Criminal Law (Forensic Procedures) Amendment Bill: Public Participation Report & way forward

Meeting report

The Committee Secretary said she had received apologies from the Minister, who would be attending a South African Police Service (SAPS) management meeting and a Cabinet meeting, and the Deputy Minister, who would be attending an urgent departmental engagement and a Cabinet committee.

Chairperson on way forward on the Bill

The Chairperson said that when considering the Amendment Bill, it was her considered view that the Committee could not in good conscience adopt the Amendment Bill without having been satisfied that the SAPS had both the capacity and the capability to implement its provisions. The concerns raised in the public submissions were unanimous in questioning the capacity of the SAPS's Forensic Science Laboratories (FSLs), and this echoed the concerns that had been raised by the Committee over the past three years.

The Committee had committed itself to focus on the forensic science division of SAPS since 2019 and would continue to intensify its oversight in the remainder of the sixth parliamentary term. Despite lengthy discussions on the progress made in the FSL environment, the Committee was still not at ease with the issues regarding the costing of the Bill, the funding of the division, the maintenance of machinery and equipment, and the procurement contracts to ensure the timely and effective delivery of forensic consumables.

On top of this, concerns related to the use of minimum force and the possible inclusion of all Schedule Offences remained and needed further unpacking. Although the Committee realised that this Amendment Bill dealt only with already convicted Schedule 8 offenders, the recent proclamation by the President to bring the Act into full operation placed the amendments in a different light, and the Committee needed to look more broadly than simply what was in front of them. The adoption of the Amendment Bill would be completed only once the Committee was satisfied that it could be implemented, this would continue in the next term.

On public participation, the President recently issued a directive that he wanted sight of a report by Parliament on public participation before signing a Bill into law. This was to satisfy himself that public views and concerns were incorporated into the legislation. To comply with this directive, the Committee had to adopt the report, which had been done now, on the public hearings which had been circulated to the Members, before the Committee proceeded with the Bill.

The Chairperson said that this was her summary and her proposed way forward. She invited Members to deliberate on her comments.

Member comments

Mr A Whitfield (DA) said that he did not align himself with the Chairperson’s views. He certainly did not get the impression through the public participation process that there was overwhelming opposition -- it seemed the opposite, as the majority of the submissions supported the Bill and all of the submissions supported the intention of the Bill. The Committee had requested SAPS to come and present and had received additional feedback from the Civilian Secretariat for Police Service (CSPS), which had dealt with the issue of Schedule 1 to 7 offences in respect of the powers of the Executive to promulgate regulations. The Committee had been given a presentation on the DNA backlog and the capacity of SAPS.

He referred to the report that the Committee had just adopted. In the last paragraph, under the item “capacity for DNA analysis and SAPS FSLs,” it stated that the Members had requested clarity on the influx of DNA analysis samples. The SAPS had indicated that the current monthly capacity was 30 000 samples and that the total current influx was at 21 000, so the influx was within their monthly capacity limit. This was an enormous step forward after the last two-and-a-half years of fighting this uphill battle, and the SAPS was currently in a very strong position to deal with this backlog. They had publicly announced that the backlog would be dealt with in the next six months, and there had been funding allocated to this division. This Bill was supported by R78 million, which would provide additional support and capacity.

He said that this Bill had been a long time coming. The Committee had done excellent work, and he believed that there were processes within government, whenever legislation was passed, that needed to catch up. However, SAPS had a head start, and he believed in the FSLs as well as the systems, processes and funding that were in place after the two-and-a-half-year battle. Delaying this Bill any further would be a gross miscarriage of justice. He simply could not support the proposed views of the Chairperson.

Ms G Marekwa (ANC) said she thought that the Chairperson had correctly captured the discussions as per the last Committee meeting. The issues that had been raised were for the attention of SAPS, because all the different public submissions had agreed with the Bill in principle, but had also raised issues that could be incorporated into the Bill. SAPS had reported that they were dealing with the capacity, but the Chairperson's proposal was correct, in that the Committee needed to question whether SAPS had incorporated the views of the public submissions into how they were going to deal with those issues.

She did not think that there was opposition to the Bill being passed, but there were areas of concern that needed the attention of SAPS, including issues that the Chairperson had not captured in her input -- for instance, the further decentralisation of the laboratories. Currently, there were only four laboratories in the country, one being the best performing facility in the Western Cape, and the other laboratories being problematic from time to time. The decentralisation of laboratories would not happen overnight, but there needed to be confirmation that the other provinces would also have laboratories. Travel between laboratories in different provinces was costly and delayed the progress of finalising cases. The SAPS report said that they were dealing with the backlog through overtime work. The Committee needed to know how the SAPS were addressing this in the short to medium term.

Mr A Seabi (ANC) agreed with Mr Whitfield that there was no radical opposition to the Bill, except for the concerns that had been raised in the public submissions. He also agreed that the Committee should do nothing to delay the Bill any further. The Committee must also be mindful to ensure that it had closed all the loopholes, to avoid delays in the approval and implementation of the Bill.

He recalled that one of the presenters during the public submissions had said that the Committee should approve the Bill, having made sure that the SAPS had the capacity, and that the Congress of South African Trade Unions (COSATU) had proposed that the Bill be amended to require buccal samples to be collected from all persons convicted and imprisoned, irrespective of which Schedule offences. He said that Adv Sisa Makabeni, Senior State Law Advisor, had advised the Committee on how this Bill was aligned to s36D(1) of the Criminal Procedure Act. Before the Bill went to the President, the Committee needed to ensure that it had satisfied all the concerns so that the President approved the Bill.

He proposed that in the first meeting of the following term, SAPS should be invited to do a thorough presentation to address all the concerns, especially those regarding its capacity to implement the Bill. He said that the concerns that Ms Marekwa had raised about the laboratories were important. Ensuring that the laboratories were functional was part of addressing the concerns regarding the capacity.

Mr A Shaik Emam (NFP) said that the purpose of this Bill was to compel the SAPS to implement the recommendations in terms of the Act. He agreed that this Bill was long overdue, but he questioned the purpose of passing this Bill if SAPS did not have the capacity to implement it. The Committee had had a lot of commitment from SAPS in the past, to which they had never complied. The Committee understood that SAPS had added pressure and that the acts of criminality were increasing in the country, which was putting greater demand and pressure on the forensic laboratories.

He said that as much as he thought the Committee should be supporting the implementation of this Bill, the Committee needed to be realistic that SAPS did not have the necessary capacity. It was not always about the money, as resources could be made available, but he questioned whether SAPS had the human capacity. The Committee knew about the state of some of the laboratories and that clearing the six-month backlog would not be achieved. SAPS should be given the opportunity to get its house in order.

There was no doubt that almost all of the submissions were in support of the Bill, but time and time again there had been concerns raised by the public and the Committee, and not much had been done about them. He suggested that the SAPS should be given a timeframe to get their house in order so that once the Bill was signed by the President, it could be implemented immediately.

Rev K Meshoe (ACDP) agreed that there was no doubt that all the inputs supported the intention of the Bill, except for the concerns of the capacity. It was a fact that on several occasions the SAPS had not dealt with the issues that were before them, and it was very unfortunate that the Committee could not take their word at face value. The Committee needed to see some progress to be satisfied that implementation would happen once the President had signed the Bill. He questioned how SAPS would deal with the backlog when only two laboratories were functional. Given its experiences with SAPS, the Committee should not only hear about progress but should see progress. SAPS needed to ensure that the other laboratories were also functional. To only hear that SAPS had the capacity was not enough. He agreed with the Members who have proposed that SAPS should first be given a timeframe to deal with the concerns before the Bill was sent to the President.

Mr O Terblanche (DA) said that this was a very sad day in the history of SAPS and this Committee. This legislation was so important and so necessary. The Committee had the responsibility to ensure that it drove this process forward, and if anything was outstanding then it needed to be done. This process had to be finalised as a matter of urgency -- the Committee owed this to the citizens of South Africa.

The Chairperson said that she would like the Members to know that she was not stopping the process of passing the Bill. In fact, she would have wanted this Bill to have been passed already, which was why she drove this process in a manner so that every week the Committee could work on the Bill. The Committee had serious intent, which was why it had focused on this Bill for the entire first quarter of this year. She merely asked that the Committee first tighten all of the loopholes and that in the first meeting of the next term, the Committee could address the concerns, because she did not want the Bill to be referred back to the Committee. If it was referred back, then there would be egg on their faces. She wanted to ensure that when the Bill was taken to Parliament there was no comeback -- she did not want the President to refer the Bill back to the Committee. Right now, she was not convinced that the Committee had covered the areas of concern. She asked that the Committee allow her to work on the Bill during recess. The Committee was in support of the Bill, but she wanted the Committee to first cross the t’s and dot the i’s. She would first consult with the legal advisor of the Presidency to ensure that they were satisfied with the process and then consult with SAPS to ensure that the Committee was satisfied with its timeframes.

Mr Whitfield said that the Chairperson’s support of the Bill was never in doubt. The record would show that the Committee was certainly unanimous in support of the Bill. He explained that when the comment was made that only two laboratories were functional, it created the impression that more laboratories had the capacity to do the DNA analysis. There were laboratories in the Western Cape and Pretoria that were responsible for this process, and therefore there were two laboratories. The issue with the other laboratories was that they did not yet have the capability to process DNA analysis.

The Committee did know for a fact that the laboratory in Port Elizabeth would be up and running by February 2023. There were two types of processes at the laboratories -- one was crime scene analysis, and the other was reference indexing. When the Committee requested information from SAPS, it should get an indication of where the backlog is. This Bill dealt with reference index sampling, but the backlog was not with reference indexing, it was with crime scene analysis. This was a very important distinction if the Committee was to make an informed decision.

This Committee had been provided with reports from the laboratories every month for the last few months. It was frustrating that it appeared that these reports were either not considered or fully digested, but they were available. He recommended that everyone read them to see the leaps and bounds with which the laboratories had been moving and making progress towards reducing the backlog. There would never be no backlog -- and there had never been a zero backlog. The indicator to which SAPS must operate is 80% of DNA samples being analysed within 90 days. The Committee needed to focus on this measurement and understand that realistically there would never be a zero backlog, by virtue of the fact that samples were coming in every single day. He did not see what the legal loopholes were that would result in the Bill being sent back, and he did not think that the President would send the Bill back because of the backlog.

The Chairperson replied that the Committee had consistently sent these monthly reports to the Presidency. The Members had studied the reports and she had asked the Committee’s researcher to give her an analysis and complete summary, including graphs of how the FSLs had improved. The Presidency had set up a team with the private sector to address the matter of the FSLs. The Presidency would not only look at the Bill, but the team that had been set up in the Presidency would also give their views on whether they were happy with the progress made. It was not just a matter of the Members of this Committee having familiarised themselves with the report, and it should not be assumed that Members did not study the reports. The Members have interrogated the reports, as this had been a matter of priority. The Committee had certainly prioritised and familiarised itself with the report, and the political party that she represented had had regular sessions of interrogating and discussing those reports. It was not the correct impression that Members had not familiarised themselves with the reports. She was obliged to ensure that there was consensus with the Presidency’s team. She asked that the Committee allow three or four weeks to cover all the basics, and then take the Bill through Parliament.

Rev Meshoe referred to the Chairperson’s comment and asked that the Committee also get a briefing from the Presidency’s team as to whether they were satisfied with the progress of the Bill so far.

The Chairperson said that she would certainly request a report from the team, but the team reported to the President. She would request that the team give the Committee their views, even if they did not appear before the Committee.

Mr H Shembeni (EFF) said that since there was support for s36D(1) of the Criminal Procedure Act, which already allowed buccal samples to be taken from any person charged or convicted, he did not think that the Bill would be a struggle, except for the capacity of SAPS. He recalled that he had once asked a question regarding what SAPS had done to improve the capacity in its laboratories since they had taken them over from the apartheid era, and seemingly there had been no changes in the capacity and dealing with crime. The SAPS must be in line with what was happening each day. There should be a laboratory in every province. SAPS needed management that considered the policing services that it provides in the communities. He supported the Bill, as it would help to close the cases that were still outstanding.

He recalled that he had asked a question about Operation Dudula, but noticed that the situation was escalating. He had since heard voice messages about people who were regrouping against Operation Dudula. He wanted to know whether SAPS was legitimising Operation Dudula as an organisation, because police officers had been taking instructions from Operation Dudula by going with the movement to carry out their operations and investigations. He questioned what the Minister was doing about those police officers who were following Operation Dudula to do their operations, victimising people and doing stops and searches. The Minister should give the Committee an explanation of what was happening with Operation Dudula. There had been a voice message from Operation Dudula stating that they would intensify their operations and another voice message that had been shared by foreign nationals that said that they would regroup and that they would not allow Operation Dudula to take charge in South Africa and throw them out of this country. He asked where the Committee stood in this situation. He said that he would send a letter to the Minister so that if anything happened the people of South Africa would know that the EFF had questioned this matter.

The Chairperson replied that the matter of Operation Dudula was certainly a priority. She and the Whip (Mr Seabi) would have a meeting with the Minister later today, and one of the priority areas of the meeting would be about Operation Dudula, as well as the FSLs. She would indicate whether the Committee could have an emergency presentation on Operation Dudula before it did the strategic planning session on Friday morning, as it was obvious that this was a matter of urgency.

In the Committee's strategic planning session, the political parties would all be given an opportunity to speak and give input. After all the inputs, the Committee would have an extensive discussion. This would at first not include the SAPS, as she would like the newly appointed National Commissioner to be part of the strategic planning session. Once the new National Commissioner had been appointed, the Committee would have another strategic planning session, and hopefully, by then, Parliament would have a budget for the Committee to meet physically.

Mr Shembeni said that the presentation on Operation Dudula was very important. It would give him something to report back to his political party, as it was a very big concern. Regarding the appointment of the new National Commissioner, he suggested that the Committee should be involved in such appointment processes.

The Chairperson said that according to the Constitution, the process of appointing the National Commissioner lay squarely within the legal prerogative and the ambit of the President. It was not the prerogative of the Minister. The process of appointing the National Commissioner lay with the Presidency.

Ms L Moss (ANC) agreed that the appointment of the President was the constitutional prerogative of the President, but the Members of this Committee could monitor this process by playing its oversight role on whoever the National Commissioner would be.

Mr Shembeni said that if the new National Commissioner had been appointed by Friday, then the Committee should plan to go around with the National Commissioner to ensure that he familiarised himself with all the police stations. It was important that the Committee knew under what conditions the police members were working.

The Chairperson replied that she could not agree to that request. If the new National Commissioner was appointed by Friday, then he should first be given the opportunity to meet with senior management before coming before the Portfolio Committee.

Adoption of minutes

The Committee’s minutes of 18 and 23 March were considered and adopted.

The Committee’s Public Participation Report was also considered and adopted.

Closing Remarks                                                                                                                    

The Chairperson said that she would inform the Members if there were any further developments before Friday.

The meeting was adjourned