Criminal Law (Forensic Procedures) Amendment Bill: preparatory briefing by Content Advisor and Researcher

Meeting report

Ms Patricia Whittle, Committee Researcher said that 2009 was the first time that Parliament dealt with the Criminal Law (Forensic Procedures) Amendment Bill which was still in the Third Parliament. The Third Parliament had an Ad Hoc Committee that dealt with the Bill and it did not have enough time to finalise their work on Bill. They had done some work on the Bill such as held public hearings, visited forensic laboratories, met with the South African Police Service (SAPS) and other stakeholders. When the Committee could not finalise the Bill in time, it recommended that the Fourth Parliament deal with the Bill. Therefore, in 2009 when the Fourth Parliament was established the Bill was re-introduced and referred to the Portfolio Committee on Police. The Bill dealt not only with the DNA but also looked at fingerprinting. The Portfolio Committee decided that there was not enough expertise and information to deal with the issues of DNA. It decided to postpone the DNA part of the Bill and process the part deal with fingerprints and body prints. That Bill was passed in 2010. The Portfolio Committee decided to embark on a study tour. The Portfolio Committee went on a study tour and part of the delegation included members of the Head of Quality Assurance at SAPS’ Forensic lab and the State Law Advisors responsible for drafting the Bill. They went to Canada and the United Kingdom. In the document tabled to the Select Committee, it refers to that part of the study report dealing with the observations coming out of the study tour. An important point that came out of that report was that one had to ensure that the crime scene and the samples were not contaminated throughout the chain of custody from the time that the samples were taken up to the point that they were sent to the forensic lab and analysed.

Ms Whittle said that in terms of the matters that came out of the Portfolio Committee deliberations, was that it was not happy with the costing figures presented by SAPS to implement the Bill but nevertheless it recommended to the National Assembly to pass the Bill. The Committee was aware that the process had started in 2009 already and obviously there was a need for the Bill, and the policy decision had been taken that South Africa needed to establish a DNA database and that was what the Bill did.

Currently South Africa did not have a DNA database. The Department of Justice and the criminal justice system used DNA evidence on a case by case basis. The establishment of the DNA database would create six indexes. One would be the Crime Scene Index where each sample collected from a crime scene which would be analysed and loaded onto the database.

The Bill provided for an Arrestee Index so that every person that had been arrested had his/her DNA taken by an authorised person who had undergone training provided by the Health Ministry. There was also the Convicted Offender Index. SAPS would conclude a Memorandum of Understanding (MOU) with the Department of Correctional Services to allow the DNA of all persons in Correctional Service Centres to be taken and loaded on the Convicted Offender index which included sentenced offenders and unsentenced detainees.

There was the Investigative Index where if an investigating officer was of the opinion that a person or a group of persons could be involved in a crime, that officer on suspicion could approach that person or group of persons to take their DNA and they should give consent. If consent was not given, a warrant should be obtained from a magistrate. It was important that there should be consent for the DNA profile to be loaded onto the investigative index.

There was an Elimination Index for the various people working on a crime scene. The Bill proposed the elimination of those who were working with the samples at the crime scene so as to ensure that they were not loaded as suspects on the Arrested Persons Index. The Elimination Index would ensure that those people would be eliminated from being suspects for that crime.

There was a Missing Persons and Unidentified Human Remains Index where police would be able to conduct searches to identify bodies or help trace missing persons.

Ms Whittle said that an important aspect of the Bill was that it applied retrospectively. The retrospective part was to make it applicable to persons who were already in correctional facilities to enable SAPS to have their DNA taken. The Bill provided for penalties for offences committed in connection with the database, either tampering with the database or samples and, it proposed imprisonment of 15 years or a fine.

The Secretariat of the Police, which was an oversight and monitoring body, was responsible for ensuring public awareness programmes and training programmes for the police so they were aware of what the Bill sets out to do and what their responsibility would be in response to the Bill.

The Bill also established the Oversight and Ethics Board which consisted of not more than 10 people. The members of the board would be appointed by the Minister and some of them would comprise of people who were experts in the forensics field. At the moment they had civilians on the board, and Members of the Select Committee would be able to interrogate why that board was composed in that manner.

Ms Whittle concluded that Members of the Select Committee should consider the costing issue. Also SAPS would need to ensure that no backlog was created since they arrest people every single day and the DNA being taken had to be sent on a daily basis to the forensic labs.

The Department of Police had been requested by the Portfolio Committee on Police to submit a quarterly report on implementation expenditure because as already stated the Committee was not happy with the projected figures SAPS had provided. This was something the Select Committee could engage the Department of Police on.

Mr Irvin Kinnes, the Content Advisor, said that concerns had been raised by the South African Human Rights Commission and some of those concerns were not dealt with by the Portfolio Committee on Police. There was the right to privacy because arrested persons had a possibility to be found not guilty in court. How long did the state have the right to keep one’s DNA. There was also the question of the severity of a crime and the scheduled offences made no distinction thereof. These offences did not all justify the particular limitation on the right to privacy. The Bill did not talk about the prerequisites on how police officers would be trained by the Department of Health or what they were going to be trained in. When it came to the authorised persons clause they were suggesting that only senior police officials should take the DNA bodily samples rather than every police officer. And what happens with those samples and how long were they able to keep them?

Mr Kinnes said that he would make available the submission to all Members of the Select Committee, and it would be useful to invite the Human Rights Commission to address the Committee.

Discussion
Mr A Matila (Gauteng, ANC) interjected that the issue of budget that had to be applied for retrospective collection of samples meant that it would apply to all persons currently detained. At what cost would they have to go through that process? What costs were involved considering that arrests were made on a daily basis? He hoped that SAPS would give them answers.

Mr B Nesi (Eastern Cape, ANC) asked if proper training would be done for people that were going to be dealing with DNA and fingerprints. He proposed that the Committee needed to talk to the department or SAPS because when they were in Germany, the requirement for a police officer was a degree hence the salaries were high. South Africa was getting sophisticated as a country and if they were sophisticated they needed to look at the entry point in terms of what were the qualifications they needed. It meant that they needed expertise so that the Bill would be successful. How much they were going to pay the police dealing with the samples. It was important that as a Committee they should be forwarded information on that. The Committee should address training. The way they were doing things in South Africa was correct but they were behaving like a first world country and their research was based on first world countries but if they looked at first world standards, these were far from South African standards. Hence the budget was important in terms of payment for police, specialisation, training and the education in the police colleges.

Ms Whittle thanked Members for the questions. She emphasised that those were the questions that Members should be raising with SAPS. The Portfolio Committee on Police had recently been briefed by SAPS about its plans to establish a university to train its members. As a Committee they had to request that the SAPS briefing on the Bill also include DNA training and what kind of courses the university would be providing, especially on DNA.

Ms Whittle said that when she was part of the Ad Hoc Committee that had visited forensic laboratories and had asked about forensic science skills. SAPS had increased the number of training courses to try and bridge the skills gap in terms of training those who were first at the crime scene. They had a level of success in addressing some backlogs but they had requested that there should be some representative from the forensic lab to be part of the SAPS delegation that would brief the Committee, and hopefully that person would be able to answer questions about how many posts had been created to prepare for this Bill. SAPS had known since 2009 that this legislation would be introduced.

SAPS had to give an indication of what it had done when looking at the memorandum with the breakdown of costs. From the debate in the National Assembly, SAPS had indicated it would take 551 days to get the DNA database up and running which was just over a year and a half. The fact was that in the criminal justice cluster millions or billions had been spent on the ICT sector including SAPS itself. The Committee had been dealing with SAPS budget for ICT every year. That was one of the criticisms raised by the Portfolio Committee that from 2009 until now there was no integration that could be seen. It was raised as a concern for the implementation of this Bill because the departments were not integrated in their systems, and that was one of the reasons that the Bill had to apply retrospectively. It was also one of the reasons SAPS was requested to submit on a quarterly basis their expenditure projections. This was because the Portfolio Committee was not happy with the projections or the picture that SAPS presented and it would monitor the process. Despite these concerns, the Portfolio Committee did not want to delay the legislation and it decided to pass the Bill, provided SAPS came to Parliament on a quarterly basis to report on its implementation of the Bill and what their projections were and how much the actual costs were going forward.

Mr Matila said what they expected in terms of the Bill and the entire process was how many people had been trained, how many people were needed, what process they should follow. The researcher should have given the Committee a picture of those specific issues. They had been dealing with the issue of forensics for some time because there was a backlog and were told there were problems. The researcher was correct in raising the issue of ICT because the Committee had been told that close to a billion rand had been spent on ICT which was not working. That was a problem. They needed to link all those issues and understand whether SAPS was ready to train people because they were talking of opening a university, how much would it cost to train one person. They needed to have an idea so that they could deal with the department because it would not help them if they just pass the Bill for the sake of passing a Bill and then they sit with lots of problems at the end of the day. Therefore, the research team should help the Committee to deal with those issues that they had raised so that they would be able to keep SAPS on its toes and be able to deal with some of the issues in terms of their oversight role.

Mr M Mokgobi (Limpopo, ANC) said that that such an approach would take long because he would not like a situation where the content advisor answers on behalf of SAPS - because they were still coming to brief the Committee. He suggested that the technical issues that Mr Matila raised should be noted, and the researcher and the content advisor assist them with such technical questions.

Mr Mokgobi wondered what the 'training' would mean, was it a crash course or a two week workshop? The researcher should look into this for the Committee to question the department about. They were important issues that Members should engage the department on. They should also understand what it was that they had to achieve as part of the NCOP's objectives so that they were not just endorsing what had already been agreed upon.

Mr V Manzini (Mpumalanga, DA) asked how water tight DNA was because when they had to start with it they had to know the successes and the weaknesses since it involved money. People could sue the state.

Mr Nesi agreed with Mr Mokgobi that they were not asking the researcher and content advisor questions but rather sharpening their tools and they could only assist them in that process. The point of the Human Rights Commission raised by the content advisor had to be balanced with all the rights in the Constitution. When the department came and said it was going to do as it wished in terms of taking DNA of every person arrested by the policee, the Committee had to raise issue of privacy with the department. He agreed that the content advisor and researcher should prepare some questions. Fortunately some of the issues had been already cleared for Members in this meeting so that they could engage the department properly and understand what it was talking about. The Committee needed to emphasise training. They should not be told about a university which was not part of the budget of the country, and had never been raised by the President. They should propose that the existing training colleges be used and the department could staff it with expert people who could train the police, instead of promising something that would not happen in the near future.

Mr Kinnes proposed that he could write up a list of proposed questions and the theme was very clear. Members would get it by the following morning. The budget and training were core issues. The application of human rights in the Bill was key which the Human Rights Commission was raising. For example, how long would they keep the DNA of a child? In the Bill there was also a provision that the station commander should within 30 days of taking DNA evidence submit it for forensic analysis. The Bill was silent about the consequences of the station commander not submitting the DNA for forensic analysis. The Committee had to talk about those particular consequences, because if they looked at evidence rooms, they were piled up with evidence but nothing happened to it. Another point was the potential planting of fingerprints and DNA evidence by a police officer.

Ms Whittle said that Mr Manzini's question fitted in with what Mr Kinnes had stated and what had come out of the study tour. DNA was an investigative tool and could not be used on its own. It should supported by collaborated evidence, which meant that the police investigation should be done thoroughly. It was important to ensure that the crime scene was not contaminated. Once the crime scene was contaminated as demonstrated by the question from Mr Manzini it meant that if the matter came to court the defence would be able to question the validity of the state’s case. DNA, like fingerprints, could be used to prove the state's case but it could also be used by the defence to prove the innocence of the accused. It could work both ways if procedures were followed correctly.

Ms Whittle said she had noted Mr Matila’s question about the funding costs. SAPS would meet with the Committee for the first time the following day and she had not wanted to give the Select Committee the costing figures given to the Portfolio Committee on Police. Members had not yet had the chance to interact with the Bill and she did not want to overburden Members with information. Members should note that the document that she had prepared should be studied together with the study tour report because it contained lots of issues especially human rights, whose profiles should be kept, how long it should be kept. Therefore, Members needed to consider the different indexes when dealing with the Bill. There was the Arrested Persons Index which meant that every person that was arrested would have DNA taken and obviously there were practical implications. But also there were human rights and ethical questions and Members could engage on those issues. Whether the Committee proposed to amend or not amend those provisions of the Bill, it should be informed by the considerations around those issues.

Mr L Nzimande (KwaZulu-Natal, ANC) said that the guidelines were quite complex to engage them meaningfully and in terms of the programme going forward they had got to look at how they were going to process the Bill. He suggested that they should follow the same approach with the previous Bill where they first received a presentation and assessed whether there was a need for further engagement. The problem with the current Bill was it was section 75 and the National Assembly decided whether to accept or not accept the NCOP's proposed amendments. In essence they were limited in terms of scope on the matter. It was important for the Committee to be clear in terms of engaging the department the following day on the briefing. They could say if the NA rejected such, they needed two-thirds majority, and that remains the position in terms of section 75. He proposed that they further engage on the process after the briefing.

The Chairperson said that as a Committee they agreed with the proposal from Mr Nzimande.

The meeting was adjourned.