ATC220824: Report of the Select Committee on Security and Justice on the Criminal Law (Forensic Procedures) Amendment Bill [B 25 - 2021] (National Assembly – sec 75), dated 24 August 2022

General : Section 36D(1) Criminal Law (Forensic Procedures) Amendment Act, 2013 (Act No. 37 of 2013),

Action Society

On 1 December 2014, the President of the Republic of South Africa, by Proclamation 89 of 2014, fixed 31 January 2015 as the date on which the Forensic Procedures Act came into operation. The Presidential Proclamation, however, excluded Section 2 to the extent that it inserts section 36D (1) into the Criminal Procedure Act from operation. As a result, section 36D (1) of the Criminal Procedure Act has never been implemented.

Section 36D (1) provides for the mandatory taking of buccal samples from arrested, charged or convicted persons in respect of certain offences listed in Schedule 8.

We are concerned that in the seven years since then, the exception has not been removed and that Section 36D (1) remains inoperable. In other words, it is still not mandatory for the South African Police Services to take buccal samples in the appropriate circumstances, notwithstanding that this is a legislated procedural requirement.

We consider this a serious impediment to the proper implementation and population of the National Forensic DNA Database of South Africa (NFDD), and it calls upon you to implement section 36D (1) of the Criminal Procedure Act forthwith by proclaiming that it should come into operation immediately.

Our call is in accordance with the recommendations of the National Forensic Oversight and Ethics Board’s Handover Report of April 2020, which recommended that section 36D (1) be brought into operation.

Without a mandatory requirement that buccal samples be taken in the defined circumstances, the NFDD will never achieve its full potential in the fight against crime, and the citizens of South Africa will continue to suffer the consequences[2].

General

COSATU

Supports the Bill.

South Africa’s existing forensic capacity is severely limited.  This is due to insufficient buccal and other forensic data but also to being chronically underfunded.  This has a dire impact on the capacity of the SAPS to determine and apprehend countless criminals.

Criminals who could have been apprehended and prevented from committing further offences, are not, frequently because SAPS lacks a database and the law does not currently empower them to collect such data.

The Bill mandates the collecting of buccal samples to persons convicted and imprisoned for Schedule 8 offences.  The collecting of buccal samples must become standard for all persons arrested, convicted and imprisoned by SAPS and DCS.  This must be in line with existing procedures to collect the fingerprints, photographs and identity information of persons arrested for any offence.  Physically identifying marks on such persons are also recorded, e.g. scars, tattoos as well as physical, gender and racial descriptions. These are done to record an accurate description of the person.  They are also done to build SAPS’ forensic and intelligence database of persons who have been arrested for criminal offences. They are done with the intention of capacitating SAPS and upon the well-established evidence that criminals are in most cases repeat offenders. 

No distinction must be made for the scheduled offence the person is accused of having committed. Again, this is based upon well-established evidence that persons who commit one type of criminal offence are very likely to commit numerous other types.

It is also based upon the fact that some serious criminal offences are often very difficult to gather sufficient evidence, but that sufficient evidence could be more easily gathered for less serious crimes against the same accused.  E.g. the infamous gang leader Al Capone was convicted of tax offences not murder.

The gathering of such forensic information is not linked to a person’s criminal conviction, e.g. it is done upon arrest and being charged.  This helps SAPS to ascertain the accused’s innocence or guilt and if they are linked to other crimes.

The objectives of the Bill are correct and progressive.  They have the potential of capacitating the SAPS, reducing crime and protecting the rights of ordinary citizens.

A fully functional forensic database will help prevent the conviction of innocent persons based upon circumstantial evidence.  In the United States, countless persons, largely African American, have been found to be innocent many years later as forensic and specifically DNA evidence has become available.  A well populated forensic database can help minimise such injustices.

COSATU believes that the collecting of buccal samples must be done when persons are arrested and charged for all criminal offences in line with how the taking of fingerprints, photos and other forensic information is done.  This must be applied to all persons, irrespective of the Scheduled Offence they are accused of.

In order to ensure the Bill can be implemented, government needs to ensure that the SAPS and DCS are provided with the necessary resources to collect buccal samples from all persons arrested, convicted or imprisoned for all offences.

Clause 2

Section 7

Section 7(7) of the Forensic Procedures Act requires taking buccal samples from Convicted Offenders in prison. It provides that “the National Commissioner of the South African police service must, with the assistance of the National Commissioner of Correctional Services, from the date of commencement of this section, ensure that a buccal sample is taken within two years of any person serving a sentence of imprisonment in respect of any offence listed in Schedule 8 to the Criminal Procedure Act – (a) before the release of the person if the buccal sample has not already been taken upon his or her arrest; or (b) who is released before their sentence is completed either on parole or under correctional supervision by a court”.

Action Society

We understand that the prescribed period of two years was imposed to prevent delays in the implementation of the section. But unfortunately, the requirements of the section were not fulfilled during the specified period, and buccal samples were not taken from all persons serving sentences of imprisonment in respect of the scheduled offences. The Convicted Offender Index was, therefore, never fully populated within the prescribed period. The failure to take the buccal samples within the original two-year period has given rise to a situation where certain convicted offenders refuse to provide buccal samples. They justify their refusal by relying on the expiry of the two years referred to above. As a result, Convicted Offenders, who constitute the most important contributors to an effective NFDD, have not been appropriately sampled. To make matters worse, members of this essential category of individuals are being released from prison without buccal samples having been provided. Therefore, they are not included in the NFDD.

To resolve this difficulty in mind, the Police Ministry produced a Draft Bill entitled the Criminal Law (Forensic Procedures) Amendment Bill of 2018 (the “Amendment Bill”). However, to emphasise the extent of the delay that has occurred already, we point out that the Draft Bill was prepared in 2018 and has yet to be placed before Parliament.

The Amendment Bill is aimed at amending section 7 of the Forensic Procedures Act to avoid the opportunistic reliance by Convicted Offenders on the apparent limit of the two-year period for taking buccal samples from the prison population to refuse to cooperate. The Amendment Bill also provides an essential mechanism for the relevant authorities to obtain buccal samples where cooperation is refused.

We disagree that there is, in fact, such a time limitation on the powers of the state to take buccal samples from Convicted Offenders when the Forensic Procedures Act is considered as a whole, but this is unfortunately how the Act is being implemented on the ground. The result is that Convicted Offenders are being released without being required to provide buccal samples for the NFDD.

Action Society supports the Draft Bill, but notwithstanding numerous attempts by the Standing Committee, the National Forensic Oversight and Ethics Board and others, the Minister of Police has failed or refused to place the Draft Bill before Parliament for the past three years.

We consider this a serious dereliction of duty by the Minister of Police as it runs counter to his obligation to implement the provisions of the Criminal Law (Forensic Procedures) Amendment Act of 2013 and to act in accordance with the best interests of the citizens of this country. Accordingly, Action Society requires this dereliction of duty to be remedied forthwith. It is simply unacceptable that this critical aspect of the NFDD is being neglected to the detriment of the citizens of South Africa.

In summary, Action Society requires you to take the following steps as a matter of urgency:

• to issue a proclamation implementing section 36D(1) of the Criminal Procedure Act No. 51 of 1977; and
• to ensure that the Draft Bill is placed before Parliament for consideration.