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

Meeting report

The Chairperson invited the South African Police Service (SAPS) legal team to point out the drafting changes that had been effected since the Committee met the previous day.

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

15G Establishment of National Forensic DNA Database
Major-General (Maj-Gen) Philip Jacobs, SAPS, read the proposed insertion of section 15G into the SAPS Act. This provided for the establishment of a national forensic deoxyribonucleic acid (DNA) database (NFDD). The issue of custodianship of sample and the independence between the sample and profile had been addressed

The Chairperson asked if this was an area where regulations were needed.

Maj-Gen Jacobs said that there were two different commanders responsible. The Divisional Commander should have overall responsibility.

Ms D Kohler-Barnard (DA) asked how the definitions had changed.

Maj-Gen Jacobs explained how the definition of ‘authorising officer’ had changed.

The Chairperson explained that this definition would appear in the SAPS Act, while the definition in clause 3 of the Bill would amend the Criminal Procedure Act (CPA).

Ms Kohler-Barnard asked if all the indices had been captured in the clause. It would be difficult to amend the Act for some time.

The Chairperson said that SAPS could come back to the Committee with amendments if needed.

Ms Kohler-Barnard spoke to the question of elimination.

The Chairperson said that samples taken to eliminate suspects now fell under the Investigative Index. Profiles not needed would be deleted once the case was completed.

15H Crime scene index
Maj-Gen Jacobs read the proposed section 15H. This provided for the crime scene index.

The Chairperson noted the agreement of Members.

15I Arrestee Index
Maj-Gen Jacobs read the proposed section 15I. This provided for the arrestee index. The Committee had been adamant that the profile of a child should not be kept for longer than one year.

Adv Desiree Swartz, Parliamentary Law Adviser, had studied the situation surrounding the certificate nolle prosequi. A private prosecution could still follow and the samples would have to be retained for three months. A state prosecution could still follow.

Maj-Gen Jacobs said that if a decision was taken not to prosecute, then the accused had the right to have fingerprint records deleted. The law on fingerprints did not cater for nolle prosequi.

Ms Kohler-Barnard raised the case of a prosecution being provisionally withdrawn and charges subsequently being re-instated.

The Chairperson suggested that 15I(2)(a) should rather be moved after 15I(5).

Maj-Gen Jacobs agreed that it could be moved to (5). It would be aligned with fingerprint legislation.

The Chairperson said that the nolle prosequi and withdrawal of charges would then be treated in the same manner.

Maj-Gen Jacobs said that it would normally be clear if charges had been permanently withdrawn.

Mr M George (COPE) said that 15I(2) did not stop a prosecutor from re-instating a charge. If the changes were made, a new sample would have to be taken.

Maj-Gen Jacobs had reached the same conclusion as Ms Kohler-Barnard. If the prosecutor asked for provisional withdrawal, pending further investigation, it would be clear that the charges still stood.

The Chairperson asked if the clause still covered all forms of non-prosecution.

Maj-Gen Jacobs said that the fingerprint legislation had been around since 1955. There was no problem in interpreting that section.

Mr George asked how long it would take an investigating officer to know that a case had been dismissed. He was worried about having to wait for sixty days. SAPS should have some responsibility.

The Chairperson said that a person could apply for expunging, which would be done immediately. This was not what the Committee had said. If no application was received, then the profile could not be retained longer than the time frames in the clause.

Maj-Gen Jacobs said that such a phrase could be inserted for clarity.

The Chairperson felt that standards were being lowered. 'Within' was used where she felt 'not longer than' would be more appropriate. She disagreed that the two terms were synonymous. Having 'not longer than' would put more of an obligation on SAPS.

Mr Theo Hercules, State Law Adviser, agreed that the focus had been changed, and the wording could be changed.

Mr George was not against putting a responsibility on the clerk of the court, but the SAPS also had to carry some responsibility. An investigating officer should know what was happening with the case.

The Chairperson said that the communication from the court would be an official notification, and this reduced the possibility of evidence being destroyed. SAPS must inform the applicant when the profile was removed from the index, but she did not see any provision for this. The Board must also be informed about the application and the destruction.

Ms Kohler-Barnard said that the administrative burden on SAPS had been raised.

The Chairperson said that administrative justice required that there be a response to a request. SAPS had managed to improve their administrative procedures.

Maj-Gen Adeline Shezi, Head of Quality Management at SAPS Forensic Department, said that a short message service (SMS) advice would be generated when the profile was expunged.

Mr A Soman, Director: Legislation, Civilian Secretariat for Police (CSP) said that notification was important. If there was no removal in response to a request, the applicant could lodge a complaint.

15J Convicted Offender index
Maj-Gen Jacobs read the proposed section 15J. This provided for the convicted offender index.

The Chairperson noted agreement on this clause.

Adv Swartz said that there was no provision for the expungement of the profile of a child. The profiles in this index would be retained indefinitely.

The Chairperson said that this must be a technical fault, as this was what the Committee had requested.

15K Investigative index
Maj-Gen Jacobs read the proposed section 15K. This would make provision for the investigative index.

Mr George was worried about 15K(2)(b).

The Chairperson reminded Mr George that this was what was previously known as the Volunteer Index.

Mr George said that if there was reasonable evidence against a person, he was in fact obliged to provide a sample.

The Chairperson said that a volunteer might not understand what this was all about. In that case a warrant could be obtained. This did not apply to a suspect, although this person could subsequently be identified as a suspect.

Mr Ndlovu fell off his chair attempting to assist Mr George with his microphone. He was not injured.

Mr George felt that a request for a sample implied a degree of suspicion against the person.

Ms A Molebatsi (ANC) asked how long it would take for the notification of the removal of a sample to be made.

The Chairperson said that Ms Molebatsi was referring to 15K(2)(f).

Maj-Gen Shezi said that a three-month period could be specified. Notification would be automated. The legal team would look at this clause. This sub-clause could be retained.

The Chairperson said that the volunteer supplying the sample should be informed that the sample would be removed after a certain time.

Adv Swartz proposed that the notification period be included in 15K(3).

The Chairperson felt that no one was listening. Her proposal was that 15K(2)(e) and (f) be combined.

15L Elimination index
Maj-Gen Jacobs read the proposed section 15L. This dealt with the elimination index.

The Chairperson pointed out that the word 'in' had not been inserted in (1)(c). She noted that Members were satisfied with this sub-clause. The provision for a person to ask for a removal had been included.

15M Missing persons and unidentified human remains index
Maj-Gen Jacobs read the proposed section 15M, which created the missing persons and unidentified human remains index. The clause had been augmented by a qualification that the investigation of a familial search should be conducted by a senior SAPS member.

The Chairperson said that there was some duplication. The Board must be advised of the outcome. She asked if the bodily sample definition covered what was used in finding DNA of human remains. It seemed that it did not.

Maj-Gen Shezi said that 'bodily sample' referred more to fluids than to tissue such as teeth and bones. The definition might have to be reconsidered.

The Chairperson said that there was no time to reconsider.

Maj-Gen Jacobs said that a crime scene sample should be added to this sub-clause.

The Chairperson said that an aircraft or other accident, or a natural disaster, would be treated as a crime scene initially.

15N Comparative forensic DNA search and communication of information
Maj-Gen Jacobs read the proposed section 15N. This specified the procedure for comparative forensic DNA search and communication of information.

The Chairperson noted the agreement of Members.

15O Foreign and international law enforcement agencies
Maj-Gen Jacobs read the proposed section 15O, which covered foreign and international law enforcement agencies.

Ms Kohler-Barnard felt that if a foreign criminal were clever, he or she would offer DNA samples which would fall under the investigative index. This index could not be used to identify the person in terms of this clause.

Maj-Gen Jacobs said that an offender's profile would probably appear on some other index.

The Chairperson said that the crime scene index could be run. She asked what was being done in the transitional arrangements to cover relations with Interpol.

Maj-Gen Jacobs felt that the situation had been rectified.

Maj-Gen Shezi said that SAPS would respond in writing to this question. The migration would be of the crime scene index, which was in the Interpol database.

The Chairperson said that the written answer was needed for record purposes. However, the Committee needed an immediate answer to process the Bill.

Maj-Gen Shezi recalled that the Committee had enquired if there were profiles on the Interpol database.

The Chairperson said that SAPS had told the Committee that South African profiles were available on the Interpol database. This should not be happening. She asked what measures were being taken to safeguard access to the database.

Maj-Gen Shezi said that the crime scene index was available to Interpol, and contained about 10 000 profiles.

The Chairperson said that once the Bill was enacted, these profiles should be removed from Interpol.

Maj-Gen Jacobs agreed that there should be a transitional provision. There could be a provision to limit the available samples to crime scene samples.

The Chairperson said that there were still 10 000 profiles somewhere in cyberspace. She wanted to see the requests for these profiles.

Maj-Gen Shezi said that 66 countries participated on the Interpol Gateway. There were rules for each country regarding access. This access was only granted subject to bilateral agreements. SAPS had received 54 requests for access to the data since the database was compiled.

Mr George concluded that these profiles could only be access if there was a specific request. He asked if these could be deleted.

Maj-Gen Shezi said that all of these profiles could be expunged. When the Act came into force, the profiles could be removed by SAPS as they fell within their custodianship.

The Chairperson asked what value there was in keeping these profiles.

Maj-Gen Shezi said that comparative searches could be run for missing persons. There were benefits to maintaining these profiles.

The Chairperson was not asking for the samples to be expunged. The issue was whether the country knew what was happening to this database. She had been shocked to hear that South Africa was maintaining DNA profiles. Given the contents of this legislation, she asked if SAPS was satisfied that there was no need for transitional arrangements to cover the total index being available on Interpol.

Maj-Gen Shezi said that there were no references that needed to be migrated. She was comfortable with the situation.

Mr George asked what would happen if the Board opted out of this arrangement.

Maj-Gen Shezi felt that the Board would not have the power to opt out of agreements. A submission could be obtained from Interpol and what type of indices should be maintained.

Mr George asked if human rights were being undermined in any way.

Maj-Gen Shezi said that no person owned crime scene examples, so the issue of human rights did not arise in this case.

Ms Kohler-Barnard noted the use of 'may' throughout in reference to the authorising officer. The nation had agreed to provide this information to international law enforcement agencies, and some discretion was now being allowed to the authorised officer.

Maj-Gen Jacobs agreed that some discretion was indicated. He did not think that all crime scene examples had to be placed on the database, only those for certain investigations. It was clear that there was no need to place all of these samples on the database.

The Chairperson said that there was still a request procedure to be followed in terms of international law. The same applied to extradition agreements. In sub-clause (1) there was a request and a response. There did not seem to be any reference to missing persons searches. Section 15O(4) was problematic as the Board was not yet constituted, which emphasised the need for transitional arrangements.

Maj-Gen Jacobs said that the transitional arrangements could remove the crime scene index.

The Chairperson asked the legal team to consider whether transitional arrangements were needed. The question of missing persons also needed to be addressed.

Maj-Gen Jacobs proposed that the wording of the proposed section 15M be modified to allow for searches against both the missing persons and unidentified persons and the crime scene indices.

The Chairperson said that there must still be a provision to search against the crime scene index as at an accident damage to bodies might preclude the taking of normal bodily samples.

15P Compliance with quality management system
Maj-Gen Jacobs read the proposed section 15P, dealing with compliance with a quality management system. It was not wise to quote the specific standard of the International Organisation for Standardisation (ISO) as this might change.

Mr George said that this was not something over which the SAPS could exercise choice. Compliance was the most critical part of this section.

Ms Kohler-Barnard said that there had been complaints about the laboratories not being accredited. She wanted an assurance that the laboratories would operate according to international best practice.

Maj-Gen Shezi agreed with the proposed change to the layout as proposed by Mr George. She agreed that standards must be observed, and that the Board would play an oversight role.

15Q Analysis, retention, storage, destruction and disposal of samples
Maj-Gen Jacobs read the proposed section 15Q, which dealt with analysis, retention, storage, destruction and disposal of samples. This had been modified at the request of the Committee.

The Chairperson said that samples should be analysed or loaded within the given period.

Ms Kohler-Barnard felt that this was too open-ended, and spurious 'compelling reasons' could be found to delay the process.

The Chairperson said that this was addressed later. She asked if crime scene examples were also covered.

Maj-Gen Jacobs replied that they were addressed elsewhere.

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

Mr George said that Members still wanted to know what the state of readiness was.

The Chairperson said that the Committee had been briefed on this twice, and there was a written question to be submitted by 12 August 2013.

Mr George was perturbed. If Members were expected to proceed with the Bill without knowing if resources were available it would be a problem.

The Chairperson said that the costing would be crucial. SAPS was already working with DNA, and this Bill would be an extension to the current practice. The vote on the Bill could be postponed by a week pending the answers on the budget.

15S Offences and penalties
Maj-Gen Jacobs read the proposed section 15S. This dealt with offence and penalties.

The Chairperson asked if section 15W had changed.

15T Awareness and training programs
Maj-Gen Jacobs read the proposed section 15T, which made provision for awareness and training programs.

Mr Soman asked if 15T(1) should not be swapped with (3).

15U Access to and security of NFDD
Maj-Gen Jacobs read the proposed section 15U, access to and security of the National Forensics DNA Database (NFDD). This had been under section 15W in the previous version of the Bill. In sub-section (4), 'section' had been changed to 'chapter'.

The Chairperson noted the provision for the National Commissioner to report any breaches of security measures. She proposed that this should include a report on the actions taken.

Maj-Gen Jacobs said that the relevant offences would be included in this sub-section. This would define the offence of deliberate loss of or damage to samples.

15V Establishment and composition of National Forensic Oversight and Ethics Board
Maj-Gen Jacobs read the renumbered proposed section 15V (formerly 15X) that would provide for the establishment and composition of the National Forensic Oversight and Ethics Board. In 15V(7) the period for filling a vacancy had been reduced to six months. Section 15V(9) had been expanded to prescribe a minimum number of meetings.

Ms Kohler-Barnard still believed that the Committee was failing in its duty by allowing the Minister to conduct the interviews and make the appointments. She asked if the administration should be done by a secretary or a secretariat.

The Chairperson replied that this was a part-time Board, and they would need administrative support in making their decision.

Mr George said that the Committee had agreed on having the Board meet once a quarter. He asked why this had been change.

Mr Ndlovu asked why the budget had been moved from the Minister to the Secretariat of Police.

Mr Soman replied that the budget should be allocated to the Secretariat.

The Chairperson said that this is what the Committee had proposed initially.

Maj-Gen Jacobs replied that it would be a secretariat rather than a single person. The initial meetings were addressed in the transitional arrangements. There was provision for the removal of a member of the Board in the following section.

The Chairperson said that the Committee needed to be informed on the appointment of the Board. The meetings must be held at least once quarterly. The report on the appointments must include the names of the Board members and a synopsis of their qualifications.

Maj-Gen Jacobs said that a new sub-section (13) had been added which laid out the requirements for members of the Board, and the circumstances under which the Minister could remove a member from the Board.

The Chairperson said that another sub-section must be added requiring the Minister to inform the Committee.

Ms Kohler-Barnard was unhappy with the provision that a member must not have been sentenced to a jail term of more than one year. She felt that no person convicted of any offence should be eligible. She quoted a case of an SAPS member who had been given a hefty fine for a case of violent assault.

Maj-Gen Jacobs said that the wording could refer to any offence without the option of a fine.

The Chairperson suggested that anyone with a criminal record should be ineligible.

Ms Kohler-Barnard asked what was the definition of a criminal record.

Maj-Gen Jacobs said that anyone whose fingerprints had been taken was subject to a criminal record.

Mr Hercules said that any person convicted in a court of any offence, including traffic offences, would have a criminal record.

Maj-Gen Jacobs said that offences involving death might be regarded as an offence but not speeding.

Maj-Gen Shezi said that a form 69 was sent for all convictions.

Mr Hercules said that the intention had been to show leniency towards some offences. There should be a guideline for the Minister.

The Chairperson was also uncomfortable. This was an ethics board, and even some convictions for crimes under Schedule 1 were punished by less than a year's imprisonment. The legal team must check that a criminal conviction would exclude minor traffic offences, even if they had appeared in court. The Committee agreed on the principle of no criminal record.

Brigadier-General (Brig-Gen) Portia Lesese, Section Head Legislation SAPS, said that this was the qualification applied to Members of the National Assembly (NA).

The Chairperson knew this as the next sub-section was a clear copy of the regulations regarding the Members of Parliament. There also needed to be a provision that a member of the Board be removed on conviction of any offence. She asked if there was any provision for suspension.

Maj-Gen Jacobs said that this provision would have to be added.

The Chairperson said that non-attendance of meetings should also result in the removal of a member. This was one of the biggest challenges in government. This could also be addressed in the regulations.

15W Functions of the Board
Maj-Gen Jacobs read the proposed section 15W on the functions of the Board, formerly under section 15Y.

The Chairperson asked if there should not be a 'catch-all' clause in (1)(d).

Ms Kohler-Barnard asked what would happen it a member of the unit was accused of some offence. She asked what channels of appeal would be available. It seemed that the Board would pronounce on disciplinary issues.

The Chairperson said that SAPS would conduct any criminal investigation.

Maj-Gen Jacobs said that there was an appeal process prescribed in the disciplinary process.

The Chairperson said that the Board could gather information on a suspected offence, and then forward this on to the relevant authority. The Board would handle complaints, and had the right to gather information and take action. This must apply to all breaches, not just security breaches.

Maj-Gen Jacobs said that (ii) should be duplicated at the request of the Committee. A similar clause had been inserted in (2). A new sub-clause had been added. The new sub-clause would refer to the Board establishing committees.

The Chairperson said that proposals on reporting had not been incorporated into the latest draft.

Mr Ndlovu said that the National Commissioner must report to the Board within three months.

Brig-Gen Lesese said that the reporting requirement was contained in the proposed 15Q(7). He admitted an error in the cross-referencing regarding disciplinary action.

The Chairperson was uncomfortable where this provision had been placed. She wanted to see easily understandable legislation. Members had asked the legal team to include the reference in this clause. It was frustrating that the legal team had not acted as requested.

15X Procedure for handling of complaints
Maj-Gen Jacobs read the proposed section 15X, formerly 15Z, on the procedure for handling of complaints. A new sub-clause (6) had been added requiring the outcome of any complaints to be reported to the Board.

The Chairperson asked why SAPS and the Independent Police Investigative Directorate (IPID) could not be compelled to report back to the Board on the steps they had been taken. Security and quality management must be including in the oversight function.

15Y Disciplinary recommendations
Maj-Gen Jacobs read the proposed section 15Y, formerly 15AA. This would provide for disciplinary recommendations. Proceedings would not be invalidated if not completed within the prescribed period.

The Chairperson assumed that the cross-references were correct.

Maj-Gen Jacobs spotted another error in the cross-references.

15Z Parliamentary oversight
Maj-Gen Jacobs read the proposed section 15Z, formerly 15V, on Parliamentary oversight.

Ms Kohler-Barnard said that the reference to the relevant Portfolio Committee was misleading.

The Chairperson said that the reporting should be to the NA.

Adv Swartz said that it would be more specific to refer to the Committee.

The Chairperson said that all reports were sent to Parliament and then distributed to the relevant Portfolio Committee. Part of the Annual Report should go to Parliament, as it was considered by both Houses. She instructed Adv Swartz to insert the correct references.

15AA Regulations
Maj-Gen Jacobs read the proposed section 15AA, formerly 15U, on regulations. Section 15AA(1)(f) now also referred to crime scene samples.

The Chairperson said that the Minister must determine designated areas for the taking of buccal samples. The requirements of such an area had to be made clear. Anyone could take his or her own buccal sample. She was uncertain why 'expungement' was being used rather than 'removal' of samples.

Maj-Gen Jacobs said that this needed to be interrogated. There were other processes that could be follows. Expungement would normally be the result of something like a presidential pardon.

Clause 8 Transitional arrangements
Maj-Gen Jacobs read through clause 8, which would provide for transitional arrangements. Two definitions had been included at the request of the Committee. One of these was 'casework index' and 'reference index'. Several changes had been made to this clause. There was a requirement for when the Board must hold its first meeting. A practical issue was the presence on the list of sexual offenders, from whom a buccal sample must be taken.

The Chairperson noted the improvement in this clause. The planned date of the system being fully operational was set at four years, but already another three months had been added for samples to be loaded. There was another case where five years would be allowed. Members had been asking when this system would be fully operational.

Ms Molebatsi pointed out a spelling error in Clause 8(8). The word should be 're-agents'.

The Chairperson asked if SAPS wanted to take DNA samples from remand detainees.

Maj-Gen Jacobs said that the aim of the Act was to populate the database. A sample could now be taken from arrestees before they appeared in court.

Ms Nadia Dolly, Committee Researcher, said that the problem was in (7) which only referred to a person serving a sentence of imprisonment. A remanded person was still awaiting trial, and would thus be excluded from those currently obliged to provide samples.

Maj-Gen Jacobs said that a separate sub-section should be drafted to address remand prisoners.

Ms Kohler-Barnard said that this would just be an interim measure. Once the Act was in force, all arrested persons would have to provide a sample.

Maj-Gen Shezi had not been happy that there was no information required from the Department of Correctional Services (DCS).

The Chairperson reminded the legal team that the buccal sample must be taken by a SAPS official. Some of the sub-clauses had disappeared.

Clause 9 Repeal of laws
Maj-Gen Jacobs said that clause 9 would make provision for the repeal of certain laws. No further discussion was needed on this.

Memorandum on the Objects of the Bill
Maj-Gen Jacobs said that the Memorandum on the objects of the Bill had been provided as a separate document.

The Chairperson rejected the wording of paragraph 5 of the Memorandum. This implied that the Committee had already satisfied itself with the costs involved.

Maj-Gen Jacobs said that the issue of the implications was still hanging, as the budget was still not know. He asked for assistance on how this paragraph should be phrased.

The Chairperson was still waiting for the final cost. The statement made did not reflect the truth, and placed an unfair obligation on the Committee.

Mr Hercules said that with every Bill, there had to be some account for the cost. This had not been explained in the initial deliberations on the Bill. The Memorandum of Objects would not be included until the Bill was finalised. The Committee's concerns were noted. There would be implications for Treasury.

The Chairperson asked what the principle was. She understood that there must be a monetary value attached, both in the immediate and medium term.

Mr Hercules said that there would be a phased-in approach. When the budget was known the Memorandum could be updated.

The Chairperson said that the Bill would not be adopted until they were satisfied with the Memorandum, especially paragraph 5. Members would be failing in their duty if they did. SAPS was being given time to prepare this.

Mr Ndlovu supported the Chairperson. The Memorandum was a summary of the Bill, and the financial implications must be known. SAPS would be causing any further delay if the financial implications were not communicated. Members had to go to their party caucuses, and cost was a major consideration, if not the only one.

Ms Kohler-Barnard had thought that the financial implications would have been communicated by 2 August 2013. When it was presented, Members would not necessarily agree with the answers given. Her caucus also found this unacceptable.

The Chairperson informed Members that the questions to SAPS had only been drafted and forwarded the previous day. It was clear that the Bill would not be ready for voting by the planned date of 6 August. All the Committee would be able to do would be to review the changes ordered. This would be the last detailed interaction with the Bill. Members could even vote on the individual clauses, but the overall vote on the Bill could only happen when the financial issues were finalised.

The Chairperson told Maj-Gen Shezi that there was no longer any excuse for the financial information not to be provided. After almost two months, it was not the Committee's problem if SAPS had only started to consider this issue at a late stage. This Committee would not act irresponsibly by approving the Bill without understanding the financial implications. She could not understand how there was no involvement of the financial department. Members of this Department would be required to attend the meeting on 6 August.

Members indicated their satisfaction with the agreement put forward.

The meeting was adjourned.