Criminal Law (Forensic Procedures) Amendment Bill: deliberations

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23 March 2022
Chairperson: Ms T Joemat-Pettersson (ANC)
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Meeting Summary


In a virtual meeting, the Committee held deliberations on the Criminal Law (Forensic Procedures) Amendment Bill [B25-2021].

The Committee recapped the key discussions regarding the Bill, which included the concern of the capacity of the South African Police Service (SAPS) Forensic Science Laboratory (FSL) for DNA analysis; the lack of equal resourcing across laboratories and the use of “minimum force” when offenders refuse to have buccal samples taken.

Members stressed the importance of ensuring there was capacity to implement the Bill, especially the FSLs, and the Committee must play its role in ensuring the FSLs have financial resources (through the budget process). There was concern about the disparity between the FSLs in the provinces.

Members were positive the taking of buccal samples would contribute to the eradication of crime.

Members discussed alignment of the Bill with what is already contained in s36D(1) of the Criminal Procedure Act and use of minimum force.

Concern was voiced on the involvement of the DNA board - the Committee needs to request the DNA Board to up its performance and ensure it fulfils its role because the country and the Committee are very dependent on the DNA Board’s performance.

There was cross-party support for the Bill and Members were committed to seeing its success.

Deliberations on the Bill would continue next week. 

Meeting report

Opening remarks
The Chairperson said the Committee would be deliberating on the Criminal Law (Forensic Procedures) Amendment Bill [B25-2021]. This is after the Committee had listened to all of the input from the different stakeholders.

Adoption of minutes
The Committee considered and adopted its minutes of 16 March 2022.

Recap on the key concerns of the Criminal Law (Forensic Procedures) A/B
The Chairperson asked the Committee Researcher to give Members a recap on some of the discussions pertaining to the input from the public.

Ms Nicolette van Zyl-Gous, Acting Content Advisor and Committee Researcher, said one of the key concerns related to the capacity of the South African Police Service (SAPS) Forensic Science Laboratory (FSL) for DNA analysis. This is a key issue that can be addressed through policy rather than through the Bill. There was concern regarding the contract management of FSL consumables and the maintenance of equipment.

The Members raised concerns on the sustainability of the intervention model, especially regarding working overtime and having FSL staff members overloaded with work. The Department said overtime work was a short-term approach and the backlog should be cleared by August.

The Members raised concerns about the lack of equal resourcing across laboratories. It seemed the Western Cape laboratory was better resourced than the laboratory in Pretoria, which is the head office. The Department said resourcing issues will be addressed going forward. The ideal is for every province to have the basic capacity to do forensic analysis. Complex analysis will be done in the bigger laboratories.

The issue of minimum force was discussed quite intensely. The Department made it clear the use of minimum force is well established within South African law. The Bill provides for the development of National Instructions regarding what is considered to be minimum force. This should be developed as a matter of urgency.

During the deliberations, Members spoke about s36D(1)(b)(v) of the Criminal Procedure Act, which already allows buccal samples to be taken from any person charged or convicted by a court in respect of any offence. Members asked why the Bill was necessary, as the Criminal Procedure Act already makes provision for the taking of buccal samples, irrespective of the schedule offence.

The Civilian Secretariat for Police Service (CSPS) said the Bill is only aimed at Schedule 8 offenders who were already incarcerated before the two-year transitional period lapsed. This Bill only takes away the time limit provided to take buccal samples of already convicted Schedule 8 offenders.

Deliberations on the Criminal Law (Forensic Procedures) Amendment Bill
The Chairperson said Members could either discuss the Bill clause-by-clause or highlight which clauses the Committee would want amended.

Dr P Groenewald (FF+) said the CSPS clearly said the Committee will request confirmation from the SAPS on operational, financial, and resource level regarding its ability to meet its targets with the further implementation of the Bill. This is an important concern because if SAPS experiences problems with implementing and compliance once the Bill is approved, then the Department will end up in the same situation as the present situation. As lawmakers, the Members have an obligation to the public to ensure there is legislation in place to protect the public.

The public submission by Legal Aid South Africa noted taking of buccal samples does not necessarily contribute to more crimes being solved. Dr Groenewald said he personally believes taking buccal samples makes a contribution to the eradication of crime.

The Bill should be written to reflect best interests. It is a challenge for the FSL to ensure it can comply with the Bill. The Committee must play a role to ensure finances are made available so FSL can comply.

It is also important for CSPS to consult with the SAPS on the obligatory taking of DNA samples of Schedule 8 offenders. Section 36D(1) of the Criminal Procedure Act can be implemented.

The submission by the SAPS mentioned several principles which should be considered in the proposed National Instruction. The Committee must see how it can assist to ensure SAPS complies with the application of the law.

Mr A Seabi (ANC) said he would have been comfortable with aligning the Bill with what is already in law, particularly s36D(1) of the Criminal Procedure Act. He referred to the public submission by the Congress of South African Trade Unions (COSATU) and its proposal for buccal samples to be collected from all persons convicted and imprisoned, irrespective of which schedule offence. The Department’s response to the public submissions pointed out it already provided for this in the Criminal Procedure Act. The use of minimum force is also already written into the law. The Bill should align or refer to what is already in the law, so once it is assented to by the President, it is already aligned to the Criminal Procedure Act.

Mr O Terblanche (DA) said this is a very important piece of legislation because it addresses ensuring the police and criminal justice system will be able to deal with criminals effectively. This Bill has his full support. The Bill mainly contains two clauses, the one clause deals with definitions and the other clause deals with the sampling of convicted Schedule 8 offenders. This is because the police service was not able to complete the process of taking buccal samples from all convicted Schedule 8 offenders within the period of two years provided for in the Criminal Law (Forensic Procedures) Amendment Act, 2013. He therefore welcomed the opportunity this legislation afforded, of allowing the police to catch up. The police will have to ensure this time it takes buccal samples within the acceptable timeframe. He reiterated Dr Groenewald’s remark about a proper budget that would have to be allocated for this purpose.

He noted SAPS said it is able to deal with the backlog and it has the capacity to deal with the additional workload. He said he is concerned about the DNA Board’s involvement, which has also been extensively raised by the Committee. The Committee needs to request the DNA Board to up its performance and ensure it fulfils its role because the country and the Committee are very dependent on the DNA Board’s performance.

On the lack of equal resourcing across laboratories, he asked when the laboratory in KwaZulu-Natal will be brought up to speed. He asked why the Western Cape's laboratory is better equipped than the other provinces' laboratories, and if this was because it was most recently built.

Mr H Shembeni (EFF) said according to his understanding of the Amendment Bill, the timeframe was set from 27 January 2015 and expired on 26 January 2017. SAPS was not able to complete the process of taking buccal samples from all convicted Schedule 8 offenders. At the same time, the SAPS was still covered to take buccal samples as this is provided for in Section 36D(1) of the Criminal Procedure Act. He reiterated Mr Seabi’s comment about the Bill being aligned to the provision in the Criminal Procedure Act. He asked for clarity regarding if the Bill was mainly to address the expired timeframe for the taking of buccal samples.

The DNA Board had come before the Committee to discuss its action plan which was evident in the developments with the FSL. There were many developments regarding the backlog and the issue of contract management.

The use of minimum force is not clearly defined and there is a need to address what will be done if a person refuses the taking of a buccal sample.

Ms B Marekwa (ANC) said after listening to the public submissions and responses to the Bill, she is pleased all of the parties agreed in principle and highlighted areas that needed to be looked into to ensure the Bill is a success. When the Bill is approved it will assist the criminal justice cluster by ensuring the cases before the courts are dealt with without delays and with evidence. She expressed the importance of capacitating the police and continuing to decentralise the laboratories so more provinces have laboratories in each respective province. It is problematic to transport DNA samples from one province to the other as it would cause delays and has financial implications. As much as the SAPS indicates FSLs have the capacity, it is still a concern. The issue of the maintenance of machines at FSLs should also be looked into to ensure the machines are up to the task.

Regarding minimum force and the issue of arrested persons' refusal to have buccal samples taken, she said to an extent, once a person is arrested does the law allow a limitation on particular rights.
Mr M Shaik Emam (NFP) said the NFP supports this Bill. It is important to be mindful of some of the challenges, however. The passing of the Bill is one thing, but being able to implement it is where the problems arise. The question which must be asked is if the Department has the technical capacity and if it has the financial resources. The Committee knows for a long period of time the Department has had serious challenges regarding delivering timeously.

The unequal state of laboratories across the provinces must be addressed so there are quality services at all laboratories. If samples must be transported from one province to another province then there are a lot of implications. There are already serious challenges with corruption. The Department must try to minimise this and ensure DNA samples are dealt with in the respective provinces.

The Department said the backlog would be addressed by August, but looking at the report on what is happening in Gauteng, he does not think the Department will be able to achieve this. After the Bill is passed, the Committee should and must conduct monitoring and evaluation over the Department in this particular aspect, to ensure the Department has the necessary resources and absorbs the necessary technical skills. Most of these technical skills are being taken away by the private sector because of unpleasant working conditions at the state institutions.

State Law Advisor’s comments
Adv Sisa Makabeni, Senior State Law Advisor, Office of Chief State Law Advisor, said he would address the question on the alignment of the Criminal Law (Forensic Procedures) Amendment Bill with s36D(1) of the Criminal Procedure Act. The amendments to the Bill brought about were contained in the Criminal Law (Forensic Procedures) Amendment Act, 2013. This Act affected amendments to the Criminal Procedure Act through the insertion of Section 36(D) to Section 36(E). It also inserted "Schedule 8" into the Criminal Procedure Act. The Criminal Law (Forensic Procedures) Amendment Act, 2013, also affected amendments to Chapter 5 of the SAPS Act, to deal with the DNA database and the collection of samples. There is alignment between the provisions of the Act and the Bill. The amendments being dealt with now were part of the Act as a transitional arrangement to deal with people already in custody. Although there are provisions in the Criminal Procedure Act, there was a need to deal with people who were already in custody, who would not have been covered by the provisions as inserted.

It was necessary to make a provision for the use of minimum force because there is provision in the Correctional Services Act. Although there is proposal for a warrant from a judge or a magistrate, there would still be a question of what would happen if a warrant was issued and the person still refuses to submit to the warrant and have the buccal sample taken. There needs to be some way of enforcing this. The current provisions of the Correctional Services Act specify certain instances where minimum force can be used. The challenge is to create a limited provision outside of these current provisions, for officers to use minimum force when enforcing the warrant, which would be issued by the judicial officer. The Bill also provides for a National Instruction by the National Commissioner to specify how minimum force would be applied.

Further deliberations
Ms Marekwa said the intention to have the Bill passed is to strengthen the arm of the criminal justice cluster, specifically the police, the courts, and correctional services. The input made from the public submissions assisted. Capacity is very important because there are currently only four laboratories. It is important for there to be laboratories in all provinces to avoid funds spent on travelling to laboratories across provinces. Each province should have laboratories to deal with its own DNA samples. The laboratories and their machines should also be well maintained. As SAPS continues to employ, it should look into qualifications.  It must start to employ more people with a science background to ensure the personnel at laboratories have the necessary skills.

The Chairperson commended the input from the State Law Advisor, Adv Makabeni.

Adv Dawn Bell, Chief Director: Legislation, CSPS, said the CSPS would go clause-by-clause to see if there are any amendments to be effected. It has been very enlightening to see that the Bill has received such support. She thanked the State Law Advisor for also responding to the question which was asked.

Committee matters
The Chairperson said she would like the Committee to hear from the public and any other stakeholders as much as possible. She had to postpone the meeting on the coming Friday since she had already received too many apologies for Friday and it was clear there would not be a quorum. The Committee will conclude the deliberations next week Wednesday and then follow the processes with Parliament.

The Committee is also planning its Strategic Planning session, which will be virtual. The Strategic Planning session will be based on what the Committee is focused on. After the new National Commissioner has been appointed, the Committee will have a session with SAPS.

Dr Groenewald agreed regarding the Strategic Planning session not addressing too many issues. It should focus on the main issues.

Mr Shembeni said the Committee ought to visit all of the police stations in South Africa to see the conditions the police members work under. The Committee should also visit the state garages. He had recently read an article about 1168 vehicles in Gauteng which were parked without being serviced or repaired. The oversight visits are necessary because a lot is at stake.

He heard a voice message saying on 27 March in KwaZulu-Natal, Operation Dudula would be stopping everything and closing down shops. He asked if this is what happened in July last year. He was not sure if the SAPS was aware of this.

The Chairperson said all of the debates and all input were captured as the Committee is now in the process of preparing its report to Parliament.

Mr Shembeni said that he heard of reservists protesting in Pretoria or Johannesburg at the SAPS offices, about the enlistments. He asked if SAPS could inform the Committee about this.

The Chairperson said she will definitely contact the SAPS and get feedback on Mr Shembeni’s question as soon as possible.

Ms Z Majozi (IFP) asked if the Chairperson received feedback on complaints she had brought forward to the Committee. She asked if there was any response from the Minister or the National Commissioner.

The Chairperson told Members the transition from the current National Commissioner to the new National Commissioner will set the Committee back a bit. The current National Commissioner is handing over to the Minister and Deputy National Commissioners. She will follow up on the questions, but for now, it is taking a while to get satisfactory responses from the National Commissioner’s offices.

The meeting was adjourned.


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