DNA Board 2016/17 Annual Report

Meeting report

DNA Board Annual Report

Arrival of Board chairperson delayed

The Chairperson said the Committee was supposed to get a briefing by the DNA Board on its annual report, including some outstanding issues. It seemed there was a dilemma with regard to the availability of the chairperson of the Board, and this should be explained by the delegation team.

Mr Mark Rogers, Director: National Forensic Oversight and Ethics Board (DNA Board) Secretariat; apologised to the Committee, saying that the Board’s chairperson, Judge Yvonne Mokgoro, had experienced difficulty with her flight to Cape Town, but was on a flight currently. It was anticipated that she would be at the meeting by 15:45 the latest. There had been technical glitches on the plane that Ms Mokgoro had taken. They had been disembarked and had needed to make alternative arrangements.

Ms M Mmola (ANC) said that the judge clearly did not take the Committee seriously, as she was supposed to here yesterday. The Committee was not going to wait for her, as she should have been here from yesterday.

Mr Z Mbhele (DA) said he was sympathetic towards Judge Mokgoro, as the Board was currently in a financial crisis and therefore they would have wanted to avoid spending money on overnight accommodation by taking a same day flight. It made a perfect sense to take an early morning flight, but there had been unforeseen circumstances.

The Chairperson said the main dilemma was that most of the questions that would be posed by Members would be to the executive authority. The Committee would wait for the judge to arrive, and the item dealing with the DNA annual report would be postponed if the she did not make it to the meeting by at least 15:45. The Committee was scheduled to meet up until 17:00.

Ms L Mabija (ANC) suggested that the Committee should continue with the meeting, even if Ms Mokgoro did not make it to the Committee, as it would not be proper to cancel the meeting just because of one person.

Ms D Kohler Barnard (DA) wanted to know where the other eight members of the Board were, as they were supposed to be present at the meeting. The Committee was aware that Ms Vanessa Lynch, the deputy chairperson of the Board, was in hospital.

Mr Rogers responded that all the other Board members had apologised as they said they could not attend due to other commitments. 

Ms Mmola questioned how Ms Kohler Barnard knew that the deputy chairperson was sick and now in hospital, as some of Members were not aware of this.

Ms KohlerBarnard clarified that this was the information that she was provided by the deputy chairperson.

Mr J Maake (ANC) commented that the Committee had called this meeting because there seemed to be problems within the DNA Board. The fact that all members of the Board had apologised showed that there were indeed problems. The Board was a very important entity and it was dysfunctional at the moment. The Chairperson should come to the Committee and answer to all the concerns of Members.

The Chairperson maintained that the Committee should still wait for the chairperson before making a decision on the way forward.

Mr Rogers updated the Committee that Ms Mokgoro was currently in the shuttle to Parliament and would arrive in 15 minutes.

The Chairperson proposed that the Committee should then hear the presentation by the DNA Board in the hope that the chairperson of the Board would be present during the discussion.

Ms Mabija asked why the Committee had had to wait this long before getting the presentation from the DNA Board.

Mr L Ramatlakane (ANC) said that the Committee was scheduled to sit until 17:00, so there was still time. The Committee should deal with all the items for today, including the presentation by the DNA Board.

The Chairperson said that Parliament’s recess was fast approaching and the Committee had to use today to deal with the presentation, and get detailed information about what was happening at the Board.

Ms Mabija commented that it did not make sense for the Committee to proceed with this meeting in the absence of the chairperson.

The Chairperson maintained that the Committee needed to proceed with the presentation by the DNA Board.

Briefing by DNA Board

Mr Rogers said that the DNA Board was an independent statutory body established in terms of section 15V of the Criminal (Forensic Procedures) Amendment Act. The Board’s statutory obligations were defined in terms of section 15Z of the DNA Act, with a focus on providing regular, independent oversight over the overall operations of the National Forensic DNA Database (NFDD). There was also a focus on ensuring that ethical, legal and social implications of the use of forensic DNA in criminal investigations were taken into consideration. The Board received and assessed complaints from any affected person regarding any alleged violations relating to the abuse of DNA samples and forensic DNA profiles, and any security breaches in the database or processes. The Board had developed its own governance rules and procedures in accordance with section 15X (2) of the DNA Act, and this was supported by the respective sub-committees’ charters, which provided a framework for the effective and efficient functioning of the Board. There were a number of sub-committees that had been established, and these included the system reports and gap analysis, public relations, assessment, finance and risk and human resources (HR).

The appointment of a DNA Secretariat with support was a priority, as the Secretariat should assist the Board in developing and implementing its reporting obligations as outlined in the DNA Act. The relevant sub-committees were to continue liaising with the nodal contact point with a view to completing oversight reports. The sentenced offender sampling programme had to be prioritised due to the expiry of the two year transitional period. The policy for familial searching had to be finalised and implemented.

There was continued monitoring of the sample collection and performance of the NFDD. There was a need to oversee the implementation of the NFDD software solution to support comparative searches. There was continuous monitoring of the roll-out of buccal swab training.

There were a number of operational challenges. These included the fact that the DNA Secretariat had not been appointed during the period under review, and this had impacted negatively on the Board’s ability to properly map out and implement its statutory reporting functions. There was also a challenge in terms of inadequate office space and absence of Information Technology (IT) infrastructure, like a website and a lack of a distinguishable brand identity or logo, and this had impacted on the Board’s ability to create the necessary public awareness. The Board had had a challenge where members had not been remunerated for out of pocket expenses during the 2016/17 financial year, but the matter had subsequently been resolved and members’ payments had been made as from May 2017.

Mr Rogers said that the National Forensic DNA Database showed that there were 388 673 crime scene indexes that were still loaded, and 26 428 elimination indexes were still being loaded. There were 64 308 convicted offender indexes loaded. Regulation 9 of the DNA regulations prescribes a number of factors in respect of following up on forensic investigative leads, including:

• Every provincial commissioner must ensure that forensic investigative leads were investigated and resolved;
• The divisional commissioner on detective service and the provincial commissioner must ensure that investigations and leads were communicated and coordinated across stations or provincial borders;
• Every task team must consolidate all forensic investigative leads or cases which indicate links based on information such as modus operandi, DNA and fingerprints;

The Board had written to the National Commissioner highlighting its concerns regarding the high number of outstanding leads.

There was a total of 3 176 unknown suspects, with most of them in Gauteng (885), while the smallest number was in the Northern Cape. There was a total of 5 959 cases involving unknown suspects, with the largest number in Gauteng (1 910), while Northern Cape (104) had the lowest number.  There were 4 967 cases of known suspects, while the number of known cases was 3 741.

Since the inception of the DNA Act, the number of cases registered had increased from 58 395 to 505 257 (765%), while the number finalised had risen from 48 349 to 475 486 (883%). The 4.4% increase in staff over the same period was insufficient and not sustainable over the medium to long term. The persistent human and financial resource constraints would negatively affect the ability of the Forensic Science Laboratory (FSL) to ensure compliance with the provisions of the DNA Act. The Service Level Agreement (SLA) between the State Information Technology Agency (SITA) and Technology Management Services (TMS) had not yet been finalised.

In terms of section 36D (1) and (2), samples must be taken from persons whose names appear in the national register for sex offenders. Despite numerous requests to the Registrar, this information had not been provided. Section 7(7) of the DNA Act prescribed a two-year period within which a sample must be taken from any person already convicted in respect of any schedule offence. The transitional period had expired in January 2017, and due to operational challenges such as training, refusals and systems requirements, the total convicted offender population had not been sampled at the date of expiry.

Mr Rogers said that emphasis must be placed on processing the Amendment Bill to ensure the continuation of the convicted offender sampling programme. The Board would engage all provincial commissioners to establish possible areas of support to unlock challenges related to the effective functioning of the provincial task teams. Urgent measures had to be put in place to address challenges related to the procurement of buccal swab sample kits and the maintenance of critical equipment.   

Discussion

The Chairperson asked about governance within the DNA Board, as it did not look as if the Board was still functional. Was it still functional? What was the opinion of the chairperson of the Board about the overall performance of the Board? The Committee should be briefed on the issue of the late tabling of the annual report for 2016/17 financial year. The Civilian Secretariat for the Police Service (CSPS) had flagged the issue of the state of the Board. Was there any crisis within the Board?

Ms M Molebatsi (ANC) said that the Committee had been told about the shortage of DNA kits at various police stations. What was the situation?  It would be important to hear if the Board received any reports of the destruction of records bodily samples. The Committee had been told last week that the Board was reluctant to table and make available its annual report. Why was this the case?

Ms Kohler Barnard said that the Secretariat had sat in this Committee last week and stated that the Board was currently dysfunctional, and that one of the reasons the DNA Bill had been returned to Parliament was because the Board could not provide the Minister with the information that was required, and this was the responsibility of the Board. The DNA Board had been dysfunctional, as it was always focusing on issues that were the mandate of the Accounting Officer, and they saw themselves as the statutory Board doing oversight of the Accounting Officer. The CSPS had required the Board on several occasions to provide the annual performance plan (APP), and it had declined to provide it. The DNA Board sometimes wanted to account to the Minister when it suited them, and then account to Parliament when it suited them, and it was extremely difficult to manage them. The Secretariat had also spoken about the possibility of the Board being dissolved. What was the response of the Board to this? The SITA should not even be the one to develop the familial search function. Why were the delays on this issue? It had been mentioned that laboratories were not coping with the increased number of cases. What was the current situation in regard to this? It was horrific, but not surprising, that the Registrar of the Sexual Offences Register had not provided the Board with relevant information on the people in that register. The reality was that schools often did not check the register, and there were teachers who were sex offenders but were teaching children, and this was catastrophic. It would be important to hear from the Board whether there was any written report on why this information had not been provided by the Registrar.

Mr Mbhele commented that there had been a decline in Board meetings from the 2015/16 to 2016/2017 financial years. Had the establishment of the committee meant that most of the work had been delegated to sub-committees? Did this not spell systemic risk around the work of the Board? The Board was initially established as an oversight and regulatory body, but the operationalisation of the Board resided entirely in the South African Police Service (SAPS) and the Department of Correctional Services. It was concerning that SAPS still had control over the mandate and budget allocation of the Board. The important question was whether the Board had any meaningful “teeth” to play an essential role as the regulatory board. This lack of teeth was the major problem hampering the work of the Board. He asked for feedback on this aspect, particularly linked to its independence.

Mr Ramatlakane asked who was responsible for doing the Board’s financial projections. Was it able to ensure that government rules were being followed? What issues were in the APP in relation to the rules? There was also indication of a lack of independence of the Board, and this needed to be explained further. The matter of funding was likely to be problematic, since the Board was funded by SAPS. Was there any explanation for the removal of the escapees?

Mr Maake wanted to know the cause of the blockage on the logo of the Board, as this looked like an administrative matter that needed to be resolved.

DNA Board’s response

Judge Mokgoro apologised for the delayed flight that had caused her to arrive late at the meeting today. She said she had had an opportunity to listen to the audio clip of the meeting at which Mr Rapea, Secretary of the CSPS, had expressed the startling view that the Board was dysfunctional and there was a possibility of dissolving the Board. The Board had operated by itself up until the appointment of the Director last year. It had established sub-committees through which it operationalised its work. It had become the policy creating functionary, and the sub-committees had created protocols and charters which Board would exercise its oversight functions in terms of the Act.

The Board had only one person to assist the Board with making arrangements for various meetings and taking minutes, and was doing everything else by itself. Mr Rogers had arrived only in June 2017 and Ms Noluthando Xuba was the secretary of the Board. The Board did not have a Secretariat. The Board had a budget of R3.1 million and had to operate with that budget. There were plans in place to create a fully-fledged Secretariat with supporting staff. The Board also needed space and it could not appoint a much needed deputy director who would also serve as the investigative officer who would go around to the provinces to do the work that might have to be done by sub-committees.

Judge Mokgoro said it had been decided to reduce the number of Board meetings to four this year, and sometimes it could not even do that because it was almost like a functionary or executive Board, while it should be focusing on its mandate in terms of the Act.

Ms Molebatsi made a humble request for the judge to respond directly to the questions that had been asked by Members.

Judge Mokgoro replied that all the work that had been done by the Board, including the meetings it had and exercising oversight, was evidence that the Board was doing its work. Mr Rapae of the CSPS was part of the Board, and all the questions that had been asked by Members in regard to the function and role of the Board were part of the meetings that it had had with Forensic Science unit. The Board was exercising its oversight and monitoring role, and this pointed to the fact that it was functionary. There were constant meetings where it dealt with a number of issues, and there were plans in place to have a strategic planning session where it was hoping to make a decision on how the annual performance plan (APP) would be derived. The Board was wholly functional and it was working incredibly hard to achieve its mandate.

The Chairperson wanted to know if Mr Rapea had flagged the concerns he had expressed in the Committee last week, at Board level.

Judge Mokgoro responded that Mr Rapea had never flagged those issues at Board level, and that was why everyone was startled that he had made those claims. In fact, if Mr Rapea was absent from a meeting, he would send Adv Dawn Bell to stand in for him. The last time Mr Rapea had attended a meeting was when the Board had discussed the issue of the lean budget, and how crippling it was to the idea of appointing additional staff and getting staff of its own. Mr Rogers had been assisting the Board with quotations, as it could not even take out R200 000 because it was just too much for the strategic planning session. It had discussed its budgetary issues which precluded it from getting the resources it needed to be fully functional. A ring-fenced budget was needed, and all these issues were discussed. Mr Rapea had never discussed the need for dissolution with the Board. It had not had one-on-one meetings with Mr Rapea, and he had never made those startling claims.

Ms KohlerBarnard asked if officials from different government departments, like the Department of Correctional Services and the Department of Health, were able to attend these Board meetings. Were they fully represented?

Judge Mokgoro responded that they were not always at these meetings, but these members were fully employed somewhere else and therefore they did not always have time for these meetings. There were times when all Board members were present at the meetings, but it was mostly the members of the CSPS who attended regularly. A decision had been taken to question someone who did not come meetings three times in a row, but there were no people currently who did not come to the meetings more than twice. 

Ms Kohler Barnard said that it looked like the Department of Correctional Services was the one Department that was letting the Board down by not attending these meetings. Which government departments tended not to attend them?

Mr Ramatlakane suggested that perhaps the Committee should be forwarded with the attendance register to see who was not attending these meetings

Judge Mokgoro repeated that there were rare situations where there would be 10 members at a meeting. The attendance register could be forwarded to Members later on.

There were serious shortages of DNA kits, and this issue had also come up at last year’s meeting. The Board, together with the Forensic Science unit, had discovered that the procurement unit of SAPS seemed to be struggling with the procurement of these DNA kits. The Board had written to the National Commissioner, emphasising the impact this might have on the DNA sampling and profiling of a person who had been arrested. The Board had been told that SAPS would look at the available DNA kits at police stations, and relocate some of the kits to those stations with dire needs. The Board was waiting for the National Commissioner to respond.

The Chairperson said there were also problems with company that had been providing DNA kits to SAPS, as it had been blacklisted. The Committee would be dealing with the issue of contract management within SAPS this coming Thursday, and this would include all those issues related to procurement from SAPS, including the issue of DNA kits. It was clear that there was a crisis within SAPS and this was a matter of concern.

Judge Mokgoro responded that even SAPS admitted that there was a crisis in the procurement environment. It was startling to hear Mr Rapea putting the blame for the shortage of DNA kits on the Board, as this was a problem within SAPS.

Section 15 of the Act specifically defined the Board as an independent institution, and its monitoring role was defined as independent. The Board was of the view that it would be difficult to conduct its oversight role if it did not entrench its independence. However, this did not mean that the Board would be obsessed about independence but it still needed to entrench its independence. There were administrative aspects of the work that the Board could not do it by itself, and 60% of Board members were civilians and were not familiar with the Public Finance Management Act (PFMA) and other prescripts, and it was the CSPS that should guide the Board in this issue. The Board was not operating at its optimal level as it needed to fill some of the vacancies. There was no way one could say that the Board was operating optimally with only two members in its Secretariat.

Judge Mokgoro explained that the role of the Board was that of monitoring and exercising oversight on how other entities were managing DNA. It had a mandate to ensure that DNA sampling was done in accordance with the Act. The Board did not only need to be efficient, but it also needed to be effective. There was an accumulation of analysis that needed to be undertaken in laboratories, and most laboratories did not have the stocks. The Board would ideally like to have four meetings yearly, and this could be done once the Secretariat was up and running.

The Board would continue to have sub-committees operating, because they were busy with finalising policies and protocols, including the entity’s charters. Its current charters were rather operational, and this was because the Board did not have a Secretariat. The charters were now going to be more strategic. Mr Rapea had made the assertion that the Board trended to get involved in operational issues -- this might be right, and could be an issue to be clarified. There were always one-on-one meetings with Mr Rapea where those issues that still lacked clarity could be ironed out.

Mr Ramatlakane said that it would help for everyone to be frank and clear about the challenges of the Board so that the Committee could intervene where necessary. It was clear that the problem was that the Board was not operating optimally. Judge Mokgoro needed to be frank and open about the challenges it faced. It was surprising that there was a vast difference between the judge and the Secretariat of the CSPS as to whether the Board was operating optimally or not, and this pointed to deeper challenges. The chairperson of the Board was not on the spot here, but the Committee needed to get to the bottom of the problems.

Regarding the independence of the Board, the explanation that had been provided was still not clear. The intention was not for the Board to be untouchable, but there had to be a level of independence. The Committee was not being judgmental, but it needed to be frank about the existing challenges within the Board.

The Chairperson said that the Board had to adhere to other prescripts, like the PFMA and Parliament. All the Board members to be present at the meeting when the Committee was dealing with other issues. If there were problems linked with the SAPS, then it had to know about them immediately.

Judge Mokgoro responded that she was finding it extremely difficult to understand on what Mr Rapea had based his assertions, except that he might be worried that the Board was overly emphasising its independence. The Board was working with the CSPS, and they deal with its APP and strategic plans.  They got the entity its website and all other resources to be used. The CSPS was the one responsible for strengthening the administrative side of the Board, and there was a general understanding about this. There was a general saying that the one who made the budget was the one who determined the issues, and the Board did not want a situation where its budget was freely managed by the CSPS without even consulting the Board. It did not want the CSPS to use its unspent budget for their purposes, as there should at least be consultation on this issue. The CSPS was the one to provide the Board with administrative resources. There had been cases where the CSPS would use the Board’s unspent budget in areas where they had overspent, and it was for this reason that the Board was obsessed about its independence. There was hope that one day the Board would have its own budget, even if it came from the CSPS, but it should at least be ring-fenced so that the Board could use it for its own purposes.

There had been an increase in the budget allocation for this financial year, and it was hoped that the Board could appoint a deputy director and address some of the IT challenges. The Board had managed to get its own website, but was still struggling with having enough space. There was not even enough space for the two people it had appointed.

Judge Mokgoro explained that the Board wanted to have a separate and different logo, as this was important for the Board to be seen as an independent oversight body. It had insisted on having a separate website to ensure that it had a greater level of independence. The Board did not have a problem with having a logo next to that of the CSPS, as long as it was known for the particular logo when it was communicating with the general public or government departments. The Secretariat was helping the Board with the logo, and there were three images that the Board was considering in order to decide which one to use as part of the logo.

Mr Rogers said that the Board had written to the Chairperson of the Committee last year -- on 3 and 24 November -- where it had given reasons for the late submission of the annual report. There were genuine challenges in getting the documents signed-off by the Minister of Police at the time, and the Board had tried to follow up on this issue with the Chief of Staff of SAPS, but without any success. There had also been challenges in actually compiling the annual report in respect of its structure and format.. The report currently included the six-month progress report in it. There had been resistance when the Board indicated that this was not how the annual report was supposed to be compiled, and this had resulted in further delays.

Mr Mbhele wanted to know if the resistance had been from the Secretariat or from the Board.

Mr Rogers replied that the resistance had been from the Board, which had insisted that the Annual Report must be submitted in its current format as it had always been accepted previously in this format. The Board had received a letter from the CSPS on 25 January 2018 indicating that the Board needed to put together a draft APP. This needed to be submitted to the Minister’s office on 30 January, and the Board would be considered as a sub-programme within the Civilian Oversight Monitoring and Evaluation Programme within the CSPS. There was also a directive that was issued by the National Treasury in that respect.  There had been significant resistance from the Board, and this had resulted in the reason why the APP had not been submitted -- and was still not being submitted. There was a resistance to being a sub-programme, despite the fact that the Board had sent Treasury documents explaining what it meant to be a sub-programme.

The Chairperson said that the Committee had now received the official annual report of the Board, and it now had to submit a report to the National Assembly with recommendations. The Committee would give the Board an opportunity to write to the Committee about issues that they wanted to be included in that report.

Mr Mbhele asked if there had been a meeting of minds between the Secretariat, Mr Rogers and the Board, as there had been concerns around the independence of the Board. The issue of ring-fencing the budget was something that the Board might need to do to ensure that there was a greater level of independence.

Judge Mokroro said that there had not been the meeting of minds between the Secretariat and Mr Rogers, but there would be a strategic planning session to iron out most of the issues.     

Mr Tumelo Nkojoana, Chief Financial Officer (CFO): CSPS, said that the CSPS was supposed to be there to provide administrative assistance to the Board. The Board at the moment was not functioning optimally, and this was what the Secretariat had also said. The Board had had R1.2 million when it started in the 2015/16 financial year, and the budget was now currently sitting at R3.8 million for 2018/19 financial year, which was an astronomical increase from what the Board had at the beginning. The Board had to understand the urgency with which they needed to appoint their administrative staff, because their spending trend showed that the Board spent reasonably only when they had appointed the Director. This was when the Board had spent 65% of its budget. The Board had never sat down and tried to shortlist the required posts, and this was a major concern. The Board had been allocated R3.1 million in the 2016/17 financial year, and only 21% of the budget had been spent. Currently, the Board had about R3.1 million that still needed to be spent in this current financial year, and this was despite it being two months into the new financial year. This trend showed that the Board might end up spending 60% of its budget. The Board wanted to be given more funds, but there was no basis on which they should be increased, because no APP had been submitted.

The Chairperson proposed that the CSPS should by next week give the Committee a three page report about the main issues within the Board, and what had to be done going forward. The Committee had now officially received the annual report of the Board. There had been an admission that the Board was not dysfunctional, but that it was not functioning optimally. The Board must be able to exercise its oversight function. Any relationship problems between the CSPS and the Board must be sorted out immediately as they must work together. The Committee would wait for those written reports and then write a report that would go to the National Assembly.

Adoption of minutes

Earlier, the Committee had spent the morning session dealing with minutes dating from 10 May last year up to 5 June 2018. The Chairperson had read out all the minutes, page by page.

The Committee had not adopted the minutes of a joint meeting with the Portfolio Committee on Higher Education on the afternoon of 20 June last year, as it was still not clear if that Committee had adopted the minutes on their side.

The Committee adopted all the other minutes, with amendments.

The meeting was adjourned.