Criminal Law (Forensic Procedure) Amendment Bill: proposed amendments

Ad Hoc Committee on Criminal Law (Forensic Procedures) Amendment Bill

11 February 2009
Chairperson: Ms M Sotyu (ANC)
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Meeting Summary

The Committee reviewed the drafting of the written amendments verbally agreed to in the 10 February meeting, where the Department had presented its response to the public submissions.

Consequential amendments for the terms ‘authorised persons’, ‘body prints’, and legitimate government purposes were presented and agreed upon.

It was decided that Section 36B(8), which dealt with storing reference samples, would be amended so that police official ‘may’ keep them, rather than ‘must’ keep them.  This was because it was neither necessary nor feasible to store all the reference samples. However, crime scene samples had to be stored. It was decided that Section 36B, with the exception of subsection 8, would retain the
mandatory wording of ‘must’ and encompass a phased-in approach with target dates.

Regarding Section 15B of Chapter 5A, which dealt with enforcement procedures for using a biometric device, it was decided to obtain comparative studies on the procedures. Officers would also be required to clearly explain to the public their rights on the matter. The request that the term ‘in consultation with the Minister’ be removed from Section 15C, which dealt with national instruction, was denied.

The Chairperson announced that an extension for the ad hoc committee would be requested because there were still many issues to get through. The Committee would request a meeting with SAPS for an implementation plan, and it was decided to review all the submissions and to submit a progress report. For efficiency purposes, the next meeting would be an extended meeting, which would include the Portfolio Committee on Safety and Security.


Meeting report

Ms M Sotyu (ANC) welcomed everyone and dealt with preliminary matters. She asked Dr Louw to begin her presentation.

Dr Lirette Louw,
Senior State Law Adviser and drafter of the Bill, explained that the working draft of the Bill distributed incorporated the amendments agreed to by the Committee in the previous meeting. She noted that the clause about the ethics group had not been completed but would be for the next meeting. She took the Committee through the changes:

Clause 2, which amends sections 36A, 36B, 36C

Section 36A: Definitions Clause
Dr Louw began with references to the term ‘authorised persons’ and said that she had inserted references to the specific persons that were being referred to throughout the Bill, as had been proposed by the Committee. This was a consequential amendment and had been changed in the relevant clauses.

With regard to ‘bodyprints’, Dr Louw noted that ‘knee’ and ‘arm’ were included in the list as recommended by the South African Police Service (SAPS).

She explained that the legitimate government purposes listed in the Bill were extended to include ‘missing persons’, ‘unidentified human remains’ and ‘identification of alleged offender,’ as suggested by the members and to keep it consistent with the SAPS Act. She highlighted that this was also a consequential amendment and read out the amended version of ‘speculative searches’ reflecting those amendments. She explained that it would limit speculative searches against the database to the Forensic Service unit of the police.

Ms F Chohan-Kota (ANC) agreed that the inclusion of knee and arm was appropriate, but suggested that elbow should also be included. There was agreement by the Committee.

Section 36B
Dr Louw pointed out the amendments made to 36B(1)(a)(iv) and (b)(v), which were to be read with 36B(7). The effect was the inclusion of persons sentenced to correctional supervision, and applied retrospectively to people serving time or released on parole irrespective of the fact that conviction was prior to commencement of the section. This would result in the section not being as open ended as meaning to any persons sentenced, but rather limited only to specific categories.

Ms Sotyu wanted clarity on authorised persons, specifically the term ‘must cause such prints to be taken’.

Mr Geldenhuys stated that this was the existing position, but said he had no difficulty in removing the term.

Ms Sotyu replied that she wanted it removed, because it would authorise another person other than the officer.

Ms Chohan-Kota queried whether any officer would take it or a trained person other than an officer.

Ms Sotyu agreed they must be trained, but emphasised it must be taken by an officer.

Dr Louw then read out the amendments to 36B(3), (6) and (7), which were agreed to by the Committee.

Commissioner Geldenhys contended that 36B(8)was not necessary because the information would be stored on the database and that if there were a hit, another sample would be taken to compare and confirm. He argued that to retain all the samples would require huge storage efforts, as there would be over a million samples a year.

Ms A Van Wyk (ANC) also questioned the necessity and feasibility of keeping all the samples.

Ms Sotyu required that the different police representatives must agree.

Mr Du Toit, in response, agreed with Mr Geldenhys and said that there was no need to keep reference samples, only crime scene samples.

The Committee unanimously agreed to this approach.

Ms Chohan-Kota pointed out that this would not pertain to unidentified or missing persons and that this would need to be addressed. She also suggested rather changing the wording to ‘may’ keep the sample, so that there would be an option, but emphasised that the profiles must be kept.

Mr Geldenhuys agreed but clarified that once the information was on the database, it could be used for unidentified and missing persons if that information was on the database. He also raised the issue that it would take time to be in a position to carry out the section as directed, and therefore suggested changing the mandatory term of ‘must’ to the directory ‘may’, so that the section can immediately be utilised when passed. The Committee adopted this approach.

Ms Van Wyk stated that while she understood the reasoning, she believed inserting ‘may’ would not solve the problem because it would be too open-ended. She acknowledged that it could not be achieved immediately but suggested inserting a rider, which would encompass a phased in approach with target dates.
The Committee agreed.

Ms Chohan-Kota drew attention to Constitutional challenges, especially equality challenges where some samples would be taken while others would not be due to capacity problems. She went on to emphasise that certainty is important and that the wording has to be a ‘must’ with target dates.

Ms Van Wyk made the point that high-profile cases get the resources, and further argued that the wording has be a ‘must’ with a phased in approach and target dates so that it would be a budget priority.

Dr Louw agreed and acknowledged that it needed to be passed so treasury would make it a budget priority.

Section 36C
Dr Louw went over the amendments, which were agreed to by the Committee.

Clause 3, which amends Section 37
Dr Louw went over the amendments to the section.

Ms Sotyu clarified that ‘may cause to be taken’ would be changed as previously discussed.

Ms Chohan-Kota then questioned the inclusion of the term ‘fingerprints’.
Dr Louw replied that she had believed that the inclusion was agreed to and that there would be no harm if it were kept.

Dr Chohan-Kota responded that she was worried that there was a contradiction compared to the previous provision and asked what this section was meant to achieve.

Dr Louw explained that the original provision in CPA applied to body-prints such as handwriting and voice-samples.

Ms Chohan-Kota asked if this point could rather be reserved, which was agreed to by the Committee

Clause 4
Dr Louw pointed out that there were no submissions by the Committee for the section, but that there was a request by the police to include the word ‘collection’ in subsection (8)(a). This was so that the police could make an affidavit, which would serve as prima-facie proof for efficiency purpose.
The Committee did not object to the request.

Clause 6, which inserts Chapter 5A and 5B

Section 15A
Dr Louw highlighted to the Committee that the term ‘his or her delegate’ was removed when referring to the National Commissioner because the SAPS Act already made provision for delegation.

Section 15B
Mr Geldenhys explained what the procedure would be in practice to determine wanted persons in terms of the provision. The biometric device would be used in roadblocks and crime prevention efforts. It would flag persons, who could then be investigated. He asserted that this tool was very effective, important and needed legislative authority. He explained that it needed legislative intervention because currently the request to provide fingerprints needed consent, so the clause would be utilised where consent was refused. It would not be invasive and would not invade privacy. Further, another problem the clause would help to address is that once a fingerprint is scanned it would take time to process it, so the clause would oblige a person to stay in attendance for a period of twenty minutes. The clause would provide enforcement of taking the print and remaining in attendance by making refusal for either of these two requests an offence, which would allow arrest and detention for a period of twelve hours.

Ms Chohan-Kota requested clarity on the term ‘wanted by police’ and requested that the provision must make reference to the specified database. She submitted that the issue of remaining in attendance should not be a problem if it is for a short period. She further asserted that obliging someone to provide his or her fingerprint should also not be a problem, arguing there is no right to not to be detected of a crime. She did however highlight that this point must be considered again.

Ms Sotyu agreed and left it to the members to think over.

Ms C Johnson (ANC) asked for clarity on the procedure where one refuses to remain in attendance.

Mr Geldenhys replied that currently they have to allow the persons to leave. He admitted however that in practice the police used stalling tactics. For example, they would ask for identification and address details, and by the time this was completed, the information would be processed.

Ms Van Wyk brought it to the attention of the Committee that allowing arrests must be decided in context of the situation of jail cells in South Africa. She emphasised the case of an innocent person and human rights considerations, and asked whether it could be drafted in a less heavy-handed manner.

Mr Geldenhys responded that the attendance period was just twenty minutes and only if it were refused then there would be an arrest.

Ms Chohan-Kota requested comparative studies on how other countries deal with the procedure.
The Committee agreed.

Ms Johnson emphasised that the officers, when employing the clause, must specify to the public that their obligation is only twenty minutes so that it does not turn into hours.

Section 15C
Dr Louw read out the amendments in section 15(c)(4), and the Committee indicated they were satisfied.

Mr Geldenhys requested however that the term ‘in consultation with the Minister’ be removed because he believed that the instructions may conflict with SAPS act and that the instructions involved operational procedures.

Ms Sotyu did not agree and stated that parliament was comfortable with the Minister being involved.

Ms Chohan-Kota queried who would be financially and politically liable.

Ms Van Wyk argued that it does in some ways impact privacy so believed the Minister must be involved.

Ms Johnson agreed because the minister would be political liable.

Mr Geldenhys replied that national instruction does not give rise to rights to the public so there would be no question of civil claims in respect actions contrary to the instructions.

Ms Sotyu declared that the request was denied.

Chapter 5B
Dr Louw read out the amendments to sections 15D, 15E, 15F, 15G(3), 15H, 15I, 15J, 15K (1) and (3).

Ms Chohan-Kota questioned the need for s 15K(3).

Dr Louw replied it was to have database before hand fro elimination purposes.

Ms Chohan-Kota argued that the wording could not only be ‘for elimination purposes’ and that it must also be for investigative purposes.

The Committee agreed that this needed to be addressed.

Ms Chohan-Kota also questioned the voluntary aspect and asserted that providing samples must be mandatory

Dr Louw read out the amendments to sections 15L, 15M and 15N. She also indicated that she would make the consequential amendments discussed earlier to section 15O.

Mr Du toit enquired whether the time frame for section 15O(1)(d) could be changed from a monthly basis to a quarterly basis consistent with their normal reporting procedures.

The Committee agreed to the request.

Dr Louw went over the amendment to section 15P, which dealt with intentional corruption of the digital information.

Commissioner Geldenhys however pointed out that it was already addressed in the SAP Act so it was agreed to flag this point.

Dr Louw discussed the language changes and insertion of time periods in section 15Q.

Clause 7, 8 and 9
Dr Louw went over the consequential amendments for clauses 7, 8 and 10, which was agreed to by the Committee.

Ms Chohan-Kota raised the need for resolutions that included concerns that came up in public participation and Committee discussions, such as considering independent agencies to prevent corruption and the need for a starting point for the national database. She also suggested requiring SAPS to table its implementation plan and give feedback on progress within six months.

Ms Van Wyk agreed and further asked for a follow up on the human rights commission report regarding children and the eighteen year old issue.

Ms Sotyu announced that she would ask for an extension to the life of the Committee because there were still many issues to get through. She requested a meeting with SAPS for an implementation plan, and to review all the submissions and to make a progress report. She also stated that the next meeting would be an extended meeting, which would include the Portfolio Committee on Safety and Security.

Meeting adjourned


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