gen Jacobs continued with the proposed section 15S, which contained the offences and penalties. This specified three offences, with a maximum sentence of fifteen years for a natural person and a fine for a juristic person.

Ms D Kohler-Barnard (DA) was happy that there was no option of a fine for a natural person, but she wondered if this would be reducing the discretion of a judge.

The Chairperson asked if the phrase 'from a person' was necessary in terms of bodily samples.

Maj-Gen Jacobs said that in some older legislation a maximum fine was prescribed.

The Chairperson said that communication of information was not covered. This matter had been raised in 15N.

15T Awareness and training programmes
Maj-Gen Jacobs read the proposed section 15T, which dealt with awareness and training programmes. The order of the clause had been changed.

The Chairperson said that the Committee had requested the change in sequence in that the Secretary for Police should first develop the policy before the awareness programme.

Mr Soman said that the Secretary was reluctant to become involved in operational matters. He proposed that the Secretary must ensure that the guidelines be developed and implemented, or that the Secretary be responsible for review of policy.

The Chairperson said that the Secretary would sit on the Board. Members agreed that the first proposal be accepted and included in the Bill.

15U Regulations
Maj-Gen Jacobs read the proposed section 15U, dealing with regulations.

The Chairperson said that there were outstanding issues. Regulations would be needed on familial searches arising from the discussion earlier in the meeting, and for the definition of a 'designated place'. Procedures regarding the destruction of biological samples were already prescribed in other legislation. She asked if the wording could be more concise.

Ms D Bell, Chief Director: Legislation, Civilian Secretariat for Police, said that regulations would also be needed on expungement.

Maj-Gen Shezi said that 15(1)(h) should actually address expungement.

The Chairperson suggested that 15(1)(h) should address the destruction of samples, and a new sub-clause was needed for expungement. Regulations might also be needed regarding the Board.

Mr George asked what procedure would be followed if samples were not processed in time.

The Chairperson would return to that matter later. The first priority was to regulate the Board. In 15(1)(f) the reference should be to deoxyribonucleic acid (DNA) profiles and crime scene samples.

Maj-Gen Jacobs said that this should be crime scene profiles.

The Chairperson said that parties might want access to the samples. She called a brief adjournment so that the delegation could discuss this issue. In the past, not all crime scene samples had been profiled. This did need to be included.

Maj-Gen Jacobs said that crime scene samples should be included, but as a separate sub-clause.

Ms Kohler-Barnard said that all samples should be processed within the given time. She asked what provision there would be for informing victims of the progress of the investigation.

Maj-Gen Jacobs said that there was no provision for a time limit on sending samples to the laboratory.

The Chairperson asked that this be included.

Ms Kohler-Barnard felt that thirty days for delivering samples to the laboratory was outrageously long.

The Chairperson said that section 15Q only spoke to buccal samples. It might be better to change this to read all samples.

Maj-Gen Shezi said that there should be a separate listing for the different types of sample. At present only the buccal sample processing was automated.

The Chairperson said that section 15Q would have to be expanded. She asked the legal team to work on this before the next meeting. The transportation of samples to the laboratory also had to be considered.

Ms Kohler-Barnard said that a huge problem was rape kits sitting at SAPS stations for extraordinary lengths of time. No officers were held accountable. She asked where the stick was to enforce SAPS members to abide by the legislation.

Maj-Gen Shezi said that the Board could take a decision on disciplinary action. The regulations would speak to the preservation and transportation of samples.

The Chairperson wanted to be specific on the responsibilities of commanders, not just station commanders. Leaving this issue to regulations was not enough, and had to be addressed specifically in the legislation.

15V Parliamentary oversight
Maj-Gen Jacobs read the proposed section 15V, dealing with Parliamentary oversight.

The Chairperson said that 15V(4) should make the report part of the annual report.

Ms Molebatsi asked if this section would commence at the same time as the rest of the Act.

The Chairperson agreed. She also felt that the clause relating to the Board should appear before that dealing with Parliamentary oversight. The clause on regulations should also be moved to a position after that on the Board.

Maj-Gen Jacobs said that the clause on oversight would be moved to just before that on transitional arrangements.

Ms Kohler-Barnard said that in the Annual Report there were reports on the workings of the forensic laboratories. These could be more detailed. There should be a report on the backlogs. She asked if this would be part of the forensic laboratory feedback.

The Chairperson said that this was reported in the section on detective services. This clause would mandate specific areas of reporting.

Mr George agreed that the report should be submitted annually, but also as necessary. A matter might arise needing Parliament's urgent attention.

The Chairperson felt that such a provision should be included in the clause dealing with the Board. This would not prevent Parliament from calling any body to appear at any time. The laboratories were actually doing well.

15W National Forensic DNA Database
Maj-Gen Jacobs read the proposed section 15W, dealing with the National Forensic DNA Database (NFDD). This section had been copied from other legislation with specific references.

Mr George agreed with the content of the clause, but did not see any consequences for a breach of the law. He asked if this was the same unit where he had seen boxes of unused equipment.

The Chairperson felt that it was difficult to legislate for such matters. They fell within the performance agreement concluded between the Minister and the Commissioner. Again she felt that the issue of unlawful communication had not been addressed.

Maj-Gen Jacobs replied that the issue fell under oversight provisions.

The Chairperson felt that the earlier obligation placed on the Secretariat should also be included on this matter. She pointed out an incorrect reference in 15W(4) to 'chapter', which should be 'section'.

Maj-Gen Jacobs said that in 15W(3) there was a reference to security procedures. National legislation applied in this case.

Mr Ndlovu asked why the Secretariat had to be reminded of their duties.

The Chairperson said that this was more in the line of creating an obligation than giving a reminder. This clause dealt with security arrangements.

Ms Kohler-Barnard asked if there were perhaps not other areas for the Secretariat and their provincial branches to conduct oversight, such as transportation of samples. Someone had to be checking on this.

The Chairperson felt that there was enough oversight being done. The findings of the Secretariat were very similar to those of the Committee. Security measures needed to be put in place, but SAPS could not abdicate its own responsibilities. Transport of samples was an operational matter, and could be checked by the Secretariat. Samples were often so badly marked that it might be difficult to determine when they were taken. Any cases of loss or damage should also be noted as an offence with consequences.

Mr Soman asked if the National Commissioner should be obliged to report to the Minister.

The Chairperson said that the National Commissioner should report to Parliament through the Board and the Minister on any breaches of the law.

Mr George understood this. The roles of Secretariat and operational divisions should be clear. The National Commissioner reported to the Minister, and could do nothing without the Minister's endorsement.

The Chairperson said that the Commissioner should report to Parliament and the Board. The Board should be reporting to Parliament. SAPS would not be part of the Board.

Mr George was unsure. The National Commissioner was the Accounting Officer for SAPS. If the report came from the Board, he or she could deny knowledge of the matter.

The Chairperson said that breach of security was important enough to be specified. This would compromise the human rights of those involved.

Mr Ndlovu suggested that the clause be left as published.

15X National Forensic Oversight and Ethics Board
Maj-Gen Jacobs read the proposed section 15X, which would establish and compose the National Forensic Oversight and Ethics Board. Provision had been made for a senior advocate to chair the Board if no retired judge was available. Provision was made for renewal of terms of office in order to ensure continuity.

The Chairperson commented on 15X(2)(a). She suggested that these people should come from outside the public sector.

Mr George said that there had been extensive discussion on the Board. He would be more comfortable with an exact number, rather than the current wording. He proposed that the number be set at five. The Board must be funded from the Minister's budget allocation.

The Chairperson understood that Mr George was arguing that the Board members from the private sector should outnumber those from the public sector. However, forensic science was not a big field and it could be difficult to find that number of suitable public sector representatives.

Ms Kohler-Barnard asked if the number of five would include the Human Rights Commission (HRC) representative and the judge. The qualifications of private sector persons should be reviewed.

The Chairperson agreed. The representative of the HRC could be seen as one of the public sector representatives.

Mr George said that this would leave the Board at ten people. He did not think it would be a problem staffing the board.

The Chairperson felt that there might be a conflict of interests if members of the industry were part of the private sector representation.

Ms Molebatsi preferred specifying three, four or five.

The Chairperson felt that this could be the public sector in the majority.

Mr Ndlovu suggested five.

Ms Kohler-Barnard said that many experts worked in the field still. Such persons could bring expertise that was needed. Excluding any person working for a private laboratory might be counter-productive.

The Chairperson noted that Members were in agreement that there should be five members from outside the private sector. The criteria should include knowledge of human rights law. There would be three representatives from the public sector together with a representative of the HRC.

Mr George felt that the period of one year to fill vacancies was long.

The Chairperson agreed, but reminded Members that there was a public nomination process to be followed.

Mr George said that response for public hearings was normally received within a fortnight. The public was eager to participate. The experts on the Board would be professionals who would ensure that the integrity of the profession remained intact. Even public service representatives might bring their own agenda.

Maj-Gen Jacobs said that the Secretariat should indicate their opinion as they would assist the Minister.

Mr Soman had heard the comments and would be guided by the opinion of the Committee. He felt that a time frame of six months was doable.

Ms Kohler-Barnard asked how this had been addressed in other legislation. Similar processes were described.

Mr George said that the requirements had already been set. All that the Minister had to do was advertise the positions. There would be a limited number of applications. He felt that six months was reasonable.

Mr Ndlovu said that the Committee always complained about how long the Minister took to make appointments. With the exiting Board members, he could not see any problem with a six-month limit.

The Chairperson said that the Committee had decided. It was up to politicians to make policy. The clause must be amended to read six months. She asked why the term was prescribed as 'not exceeding five years'.

Mr Soman said it would be better to have some flexibility.

The Chairperson accepted this. She asked when the Board would be appointed. Six months after commencement of the Act might be too short. The Board needed to be in place as it would have to be acting from the date of implementation. She suggested that the first Board should be appointed before the commencement of the Act. The process of identifying the members should start immediately. The legal team needed to find an appropriate place to place this provision, even in the transitional arrangements.

Mr George asked about the budget.

The Chairperson said that there was a sub-budget for the Ministry in the SAPS vote.

Mr George said that SAPS was known to be slow in spending its budget. The budget allocation for the Minister might have to be revised.

The Chairperson said that the initial discussion was to have the budget under the Secretariat. It was a part-time board without full-time representation. The functions given to the Board would determine the size of the Board's secretariat. This should be a full time secretariat.

Mr Sisa Makabeni, State Law Advisor, suggested a provision for removal of members of the Board.

The Chairperson agreed, and asked the legal team to look at other legislation for a guide. She proposed that the Board should meet at least once a quarter.

Mr George was happy with the proposal, but thought that they would meet monthly.

Ms Kohler-Barnard said that budgetary considerations were necessary. If there was no minimum requirement the Board might not meet at all, but if there was no maximum number of meetings then it could be an expensive exercise.

The Chairperson said that the Board would meet often while it was being established. She agreed on a minimum frequency of quarterly.

Ms Kohler-Barnard suggested that the minutes of meetings be made available to the Committee.

The Chairperson did not feel this necessary. The reports should be enough.

Mr Ndlovu said that the principle of oversight was to look at who attended, when the meeting was held and what was discussed.

15Y Functions of the Board
Maj-Gen Jacobs read the proposed section 15Y, which specified the functions of the Board.

The Chairperson asked why only certain parts of the legislation were being addressed. In 15Y(1)(b) she proposed that the question of ethical, legal and social implications should be addressed in a separate sub-clause. 15Y(1)(c) should include a reference to familial searches.

Adv Swartz proposed that the wording of 15Y(1)(c)(i) should also include reference to collection, retention and storage of samples.

The Chairperson said that the sub-clause also needed to cover all breaches of the system.

Maj-Gen Shezi proposed that there should also be provision for oversight over the quality management system.

The Chairperson said that the Board should be proactive in looking for breaches.

Ms Kohler-Barnard asked if there was a provision that any breach must be reported.

The Chairperson said that this was in the clause on security. 15Y(1)(d)(iv) would read better by replacing 'them' with 'complaints'.

Mr George felt that the Board would gather information as part of its work.

The Chairperson felt that 15Y(1)(d)(ii) could be rephrased. The proposal on the expungement of arrestee profiles on request as discussed the previous day should also be included in the clause. There should be some obligation on the Commissioner. She proposed a time limit of providing feedback within ninety days of receiving the report. The National Commissioner must report back to the Board. The requirement to provide compelling reasons for the failure to analyse samples within the time limit should be included in this clause, as well as the need for the Board to interact with regulations.

Mr George was worried about 15Y(3). There must be some limit on the ability of the Board to establish committees.

The Chairperson felt that there was no choice but to allow this. She expected much of the Board's work, especially initially, to be dealt with in sub-committees. In fact, 15Y(3) spoke to 'a committee'. This should be changed to 'committees'.

15Z Procedure for handling complaints
Maj-Gen Jacobs read the proposed section 15Z, dealing with the procedure for handling complaints.

Ms Kohler-Barnard asked if the information channelled to the Executive Director of IPID would go to the acting head, in the continued absence of a permanent appointment.

The Chairperson said that the acting head of IPID would receive the same consideration as a full time appointee. Sub-clause (4) should be changed from 'consideration' to 'further action', and the outcome must be reported to the Board.

Mr George said that there was a trend in SAPS management to ignore anything to do with disciplinary matters. Sub-clause (5) should set time frames.

The Chairperson stopped Mr George, as the next section would deal with this matter.

15AA Disciplinary recommendations
Maj-Gen Jacobs read the proposed section 15AA, which made provision for disciplinary recommendations. In sub-clause (2), the wording had been chosen to match the regulations. The SAPS labour relations department had made a recommendation in this regard.

The Chairperson felt that the wording of sub-clause (2) was a joke. Disciplinary action had too much leeway at present. References to the National Commissioner should include references to the Executive Director of IPID.

Maj-Gen Jacobs said that the initial provision of 90 days had been reduced to 60 days. This was not an attempt to subvert the proposals put forward by the Committee.

The Chairperson said that sub-clause (2) should be expanded to provide that even if disciplinary action were not completed within the prescribed period, it would not invalidate that action.

Mr George said that the Board had to act immediately if action was not taken immediately on such a situation arising. Such eventualities had to be reported to the Minister and Parliament.

The Chairperson said that some of what Mr George had said was covered, but it would do no harm to specify that actions must be reported to the Board and to the Minister with the reasons for the matter not being finalised.

Ms Kohler-Barnard had looked into the matter. Many boards were appointed through Portfolio Committees. This power should not be handed over to the Minister in this case.

The Chairperson said that the functions of the Board should include the review of disciplinary outcomes. She asked that the legal team ensure that everything regarding the Board had been covered in the discussions. The Board would have to report on all its functions.

Clause 8 Transitional arrangements
Maj-Gen Jacobs said that clause 8 would make provision for transitional arrangements. These were in line with the arrangements in other Acts. Prosecutions that were already in progress would be handled as if the Act had not been passed.

The Chairperson felt that there was an inconsistency in the wording of Clause 8(1). There could not be a reference to 'the Act'. There was also a problem with the use of 'this section'.

Mr Makabeni agreed with the drafting of Clause 8(2) and (3).

The Chairperson assumed that this would not preclude someone from applying for exoneration.

Mr Makabeni said that the exoneration clause would come into effect together with the Act.

Adv Swartz felt that the exoneration principle only came into effect in regard to convicted offenders.

The Chairperson said that persons before the court would be unable to use this Act to prove their innocence, while SAPS could not use it to prove guilt either.

Mr George asked if an accused could ask for a DNA test to be done during a case that had been going on for some time.

The Chairperson said that sub-clause (1) was saying that new evidence could not be brought before the court.

Adv Swartz said that the rules of evidence would dictate if evidence could be offered.

The Chairperson said that the new Act would be excluded in the case of any pending case.

Mr George asked if it would be allowed to introduce new evidence at the end of a trial.

The Chairperson said that the wording of Clause 8 would not allow this.

Maj-Gen Jacobs said that the legal team had been tasked to look at transitional arrangements in general. The fact that a new Act came into force should not interfere with current litigation.

Adv Swartz said that the provision could be just to the samples taken before the Act came into force, and not court proceedings.

The Chairperson felt that the team had not thought this through.

Brigadier-General (Brig-Gen) Portia Lesese, Section Head SAPS, said that either side would be able to apply for the introduction of new evidence.

The Chairperson said that the court could, even at a late stage, consider allowing new evidence. This was being explicitly being denied in this case.

Mr George said that the presiding officer would make the decision

Maj-Gen Jacobs proposed that the clause be removed.

The Chairperson said that the clause had been put in for a purpose.

Maj-Gen Jacobs admitted that he had inserted the clause based on how he had understood the instructions of the Committee.

The Chairperson instructed that the clause be removed unless some compelling new argument was presented.

Maj-Gen Jacobs said that when a blood or DNA sample was needed, this had to be done by a doctor or registered nurse. There had been no problem with this in the past. It might be better to omit this section. There was a chance of unintended consequences.

Mr Hercules said that it should not affect the case if the evidence was already before the court. Definitions for 'casework', 'index' and 'reference index' should be included.

The Chairperson said that if something was only used once it did not have to be defined.

Mr Hercules said that there could be a definition in the clause itself.

Maj-Gen Jacobs said that the repository was divided into two, namely casework, and the index and reference index. It might be difficult to define this.

The Chairperson asked the team to reach clarity on this issue.

Ms Kohler-Barnard was concerned with the arbitrary figure of four years for the implementation of the system.

The Chairperson said that the figure of four years came from a presentation made to Parliament. If SAPS was unhappy with the four-year limit, it would be their own fault.

Mr George felt that four years was fair. SAPS would have to explain to Parliament if it could not meet this deadline.

The Chairperson said that the destruction of current samples should also be addressed in this clause.

Mr George was unclear about what was to be extended by sub-clause (8).

Maj-Gen Shezi said that the cross-reference was correct. Clause 8(8) must be removed.

The Chairperson said that Clause 8(6) should include an obligation to report to the National Assembly (NA). Clause 8(7) was not necessary, as all transition arrangements fell away after a specified time.

The Chairperson said that Clause 8(9) was incorrect. Persons in remand centres were generally not convicted. Some accused persons sometimes sat in SAPS cells for several years. This was to be corrected.

The Chairperson asked if it was enough that a buccal sample be taken from those convicted of a Schedule 8 offence. This should not be a blanket provision for all persons released on correctional supervision. A list was needed of such persons and it should be ensured that the sample was taken from the correct person.

Ms Kohler-Barnard asked if DNA samples would be taken from all SAPS members.

The Chairperson said that there had been an indication that there might be a constitutional challenge. The arrangement was that samples would only be taken from new recruits.

Mr Hercules said that there were certain National Economic Development and Labour Council (Nedlac) procedures in place. Testing current members would violate their conditions of employment, although voluntary samples could be provided.

Ms Kohler-Barnard understood this. She could not understood what challenge could arise if the profiles were stored in an exclusion index.

Ms Molebatsi said that the elimination index had been discussed. This could perhaps be raised under this clause.

Maj-Gen Shezi said that there was an elimination database, but not a voluntary database. She could not confirm if the profiles were linked to a name. SAPS members were always likely to leave DNA samples through the nature of their work.

The Chairperson concluded that if a crime were to be committed in the room, the SAPS could not take samples from all present. She asked the team to consider this in their deliberations. In Clause 8(11) it was important to specify that this was a responsibility of the National Commissioner of the SAPS to avoid confusion. She asked what would be done with those on parole.

Mr George was considering the practicality of the four-year transition period. Parolees would not happily come forward to be tested.

The Chairperson said that the four-year period referred to the system. All of this sampling should have been done by then. SAPS should be smart enough to start with those whose sentences were almost over. It should be up to SAPS to ask for the list of offenders to be required in the law.

Maj-Gen Shezi said that it was the responsibility of the National Commissioner of the Department of Correctional Services (DCS) to provide the lists.

Mr George contradicted this. A lady from DCS had said that this was not their problem. SAPS was responsible for how the samples would be taken.

The Chairperson said that the sample must be taken by a SAPS officer.

Maj-Gen Shezi said that DCS would assist by ensuring that the inmates were available for sampling. The National Commissioner of DCS was the custodian of prisoners.

The Chairperson said the issue was about those on parole. There had been detailed discussion of this issue the previous day. Maj-Gen Shezi had not been present for the discussion. DCS would give SAPS a list of people to be sampled. SAPS would have to make arrangements from the court or parole officer where the person under supervision had to be report.

Maj-Gen Shezi said that this was relegating the responsibility of DCS. The logistics should be made available to the SAPS.

The Chairperson said it was the responsibility of SAPS to conduct the sampling.

Mr George was disappointed with Maj-Gen Shezi's argument. SAPS would have to make arrangements to visit prisons. Once DCS had provided a list of those under supervision or on parole, it would be the responsibility of SAPS to find these people and take the samples. Only one body could take responsibility, and that was SAPS.

The Chairperson found that the transitional arrangements were very weak. SAPS should be telling the committee what they needed and not the other way around. She was frustrated that the need for these arrangements had been left until being instructed by the Committee. The whole clause needed to be redrafted. Since the start of the process, Members had stressed the need for transitional arrangements. There was no reference to the Memorandum of Understanding (MoU) between SAPS and DCS, as suggested by the Committee. Parole was managed by DCS. SAPS wanted the DNA samples.

Maj-Gen Shezi asked why the assistance of the National Commissioner of the DCS was then still needed.

The Chairperson admitted to being spiteful, but was irritated by the weak nature of the transitional arrangements.

Mr Ndlovu said that Maj-Gen Shezi had been absent during the discussion. Five paragraphs had been found to be lacking. He proposed that the legal team discuss these paragraphs and revert to the Committee.

The Chairperson felt that Mr Ndlovu was being too nice. The team should have applied themselves to this question some time previously.

Mr George said that it was not just Maj-Gen Shezi representing SAPS. It seemed that there had been no application of mind by the team in drafting this section. There had been a lot of cutting and pasting from other legislation. He hoped that better transitional arrangements would be produced the following day.

The Chairperson was getting tired of this issue. Clause 8(12) was also problematic. She felt that Members were wasting their time by going through this clause. She instructed that full consideration be given to the transitional arrangements before the meeting the following day. Some of the sampled SAPS members might well have left the Service, and should be deleted from the index. The disposal of current DNA samples needed to addressed. This could not be left to the discretion of the SAPS, and was a human rights issue. She wanted to see a cleaned-up Bill the following day.

Clause 9 Repeal of legislation
Maj-Gen Jacobs said that clause 9 would repeal earlier legislation. The Firearms Control Act and Explosives Act would be repealed with the exception, in the case of both Acts, of section 4.

The Chairperson repeated her disappointment with the lack of proper consideration to transitional arrangements. This message should be relayed to the Secretary of Police, as legislation was ultimately the responsibility of the Secretariat.

Review of changes made at previous meeting
Maj-Gen Jacobs reviewed the changes made the previous day. There was a financial implication if samples were taken from a person arrested but released without being charged in court. An SAPS member reading a suspect his or her rights did not amount to being charged.

The Chairperson said that the Committee needed to reconsider this clause. SAPS might have to have specially trained officers at every court in order to take samples. This would lead to an increased risk of escape.

Mr George said that an SAPS officer must advise an arrested person that he was being charged with a certain offence. Human rights dealt with prejudice. There was no prejudice in taking a DNA sample.

The Chairperson reminded Members that this was the Committee's Bill and not SAPS. The problem of formal charging had to be overcome to the Committee's satisfaction.

Ms Molebatsi said that the law prescribed that charges must be laid within 48 hours. She asked if this could be done on arrest or only at court.

Mr Ndlovu said that Members had agreed that 'arrestee' was the wrong word. Some charge had to be laid first.

Ms Kohler-Barnard put forward a possible solution. The clause could be changed to prescribe that the sample must be taken at the SAPS station immediately prior to the accused being transported to court. On the other hand, many people were arrested and the cases thrown out of court.

The Chairperson suggested that the clause make provision for a person about to be charged in court for a Schedule 8 offence to be test before appearing in court.

Mr George was still unhappy with the concept of being charged.

The Chairperson said that the term 'charged' was used loosely at SAPS stations. The court should not be the primary place of taking DNA samples. Persons arrested had to be informed of why this had happened. This was referred to as a charge. The court could still change the charge. The sample should be taken before that person appeared in court.

Maj-Gen Jacobs thought this would help a lot. In terms of section 31 of the Constitution, any person arrested had certain rights, including the right to appear before a court within 48 hours, and to be charged by the court. It often happened that a charge sheet was filled in at an SAPS station. It was up to the prosecutor to decide on which charges the person would stand trial. Referring to Schedule 8 would limit this to the most serious crimes, and issues of unlawful arrest would be minimised.

Mr Ndlovu disagreed. He read section 35E differently. If he were to be arrested he would expect to be told why.

The Chairperson understood both points of view. Perhaps the term 'formally charged' would address the confusion over the term 'charged'.

Ms Kohler-Barnard said that the sample must then go to the laboratory, but an hour later the magistrate could dismiss the case. While the person walked free, the sample might still be processed. This could lead to legal challenges.

Mr George said that the SAPS might have reasonable suspicion, even if the case was subsequently dismissed.

The Chairperson said that the magistrate was unlikely to apply his mind at a first appearance. This was normally only for the formal charging. There would be a retrospective effect. The Minister of Justice could declare a crime for which persons already convicted could be required to provide DNA samples.

The Chairperson said that the retaking of any sample must include samples taken by the person him or herself.

Maj-Gen Jacobs assured the Committee that the correct cross-references had been inserted into the amendment of section 36E of the Criminal Procedure Act (CPA).

The Chairperson asked if 'sample' had been defined.

Mr Hercules said that the context was clear from the preceding words.

Maj-Gen Jacobs read Clause 4(b) which had been amended.

The Chairperson asked if it was necessary to use the word 'sample' repeatedly. It might be better to do so for clarity.

Maj-Gen Jacobs read Clause 5, which would amend section 225 of the CPA. Sub-clause (1) had not been changed.

Maj-Gen Jacobs moved on to Clause 6, which would be the insertion of Schedule 8. The crimes under this Schedule were listed.

The Chairperson said that certain crimes, such as forgery, had been excluded by the Committee but were still included in the list. Malicious damage to property was another example.

Ms Kohler-Barnard questioned the absence of attempted murder and drug-related crimes.

Maj-Gen Jacobs explained that there was a category for conspiracy, incitement or an attempt to commit any of the crimes listed. Many of the statutory offences were listed in Schedule 1 with a sentence of more than six months.

Maj-Gen Shezi said that drug-related crimes led to more serious offences. The courts only regarded possession of dagga as an offence if it exceeded a certain quantity.

The Chairperson said that many people were arrested in the Cape for possession of a minimal amount of dagga.

Ms Kohler-Barnard said that this should be particularly targeted at dealers and those using more dangerous drugs such as tik. Such people were often psychotic while under the influence of drugs.

Maj-Gen Shezi said that including a blanket category of drug-related crimes would be too wide.

The Chairperson said that this must be considered. Malicious damage to property and forgery should be removed.

Maj-Gen Jacobs said that the items had not been bulleted as this was the way they appeared in the CPA. He had compared the sentences in the Minimum Sentences Act, and he felt that these had been covered.

The Chairperson noted the reference to the Firearms Control Act and Explosives Act. She asked if there was anything in the Dangerous Weapons Act.

Maj-Gen Jacobs said that the consideration would be on violence perpetrated following an offence under that Act.

Maj-Gen Jacobs read through Clause 7, which would amend Section 15 of the SAPS Act.

The Chairperson noted the satisfaction of Members with the changes made.

Maj-Gen Jacobs said that there had been no further amendments to the clause on objectives of the chapter.

Maj-Gen Shezi said that the proposed section 15G(3) might have to be discussed further. This referred to the head of a laboratory. There had been no opportunity for other members of the team to give a different input before the document had been prepared.

Mr George asked where the head of a laboratory fell in the hierarchy.

The Chairperson said that a clear differentiation was needed. Sub-section (2) would speak to the processes and (3) to samples. The clause had been drafted in the light of international requirements. She instructed the legal team to revert to the Committee with a single opinion the following day.

Ms Molebatsi asked if SAPS ranks were used within IPID.

The Chairperson said that there were no ranks within IPID. Authorised officers were so designated on the basis of their position and training.

The meeting was adjourned.


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