DNA Board: Progress report

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02 March 2016
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Committee met to be briefed on the first Annual Report of the National Forensic Oversight and Ethics Board (NFOEB). Information was provided on the background of the Board in terms of its establishment, composition and functions. The preparatory briefing also outlined the meetings of the Board, the procedure for the handling of complaints and Parliamentary oversight in terms of the relevant provisions of the Criminal Law (Forensic Procedures) Act (DNA Act).

The Board briefed the Committee on its Annual Report, focussing on the structure and membership of the Board, which had been effected by the Minister of Police on 27 January 2015, its vision and mission, the strategic objectives of 2015, and key processes along the value chain to deliver the Board’s vision and mission. The presentation also covered meetings held by the Board in 2015/16, sub-committees of the Board and an overview of the Board’s 2015 strategic achievements. The comprehensive presentation also made reference to the identified operational requirements and challenges encountered, challenges with the implementation of key provisions in the DNA Act, the 2016/17 interim budget of the Board (pending approval by the Civilian Secretariat for Police (CSP)), and its objectives for 2016/17. 

Members were displeased by the non-attendance of high ranking officials of the CSP or National Treasury, particularly as many of the issues raised pertained directly to the Secretariat. Added to this was the fact that in the 2016/17 Estimates of National Expenditure (ENE), there had been no budget line item for the Board under the CSP. Sticking to matters of budget, the Committee was concerned that the 2016/17 budget was pending approval of the CSP, as this was said to affect the independence of the oversight body. Other questions were asked about what the lack of funds was attributed to, whether the Board had negotiated with Treasury or was looking at acquiring other sources of funding.

Despite these glaring challenges, Members commended the Board for hitting the ground running. Other questions were asked about the low DNA sample collection rate and what had caused this, why some members of the police did not want their DNA samples taken, the structuring of the sub-committees, what kinds of complaints were dealt with by the Board, the lack of office space and facilities, and how the Board operated without a high-level secretariat.

Another area of concern for the Committee was the non-implementation of the Combined DNA Index System (CODIS), the FBI's programme of support for criminal justice DNA databases, and what the Board was doing to ensure the system was implemented. Questions were also posed about the security of CODIS because of software and server issues, and how the system would impact on the Criminal Justice/Integrated Justice Systems in terms of compatibility, to prevent parallel processes running. The Committee concluded by noting the work of the DNA Board was very important and a number of issues needed further engagement, chief among which was the budget. The Committee would continue to monitor the environment.

Ahead of the Committee’s meeting next week, the Committee content adviser briefed Members on issues related to the budget of the Directorate for Priority Crime Investigation (DPCI). The concern was that the DPCI still did not have a separate budget in the form of an additional sixth programme under the SA Police Service (SAPS) in order to be in line with Constitutional Court judgements, and the subsequently aligned SAPS Amendment Act in relation to the judgements. The Committee needed to meet with high level SAPS management and National Treasury on this critical matter affecting the independence of the Directorate.   

Meeting report

National Forensic Oversight and Ethics Board: briefing

Mr Irvin Kinnes, Committee Content Adviser, said that the Criminal Law (Forensic Procedures) Act (37 -2013) had come into effect on 31 January 2015, and in terms of section 15V of the Act, the Minister of Police had had to appoint a National Forensic Oversight and Ethics Board. The Minister had done so on 27 February 2015. The Board performed a number of functions chiefly contained in section 15Z of the Act. These included:

  • Monitoring the implementation of the Act;
  • Making proposals to the Minister on the improvement of practices regarding the overall operations of the National Forensic DNA Database (NFDD); ethical, legal and social implications of the use of forensic DNA; and training and development of criteria for the use of familial searches.
  • Providing oversight over the process relating to the collection, retention, storage, destruction and disposal of DNA samples; retention and removal of forensic DNA profiles as provided for in the Act; familial searches; any breach in respect of the taking, transporting, analysis, storing, use and communication of DNA samples and forensic DNA profiles, including security breaches; and security and quality management systems.
  • Handling complaints by receiving and assessing complaints about alleged violations relating to the abuse of DNA samples and forensic DNA samples and forensic DNA profiles; security breaches.
  • Considering all reports to submitted to it in terms of this Act.
  • Considering any other matter related to this Act.

Section 15V of the Act outlined the establishment and composition of the Board, in that the Board must consist of not more than ten persons appointed by the Minister on a part-time basis for a period not exceeding five years, of whom:

  1. Five persons must be from outside the public sector, with knowledge and experience in forensic science, human rights law or ethics relating to forensic science;
  2. Four persons must be from the public sector on the level of at least Chief Director, namely:
  1. The Secretary of Police or his or her representative;
  2. A representative of the Department of Health who had knowledge in the field of DNA;
  3. A representative from the Department of Justice who had sound knowledge of constitutional law;
  4. A representative of the Department of Correctional Services.

The members of the Board must be appointed by the Minister, after inviting nominations from the public.

The Minister must appoint the chairperson of the Board, who must be a retired judge or a senior advocate with knowledge and experience in the field of human rights, and the deputy chairperson from the remaining members of the Board.

Mr Kinnes highlighted that in terms of meetings of the Board, the first meeting must be convened by the Minister and thereafter meetings of the Board must be held at least quarterly. The Board may determine its own governance rules and procedures.

In terms of the procedure for handling complaints, the Board may, either as a result of a complaint lodged with it or of its own accord, consider a complaint. The Board must refer a complaint contemplated in subsection (1) to a committee of the Board for assessment in the prescribed manner. The committee must, after its assessment of the complaint, report to the Board on the outcome of such assessment, including recommendations relating thereto. In the case where a criminal act is alleged to have been committed by a person subject to an assessment, the Board must refer the matter to the relevant authorities for further action. The Board must ensure that recommendations regarding disciplinary matters are referred to the National Commissioner; the Executive Director and any other relevant authority.

With regard to parliamentary oversight, the Minister must, not later than five years after the commencement of the Act, submit a report to the National Assembly on whether any legislative amendments are required to improve the functioning of the NFDD and the use of forensic DNA evidence in the combating of crime. After the initial period of five years referred to, the Minister must every three years submit a report referred to the National Assembly.

The Chairperson said he was concerned that senior officials of the Civilian Secretariat for Police (CSP) were not present.

Ms M Molebatsi (ANC) wanted to know why other members of the DNA Board were not present.  

The Chairperson responded that while he could not answer for the Board, during the presentation Members would hear of cash flow and financial challenges.   

Annual Report of National Forensic Oversight and Ethics Board (NFOEB)
Ms Vanessa Lynch, Deputy Chairperson of the DNA Board, began the presentation by saying that the Board had been appointed by the Minister with effect from 27 January 2015. The vision and mission of the Board was to:

  • Ensure that the integrity of the National Forensic DNA Database (‘NFDD) was maintained by providing guidance and oversight relating to the taking, retention and use of DNA samples and forensic DNA profiles for criminal intelligence purposes in the fight against crime.
  • Execute an oversight role in respect of the overall operation of the NFDD in an effective and efficient manner.
  • Promote and protect the rights of the public arising from the use of the NFDD for criminal investigation purposes.
  • Safeguard and secure the integrity of the NFDD against improper use by any person or persons;

The strategic objectives of the Board for 2015 included:

  • To create a support infrastructure for the Board and appoint a DNA secretariat to assist the Board to develop and implement the required policies and procedures for effective oversight and function.
  • To create Board sub-committees to work with the DNA Secretariat to complete oversight reports as per sub-committee charters.
  • To oversee the development of standard operating procedures in conjunction with the National Police Commissioner.
  • To finalise the policy and identify software to support familial searching.
  • To oversee the implementation of the DNA database software to support comparative searches on the NFDD and manage the retention and deletion of forensic DNA profiles therefrom.
  • To develop an outline of the Board’s reporting requirements.

Members were then taken through key processes along the value chain to deliver the Board’s vision and mission. These processes included:

  1. Overseeing the training of SA Police Service (SAPS) personnel and the development of appropriate training for stakeholders.
  2. Overseeing sample collection and the performance of the Forensic Service Laboratory (FSL) and NFDD to minimum quality standards.
  3. Overseeing compliance with ethical and privacy issues.
  4. Drafting policies, procedures and recommendations to improve legislation.
  5. Drafting reports in terms of the Act and submitting them to Parliament.
  6. Handling complaints.
  7. Communications, public relations and engagement the public.
  8. Budgetary, financial and operations.

Ms Lynch then outlined the Board meetings held in 2015/16, detailing the date of the meeting, place, attendance and key elements discussed. The Board was required to meet quarterly but had done so more frequently. The Board had delegated certain issues to eight sub-committees formed from members of the Board. These committees would report to the Board and would bring recommendations to it. An agreement had been reached with the FSL to create nodal contact persons to liaise with each leader of the sub-committees to help fulfill their charters. Sub-committees had been created to help execute its duties and functions as envisioned by the DNA Act. Each committee had at least three members where some members served on more than one sub-committee. The eight sub-committees included:

  1. Systems reports and gaps analysis: overseeing sample collection and performance of the FSL and the NFDD to minimum standards.
  2. Public relations: communicating and engaging with the public.
  3. Training: overseeing training of SAPS to take buccal swabs.
  4. Assessment committee (complaints): overseeing compliance with ethical and privacy issues and dealing with complaints.
  5. Finance and risk.
  6. DNA secretariat appointments and infrastructure.
  7. Reports.
  8. Transitional arrangements and general operational aspects.

In terms of an overview of the Board’s strategic achievements during its first year of operation, key deliverables were identified, along with tasks of the Board and timelines for each objective. Sub-committees had been created with charters to ensure execution of the duties and functions of the Board as envisioned by the provisions of the DNA Act. Resources needed for operations of the Board had been identified and these had been provided to the CSP for further handling. Other achievements including finalising the regulations to be read in conjunction with the DNA Act, initiation of site meetings with the FSL to understand processes, objectives and facilities of the FSL as required by the DNA Act, as well as the development of the first draft of the Familial Searching Guidelines to underline policy, and to govern this practice in accordance with the provisions of the DNA Act.

Operational requirements identified by the Board included office space, telephone and furniture, and an NFOEB logo, letterhead, website, email address and private bag.

Ms Lynch outlined the challenges experienced by the Board. There was no independent office space and facilities, with separate identity for the Board. There was no full time high level DNA secretariat appointed to facilitate the Board’s decision-making process, leading to Members of the Board having to act in a full-time capacity. The CSP allocated the Board’s 2015 budget to other urgent matters – the Board had no funding to facilitate its operation for the 2015/2016 financial year.  The budget for 2016/2017 was not sufficient to fulfill the strategic objectives of Board, and members had not yet been remunerated for out of pocket expenses nor time and services provided to the Board during 2015.

In terms of specific challenges related to the implementation of key provisions of the DNA Act, SAPS had collected 126 reference samples from the sentenced offender population of 162 423, of which 117 040 had been sentenced and 45 383 were remand detainees as at 23 February 2016. Sentenced offenders were currently being released from prison without samples having been taken, although the DNA Act required completion of sample taking from any person serving a sentence of imprisonment within two years, with effect from the effective date of the Act. Challenges were being experienced by SAPS at prisons where sentenced offenders were demanding a briefing as to why samples were being taken and what would be done with the samples thereafter. This issue was currently being addressed by the regional Commissioners of the Department of Correctional Services (DCS).

Another challenge was the DNA database software solution ‘CODIS’ developed by the FBI. The system had been identified by the FSL and recommended for installation by the previous Portfolio Committee for Police, but had not yet been implemented by the FSL. The FBI was awaiting instructions for implementation following a successful site visit from the FSL to the FBI headquarters in mid-2014. The South African State Security Agency (SSA) had not yet confirmed an implementation date, with no current reason for the delay. There was also no date as to when the security assessment would be completed. Accurate reports could not be generated by the FSL, nor could the NFDD retention framework, as envisioned by the DNA Act, be upheld without the appropriate software solution to monitor the date of entry and type of forensic DNA profile entered onto the NFDD. The familial search policy could not also be completed without CODIS first being installed.

Another challenge was with the FSL tender for DNA STR (short tandem repeat) chemistries to be employed by the FSL for forensic DNA analysis. This had been awarded by the procurement board to a company whose STR kit had not been validated by the FSL. The result of the award of the tender for the invalidated STR chemistry had created backlogs as well as delays in implementation of the crime lane at the FSL, as these kits could not be used until validated. There was non-compliance by FSL with the 30-day turn around on DNA analysis as required by the DNA Act, due to this issue.

Ms Lynch then looked at the interim budget for 2016/17 for the Board, which was pending CSP approval. The total budget proposed was R3 150 000, of which compensation of employees accounted for R2 399 000, while goods and services accounted for R690 000.

The 2016/2017 budget represented an increase of approximately 50% on the 2015/16 budget which had been allocated to the Board, although not actually received. The 2016/2017 compensation amount might still be reduced, depending on the outcome of the job evaluations, but the goods and services budget should stay as it was.

The 2016/17 objectives of the Board included:

  • Appointment of a DNA secretariat approved and infrastructure established.
  • Sub-committees to work with the DNA secretariat and FSL nodal points to complete oversight reports as per charters.
  • Sentenced offender sampling programme to be prioritised.
  • Finalise policy and identify software to support familial searching.
  • Implement DNA database software to support comparative searches on NFDD.
  • Develop an outline of the Board’s reporting requirements.
  • Oversee the development of Standard Operating Procedures

The Chairperson reiterated the need for the CSP secretary or high level officials from the entity -- or even a representative from National Treasury -- to have been present. Two weeks ago, the Committee had received a briefing by the secretariat on their quarterly performance and nothing from today’s matters had been raised. The Acting Chief Financial Officer (CFO) and Acting Secretary had to present themselves to the Committee next Tuesday to explain these issues. Furthermore, he had glanced through the latest copy of the Estimates of National Expenditure, and had not seen any budget item line relating to the DNA Board. This was of major concern to the Committee and highlighted the importance of the CSP explaining these issues to the Committee.

Ms Molebatsi asked what the Board attributed the lack of funds to – was it bad planning? She found the non-implementation of CODIS very concerning, even though the Committee had voiced its support for this for a long time ago. Although she had heard there were delays involving the State Security Agency (SSA), she wanted to know what the Board was doing from its side to ensure the system was implemented. Was it correct in financial terms to have the Board’s allocation from the CSP used for anti-xenophobia operations?  

Mr P Mhlongo (EFF) was concerned by the fact that the proposed 2016 budget was pending approval by the CSP, as this meant the challenges experienced by the CSP, which the Committee had heard of last week, would get transferred to the Board. This also spoke to the independence of the Board in playing its oversight role. Something would have to be done. Perhaps the regulations would have to be looked at again, because as they stood, these matters would make the Board completely dysfunctional. Perhaps a legal view should be sought on prisoners refusing taking of their samples because as a prisoner, some rights had been waived. Some of these prisoners had committed horrendous crimes and he felt they should not have the choice to not have their samples taken. He was also worried about the non-implementation of CODIS.  

Ms Lynch said it was stated in the Act that the Secretariat would fund the Board. At the very first meeting of the Board, the CSP had presented the budget and the Board chairperson had stated that it was not enough for the Board to fulfil its functions. The response was that, due to the financial constraints faced by the CSP itself, this was all the money which would be made available. The Board had accepted that this was the funding to be made available. Numerous meetings had been held with the Secretariat, with the CSP CFO saying that the money would come, so it was not bad planning from the side of the Board. It was then later revealed, under a huge amount of pressure, that the money allocated to the Board had been used for the xenophobic attacks – in other words, the money was gone. This explained the resistance from the CSP to enabling the Board to be operational. The Board accepted that there was nothing it could continue to do for that year, but had continued to meet and the CSP had taken funds from its own budget to pay for a couple of meetings. The chairperson of the Board had been incredibly upset to learn that the funds had been used, because there had been no consultation when the money was taken away. The Board operated in the environment of having funds available for use, instead of having the funds it needed – this was the reality. She hoped the budget for the next financial year would be ring fenced so that this would not happen again. The xenophobic attacks were an unexpected crisis which had occurred and for which money was needed. The issue was that the CSP had not consulted the Board before just taking the funds, which had compromised the functionality of the Board.

The Act was also complex in its structure, in that funding came from the CSP but the Board reported to the Minister, while also having oversight functions. The Board thus operated on many different levels. Because the funding came from the CSP, it explained why the budget was pending. In terms of reporting, sometimes the Board reported to the National Commissioner and at other times it worked in conjunction with the Commissioner. This was why the different reporting requirements were unpacked to understand what had to be done, where and who was to be reported to. This process was also not always linear.      

On the issue of CODIS, the mandate of the Board was oversight and to facilitate implementation. It was not in the mandate of the Board to decide what operational requirements must be implemented in the FSL. The Board could recommend, however, if certain matters were not in place. The lab did make use of the basic S.T.A.R. lab system, but it was not complex enough to manage the retention framework put together under the Act for the various indices and how the various profiles in the indices were to be maintained, removed or retained. S.T.A.R Lab was also very laborious, basic and manual. The Board and Forensic Science Services had spoken to SSA, and measures for a deadline by which a response was needed were in place. The SSA had indicated it had not yet finished its report. If SSA decided not to implement CODIS, pressure would be applied as to what alternative system would be implemented.  

Mr Z Mbhele (DA) asked about the destruction of non-crime scene samples within three months. Did this refer to the samples of sentenced offenders, or were there other types of samples? In terms of the low sample collection rate, was this an issue of under-staffing on the part of the SAPS, or was it an issue of the refusal of offenders creating the main blockage? He was concerned about the problems with the validation of the kit tender – was there any possible explanation from the FSL as to how this had come to be? There had been whispers of shady goings-on in the FSL environment and if this was true, it was very concerning. He thought it was good that the Board had been able to hit the ground running and hold meetings despite the financial challenges. He was also very concerned about police officers refusing to have their DNA samples taken, when this was in their own interest, and obligation, to have their samples on file to have everything above board in this regard. Was this an issue of command and control, or that they had something to hide? Either way, he found it very concerning. He wanted to know about the impact of the CODIS on the S.T.A.R lab system Criminal Justice System (CJS)/ Integrated Justice System (IJS) framework and infrastructure – would the CODIS raise compatibility issues at a software level? He asked for clarity on whether these issues had been taken on board to prevent parallel processes being run which could not be linked at the end.  

Ms Lynch clarified that all samples were destroyed. Once a DNA sample was obtained and had been entered on to the database, it would be destroyed – this procedure was being followed. Differentiation was needed between sample collection rates of arrestees and those of the offender population. The low offender rate collections were due to the lack of dedicated task teams going to prisons to take the samples. Not all the prisoners were refusing to have their samples taken, but were questioning. The DNA Project, for which she worked, had put together an educational book indicating the reasons why samples were being taken and how it would be done. Regardless of why the person was in prison, he/she still had rights in terms of the Act to understand why the samples were being taken and what would happen to them. Education would aid in ensuring the offenders cooperated and the Board agreed with this approach. The oversight Board existed for all of society, including sentenced offenders. Correctional Services had a role to play in managing the relationship between the offenders and Correctional Services staff, so they wanted the police to take the samples. The issue had been prioritised and the numbers would improve with task teams from all angles.  If offenders still refused, this was contempt and there were means of dealing with that. Overall the low sample rate had been experienced with regard to the prisons. On the other hand, the more prisoners were being trained, the more capacity there would be to take samples from arrestees. The one section of the Act not promulgated was the “must” -- in terms of schedule 8 offences, offenders “must” have their samples taken – currently this was still a “may”. Once every station had the capacity of trained individuals to take samples, the “must” would then come into operation. Until such time, capacity was still being built.

The FFS did provide a report on the numbers that were sampled. The Board was mandated to oversee that this training was occurring, which it was. The Board had also conducted spot visits to stations to ensure there were trained officials where it had been stated there was, and this number was constantly increasing. With the SAPS members not wanting their samples taken, the issue had been dealt with immediately by one of the heads of detectives, who had said it was unacceptable and wanted a list of names of those who did not want to cooperate in order to take disciplinary action. She had not followed up as to why they did not want the samples taken, but appreciated that the issue was being addressed. A police officer could not be trained unless their sample was taken. The point was that anybody working in the FSL or a detective working on a crime scene that could possibly contaminate the scene, needed their profile to be entered on the database for elimination purposes to exclude them from the investigation.  Some people did have ethical objections to having their sample taken. 

The question around the tender was difficult to answer, because the procurement board was actually responsible for the tender and not the FSL, so it was to some extent an oversight on the part of the procurement board to have the kit validated. However, it had been addressed in a subsequent bid. This was an unprecedented Act and Board, so the process was a learning curve for everybody. The point was that as problems were encountered they should be addressed to ensure they did not occur again. At its last meeting with the FSS, the Board had recommended the Service provide a validated list of suppliers to the procurement board, and that only those suppliers would be entitled to bid. This had been done overseas. This would ensure the kit was already validated and that the validation process did not occur only after the bid was awarded. The integrity of the database could not be compromised by using invalidated kits. The lifting of the moratorium of R500 000 had allowed for the procurement board to deal with other contractors so it had been addressed and, moving forward, was something which would not occur again.   

Mr J Maake (ANC) asked how the operational budget was determined – did it take into account the number of oversight visits of the Board by virtue of travel and subsistence? How were the sub-committees structured if there were fewer than ten Board members? If each member was a chairperson of a sub-committee, who were the other members of the committee? He questioned the meeting of the sub-committees in relation to the financial constraints outlined. What kind of complaints did the Board deal with, besides the issue of the SAPS members not wanting to provide their samples?

Ms Lynch said that because the Board fell under the CSP and as per the provisions of the Act, the Secretariat provided the Board.  Looking at the operational requirements, the amount the Board needed in line with its objectives for the next financial year had been requested and the Board hoped it would receive it. The Board had delegated certain issues to the eight sub-committees formed from members of the Board. Each sub-committee had two or three members, but some members served on more than one sub-committee. Some sub-committees reported back on matters to the full Board, while others communicated with the FSL. The sub-committees allowed for operations, as at times it was not possible to get all the members of the Board together. Sub-committees often met a day before or after a full Board meeting or made use of other technological means to operate, such as email or Whatsapp groups. The Board had not received any complaints as yet with regard to ethical issues or the abuse of a sample. The only complaints received to date was of some SAPS trainees refusing to have their samples taken, and that prisoners were not educated with regard to why their samples were being taken.

Ms L Mabija (ANC) was worried about the lack of office space and facilities for meetings of the Board. What steps had it taken to try and negotiate with Treasury to obtain funds for an office and a meeting space to operate effectively, as expected by the Ministry?

Mr L Ramatlakane (ANC) felt that the bulk of the issues should be raised with the CSP, because the Board basically depended on this the entity for its operation. The sooner the Committee met with the Secretariat on this issue, the better. He sought the view of Ms Lynch on CODIS. He had heard a number of countries were participants of the system, but most of these areas were federal states in the USA because the system originated from the FBI. He was concerned about security because of software and server issues. If CODIS was not used, was there another system which could be used? It may not necessarily be the responsibility of the Board to come up with an alternative system, and there was value in asking other authorities about other systems which would allow for better integration. He asked if the Board had made an input into the budget process to the Secretariat. If the budget for the Board had been given away so easily to another project, this pointed to the fact that the budget was not the Board's from the beginning.
Ms Lynch explained that the CFO attended the majority of meetings to discuss operational requirements and the general status of the budget. A lot of the initial enquiries were related to the level of staffing and salaries required by the Board for the infrastructure, namely the high-level DNA secretariat. There had also been a comprehensive application to set out the functionality required by each of the different members, where Treasury could also agree. There had been a lot of negotiation with the finance department of the CSP as to what was required from the operational perspective for members. In terms of office requirements, from the beginning the Board had indicated it needed something very small, with a telephone line and desks in Pretoria where the Board could meet, and there was a presence in terms of its work. There was always feedback from the Secretariat that they could not find or afford accommodation. This frustration would have been relayed in the minutes of the Board meetings. Eventually the Board agreed to use the government logo, email address and shared resources with the Secretariat. The Board was advised by the CSP that they did have a budget, but there was always an issue to tap into it from the outside – meeting minutes would also prove this. The CSP was also not transparent on who took the decision to reallocate the money. Had there been transparency and consultation, the Board would have said some funds could be used for the xenophobic attacks but instead there had been no consultation and it was simply taken away, as had been discovered at the end of last year. She did not think there was anything more the Board could do but continue with its work, despite the challenges. However the Board had made it clear that in the next financial year, certain structures had to be in place and that the budget was to be ring fenced. 

On CODIS, she explained it was a software solution and not a system that resided in the USA or with the FBI. Over 50 countries outside of the USA used CODIS in over 90 law enforcement laboratories. It was a widely-known, widely-accepted and widely-used software solution, like Windows, and had been in operation for a long time. The second-generation CODIS system was highly sophisticated and specifically designed to operate a national DNA database. The FBI did not have any operational functionality other than support services – it also did not have access to the system. CODIS was simply a platform upon which the country entered its profiles and managed it within the parameters of the retention framework. SA’s framework was that in three years of a person being arrested, if the person was not convicted, the profile was removed – these parameters would be entered on to the software to expunge it within that time if it did not go on to the convicted offender index. She could send more information on CODIS to the Committee, although it was widely available.

It was also very separate to the IJS. CODIS integrated with the laboratory information management system within the FSL. The FSL was part of the IJS with the correlating Case Administration System (CAS) numbers, while the CODIS system simply exported the profile at the end of the day that had been processed by the laboratory, looked at comparative searches and then communicated the information back to the laboratory to form part of the IJS. CODIS would never form part of the IJS for the integrity of the database to remain separate from other functionality. Whether it was used or not was not the mandate of the DNA Board -- the Board was mandated to ensure there was a software solution in place so that the retention framework of the NFDD was managed in the way the Act envisaged. CODIS had been identified as this software solution, but the SSA was looking at its risk assessment before implementation of the system, and this was currently where the challenge was. The fact that so many countries did make use of CODIS bore testament to the fact that there had never been recorded incidents of abuse or any breach of security. 

Ms M Mmola (ANC) asked how the Board operated without a full time, high level DNA secretariat.

Ms Lynch responded that she acted as the full-time secretariat on behalf of the Board without compensation on behalf of the Board. She wrote reports, generated policy and other work which would ordinarily be done by a DNA secretariat. She had taken on this work after being involved in the field for over ten years and she understood the law, its requirements and challenges, while the other Board members were relatively new. She still had a full time job and did the secretariat work on a part time basis, but this could not remain the status quo moving into the next financial year. She would continue to do it, however, until there was a full time secretariat as she remained passionate about translating the law into action.

Mr Maake felt that if the budget given to the Board did not allow all members of the Board to attend Committee meetings, which was unsatisfactory. Some of the Members’ questions had pertained to the individual sectors each board member came from. Perhaps the Board could try to get funding from other relevant departments, because it was unacceptable that the entire Board could not be present because of budget constraints. This in fact hindered the oversight work of the Committee.

Ms Lynch replied that the involvement of other departments was very strategic in terms of them being a conduit to facilitate the Board with sector-specific issues -- for example, the Department of Health ensuring that the training followed the correct protocols. Departments had their own issues in terms of budgets, but the mandate of funding the Board remained with the CSP. The Board might apply to the Asset Forfeiture Unit for funds in the event more was needed – it was trying to be resourceful in looking at other aspects. Some of the Board members were not present because they were unavailable, or the date of a meeting had been shifted and the chairperson had taken a decision in the light of funding constraints. In future, this would not happen again. Members of the Board were, however, very responsive and Members could contact them should they wish to pose any direct questions.    

Mr Mbhele wanted more clarity on a point raised in the presentation about detectives not wanting to do training in police stations. What did this mean, and what alternative solution had been found, or had he misheard the point? Was the issue about not wanting to conduct training in the stations?

Ms Lynch clarified that the detectives did not want to take samples in the prisons, and the visible police units were then looked at to do this after they had been trained. It was also not viable to use the detectives because they were limited in number and were very busy, while visible policing units were far more viable to sample the sentenced offender population. 

In closing, the Chairperson noted that the work conducted by the Board was very important, but there were a number of matters the Committee would have to engage with in further detail. It was clear that funding was the big issue – the Committee required the funding proposal made to the CSP last year. A report was also needed from the CSP in terms of what they anticipated as the baseline for the Board. Unless these issues were addressed, the mandate of the Board would remain unfunded. The Committee would monitor this. 

Directorate for Priority Crime Investigation (DPCI) budget Issues: Committee preparation
The Chairperson noted there was an item on the Committee agenda for the budget of the Directorate for Priority Crime Investigation (DPCI) from National Treasury next Wednesday. Also during the last few days the DPCI had again been in the news, but he would address these matters next week. The Content Adviser would brief Members ahead of this session on the issues of the DPCI budget and the fact that the National Commissioner of Police was still the accounting officer of the entity. This matter would be discussed next week in terms of its appropriateness and effect on the DPCI to do its work independently.

Mr Kinnes added that the matter of the DPCI budget had preceded the current Minister of Finance. The Committee had requested SAPS to develop Programme Six to deal specifically with the DPCI in order to ensure its independence. Currently SAPS consisted of five programmes. The National Commissioner had approached Treasury on this, and it had provided an opinion.  The five programmes of SAPS included:

  1. Visible Policing
  2. Administration
  3. Detective Services
  4. Crime Intelligence
  5. Protection and Security Services

The recommendation of the Committee that the SAPS have a programme six to accommodate the DPCI, as contained in its last Budgetary Review and Recommendation Report (BRRR), had its genesis in the litigation on the DPCI and the Glenister Constitutional Court judgement. As the previous Committee had fixed the SAPS Act relating to the DPCI Constitutional Court judgements in 2008 and 2012, for purposes of alignment, several attempts had been made for the DPCI to have its funds ring fenced as a separate programme. 

In the 2013 BRRR, the Committee had requested SAPS to ensure that the DPCI reported as a separate programme. Again in 2014, the Committee had recommended that adequate funds be provided to the Directorate and that a portion of the criminal justice system revamp fund was made available to the DPCI to capacitate its growth and for the development of detectives specifically in the cyber and commercial crime environment. In 2015, the Committee had recommended that SAPS implement the full provisions of the SAPS Amendment Act (10/2012) in respect of the budget of the DPCI, in view of the fact that these provisions had not been implemented. The Committee had also sought a full report on the implementation of all provisions of the Act with respect to the DPCI.  The Committee had noted the Constitutional Court judgements, where remedial action had been recommended to strengthen the independence of the Directorate.

The Committee would meet with National Treasury on impediments to the establishment of a separate programme for the DPCI in the upcoming years. The Committee recommended a meeting be held with the Minister of Finance to address issues surrounding the DPCI. The Committee also noted SAPS had received a directive from National Treasury with respect to the recommendations by the Committee on the ring fencing of the DPCI funding, and that a Programme Six be created in the Annual Report. A research report by the Parliamentary research unit in 2014 had also further outlined the provisions of the Act pertaining to the DPCI. Last year the head of the DPCI had informed Members that he had no control over the DPCI budget, and sought better control of it. 

The Constitutional Court judgement had been handed down on 27 November 2014 in terms of the constitutionality of certain sections of the SAPS Act. The Court had highlighted that the budget of the DPCI had been exclusively appropriated by Parliament, and neither the Executive Authority nor the National Commissioner had the final say on the level of the DPCI’s funding. The national head should have control of the DPCI budget appropriated by Parliament. During the engagement on the implementation of the BRRR, SAPS had indicated that the budget had been ring fenced. However, the head of the DPCI had indicated he had had problems with control over the budget, and had asked the Committee to intervene. The SAPS National Commissioner had said Treasury had not approved the creation of a Programme Six, and this had led to the proposal of a meeting with the Minister of Finance. Treasury had indicated they were not satisfied with the reasons for there to be a separate programme

Committee minutes
The Committee adopted the minutes of the 26, 27, 28 and 29 January 2016. Committee Minutes dated 2 February 2016 were not adopted.

The meeting was adjourned.

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