Criminal Law (Forensics Procedures) Amendment "DNA" Bill: draft of Committee's proposed changes

Meeting report

Reading from the 24 July revised draft version of the Bill, the Chief Director: Legal Services at the South African Police Service (SAPS), Major General Philip Jacobs read out the first insertion to the Bill.

Chapter 5B - Establishment, administration and maintenance of National Forensic DNA Database of South Africa
Clause 15E - Interpretation
Gen Jacobs read the insertions to Clause 15E.

Ms D Kohler-Barnard (DA) said she was trying to recall what the Committee was training had been organised for Correctional Services.

The Chairperson reminded her that the Committee had agreed in its last meeting that Correctional Services was not going to be allowed to take the DNA samples and that SAPS would take the samples even during the transitional arrangements. It was clear from the presentation by the Correctional Services that they did not have the capacity to deal with samples. Correctional Services came into play during the retrospective capturing of DNA for current Correctional Services inmates during the transitional period but not thereafter.

Gen Jacobs continued reading the changes as they appeared in the revised draft Bill.

Mr M George (COPE) said that in terms of the crime scene samples, the definition was not different from that of bodily samples.

Ms Kohler-Barnard said on familial searching, the definition had left out a section - looking at a sample of a missing person or obtained from family members of a missing person. In reference to a crime scene, a missing person was not necessarily involved in a crime scene.

Ms M Molebatsi (ANC) asked what the difference was between samples “from a nail” and “under a nail”.

The Chairperson said that there was a difference of opinion in the Committee on whether familial searches should be used for crime purposes. The ANC was not in support of the use of familial searches because there were human rights issues around the use but she was of the opinion that the definition of familial searches in the Bill had to be re-written.

Gen Jacobs replied on familial searches, saying SAPS had tried to confine it to missing persons. The reason it had to be linked to crime samples was that there were instances where someone was missing and only the body was found with no identification. In such a case, the DNA from the crime scene would have to be compared with familial DNA. There could be instances where crime scene sample DNA could be identical to that of a family which has reported a person missing and that was an instance where the crime scene sample was relevant.

The Chairperson said that the Committee would take another round of questions and discussion on the issue of familial searches at a later stage.

Gen Jacobs answered the other question about crime scene samples taken from the nail or under the nail of a person, by giving the example of a crime scene where someone who had been poisoned. In such a case, some of the poison deposits in the nail and a clipping of the nail itself could serve as such a sample.

On the difference between bodily samples and crime scene samples, Gen Jacobs said crime scene samples were taken at the crime scene from the body of a person who was deceased while bodily samples were normally taken from a living person. This was the basic difference between the two kinds of samples although there were instances where samples taken from a dead person could be considered as bodily samples.

Maj-Gen Adeline Shezi, Head of Quality Management at SAPS Forensic Department, said that the issue of familial searches had to be understood within the context of the qualification in the NFDD. Commissioner Shezi read an excerpt which stated the qualification.

Ms Kohler-Barnard said that when the Chairperson said that a missing person's DNA was run through the criminal database in an attempt to identify the person, it was assumed and predetermined that the missing person was not a criminal. So she thought that running someone through the various databases had to be done as it was not good to predetermine that someone was not a criminal. There was no risk of human rights abuses with familial searches. It was a tool which was used globally and it was not advisable for South Africa to shut the door on such a potentially good tool. What possible abuse of human rights could take place? The questioning of anybody was acceptable in any democracy.

The Chairperson reminded members about the meeting in the United Kingdom with the Ethical Board where they clearly indicated to the Committee that familial searches in terms of crimes in the UK was problematic as it targeted according to racial lines. That fact was made quite clear in the presentation to the Committee. There had been heated discussions on this matter even in the UK but the fact of the matter was that the ANC could not support general familial searches in South Africa. Also it was clear from the UK that the success rate of familial searches was exaggerated and it was not that huge. The risk in terms of human rights abuse and targeting of families was a bigger issue than the actual success.

Gen Jacobs said that when SAPS looked at familial searches, it started with the definitions in some of the countries and in line with the recommendations of the Portfolio Committee they had tried to narrow it down to the issue of unidentified bodies and missing persons. He agreed with Commissioner Shezi that including the qualification of indexes would clarify the comparisons. The first definition comparison was with that used in the United States of America which was very wide. It was important to note that the definition and use of familial searches varied from country to country and in the UK there were many criticisms about familial searches. In the USA it differed from state to state. As the Chairperson said, it was very important to consider the success of familial searches against the risks of violating fundamental human rights and the issue of race.

Ms Kohler-Barnard asked if there was DNA at a crime scene and it was run through the various databases, how did race come into that. How could the use of familial searches lead to the targeting of a particular race? It was unidentified DNA found at a crime scene. She did not see how the use of familial searches could possibly be linked to racial bias as it was a scientific process. She asked SAPS to honestly answer if the use of familial searches would help them in their job.

The Chairperson remarked that she was not the one who was personally against the use of familial searches. The Board of Ethics in the UK was not in favour of familial searches because in the UK what happened was that persons committed crimes but their families ended up becoming targets. In the UK what ended up happening was that people of African origin were the main targets and that was the reality. Looking at the research, the resources required to do familial searches was extremely high and there was the need for specialized professionals. The Committee had seen what South Africa would lose in terms of resources if it wanted to implement the use of familial searches. The country needed to prioritise especially during the transitional phase. The fact of the matter was that the Committee could agree to disagree but she wanted to be clear about the issue so she would ask the Committee Researchers to do a paper on familial searches to look at the pros and cons and international best practice. That was the best way to deal with the issue and the Committee would take a decision based on what was presented by the researchers.

The Chairperson asked if Commissioner Shezi had anything to add on the criminal investigation dimension to familial searches.

Commissioner Shezi said that in terms of investigations, familial searches exposed and linked mostly parent and offspring relationship. In investigations, parents could link their children and children could link the parents to crimes. What happened was that if the investigation was targeting 16 areas of the DNA, they would most likely be common in at least 10 of those areas. This means that the use of familial searches could lead to the discovery of undisclosed children and this was very disruptive especially when the police officers concerned had not mastered how to handle such a situation. During the study tour to the House of Commons in London, the police officers said that the anger and bitterness of people finding out their real parents or siblings was not something which could be ignored. These unintended consequences were one of the major challenges of the use of familial searches. However, there were advantages to using familial searches in the investigation of complex cases, as it could limit the category of people and this could provide a good lead to the solving of cases. Just as familial searches could be used to solve major cases, it could open up other issues and unintended consequences and that was where the human rights concerns had to be considered.

The Chairperson said that the Committee was not closing the matter but the research paper from the Committee Researchers would shed more light and guide the Committee in its decision.

Mr George asked if Commissioner Shezi was saying that the use of familial searches required the training of special officials and experts. 

Commissioner Shezi replied that special training was required as the investigator had to understand basic human rights, constitutional rights, parent-children relationships and the other factors which could result from a normal investigation. The investigators had to understand the complexities of DNA investigation and the dynamics and patterns of crime in the country. There were many social aspects which also had to be considered. In other countries, there were many specialized courses for DNA investigation.

The Chairperson said that the Committee would flag the issue for future discussion. She asked Gen Jacobs to proceed with the revised draft insertions.

Section 15E Interpretation
Gen Jacobs read through the definitions in Section 15E in Chapter 5B for forensic DNA analysis, forensic DNA profile, intimate sample, the National Forensic DNA Database of South Africa and volunteer. He said that forensic DNA analysis meant the analysis of sections of the deoxyribonucleic acid of a bodily sample to determine the forensic DNA profile, provided that it did not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the gender. Forensic DNA profile meant the results obtained from forensic DNA analysis on bodily samples taken from a person or a crime scene, providing a unique string of alpha numeric characters to provide identity reference and provided that it did not contain any information on the health or medical condition or any information on the predisposition or physical information of that person other than the sex of that person. Intimate sample meant a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area from the body of a person excluding a buccal sample. Volunteer meant a person who gave his or her informed consent to the taking of an intimate sample or a buccal sample in accordance with section 15K.

The Chairperson proposed a grammatical correction to the definition of intimate samples.

Section 15F and G – Objective of Chapter; and Establishment of National Forensic DNA Database
Gen Jacobs read through these sections.

Mr George asked if it was acceptable that a law was retrospective.

Gen Jacobs replied that the law could not affect the rights of a person retrospectively but it was important to note that using DNA to link a person to a crime was catered for in our present legislation. In that respect, he did not think that the Act could be considered as retrospective. However, he agreed that the normal principle was that a law could not be retrospective.

The Chairperson asked the state law adviser and the parliamentary legal advisers to comment on this.

The State Law Adviser, Mr Sisa Makabeni, said that the important point was that the crimes had already been committed and were already in the statute book so the Act was providing a tool to assist in the investigation of a crime that was already committed and punishable by statute or common law. Such a crime was already outstanding in the books. The current Act was not creating offences but was assisting in the solving of crimes which were already provided for.

The Parliamentary Legal Adviser, Ms Desiree Swartz, said that the general rule was that law makers could not legislate retrospectively but in order to achieve the purpose of the current Act, one of the issues to be looked at was whether it was justifiable to limit a person’s rights retrospectively.

The Chairperson said that in order to be safe, the legal team should find out more about the issue and confirm with the Committee at a later stage.

Ms Kohler-Barnard said that she had just noticed that the Committee was talking about going into the Correctional Services facilities and taking the DNA of inmates to populate the database and possibly solving a number of unsolved crimes. It just struck her that such an act was acting retrospectively as a person in a correctional facility could say that SAPS had no right to do that. What was the situation with fingerprints? It was true that the fingerprints of everyone in prison were taken but it was definitely not done five years after they had gone to prison. Collecting DNA from inmates in Correctional Services facilities was going to be faced with legal challenges.

The Chairperson said that she had no doubt that the decisions to collect the DNA would be challenged by people within Correctional Services facilities as they all became mini-lawyers while they were in jail. That is why it was important for the legal team to come with more research and facts on the issue. The concern was that there were problems in Correctional Services and the integrated justice system, and there was enough suspicion and proof that with the collusion of correctional facility officers, people in prisons were taken out to commit crimes and brought back to prison because nobody was ever going to suspect them. So opposition from such people had to be expected. It was now the responsibility of the legal team to guide the drafting in such a way that there were no loopholes.

Ms Swartz said that in addition to what she had said earlier on, the purpose of the current legislation was to identify people and the people in the Correctional Services had already been identified but what was now going to be done was just an addition to what was already there. In that respect, she was comfortable with the status of the law as it was providing further identification.

Mr George said that he did not think that the problem would come from people within Correctional Services. His worry was with the people who were being investigated. These were people who had not been convicted and there was still going to be the process to prove their guilt. He agreed with the Chairperson that the legal team should prepare for the challenges which could come with the Act.

The Chairperson said that SAPS officials could run the issue by a criminal lawyer to find out what their arguments would be and what parts needed to be tightened. In terms of the establishment of forensic databases and indexes, she asked if SAPS was satisfied that enough indexes had been created.

Commissioner Shezi replied that they could not properly answer the question at this stage unless there was a review of the index as there had been talks about a suspects and an arrestees index. If there was a significant need, then increasing the indexes could be considered. 

The Chairperson said that the Committee had to agree if SAPS could be given the power to add indexes as the need arises or they should return to the Committee. She was of the opinion that SAPS should come back to the Committee if they required additions to the indexes. SAPS had the habit of just changing legislation or adding things to legislation so in the current situation, if there was anything to be added to the Act, SAPS had to come back to the Committee. 

Ms Kohler-Barnard asked what could be done if there was an urgent need for the addition of an index. Did SAPS have to wait for years until the Act was reviewed or was there some way that the Board could have the power to approve the addition of another index?

The Chairperson said that if there was such a need, there was not going to be a review of the entire Bill and they did not have to wait for several years as the Act could be amended. It could be a simple technical amended which could come to Parliament and be dealt with in half an hour. It was important to note that Parliament did not have to outsource its responsibility.

Mr George said that he agreed with the Chairperson because the experience in the last 20 years was that any changes made by the police have taken policing backwards instead of forward. Furthermore, Parliament had to carry out is responsibility of law making.

The Chairperson asked where suspects would be placed in the indexes.

Commissioner Shezi replied that suspects would be placed in a sub-index within the volunteer index.

The Chairperson said that she was not comfortable with SAPS creating sub-indexes which were not specified in the Act. This could lead to the arbitrary creation of sub-indexes and one day there could be a sub-index for politicians.

Commissioner Shezi said that they would look at rephrasing the section.

On 15G(4), Gen Jacobs said that nothing in this Chapter affected the use and storage of such forensic DNA profiles derived from samples taken in accordance with this Act for comparative searches against forensic DNA profiles derived prior to the coming into operation of the Act; and the use as evidence in a court of law of the results of the comparative searches referred to in paragraph (a). This was a new insertion to the Bill.

The Chairperson proposed some formatting and layout corrections to the revised draft of the Bill.

Gen Jabobs read out 15G(8).

The Chairperson asked what the use of sub-section 8 was.

Gen Jacobs replied that the provisions of this Chapter did not affect any proceedings instituted and pending in a court of law immediately before the date of commencement of the Chapter and such proceedings had to be disposed of in the court in question as if this Chapter had not been passed. Proceedings contemplated in subsection (8) had to be regarded as having been pending if the person concerned had pleaded to the charge in question and the DNA profiles which were kept and managed before this Chapter came into operation were to be maintained by the authorised officer until the system solution to support the NFDD was operational, which must be within one year from the date of the coming into operation of this Chapter.

The Chairperson said that she was confused about the use of sub-section 8.

Mr George said that the officials had to outline the implications of the sub-section and check if it did not contradict some other sub-sections.

The Chairperson agreed with Mr George.

Ms Swartz said that in this situation, it was important to look at evidence brought up during the investigation and that this Act did not affect the quality of the evidence but from a drafting perspective, 15G(8) was not really needed because when the evidence was gathered, the Act was not operational. From a drafting perspective, sub-section 8 could be deleted because it did not add any value to the Bill.

The Chairperson said that if that was the case then why was there the collection of DNA samples from Correctional Services inmates. This now raised again the issue of the retrospective implementation of the Act.

Ms Swartz said that her argument was that this Act dealt with the identification of people already in the system. Sub-section 8 was relating to the value of evidence before a court of law which could be disputed.

Mr George proposed that since there were elements of contradiction in the sub-section, the SAPS team should go back and look at the draft again. The Committee could not afford to make errors as the Bill was a very important one. SAPS had included the sub-section but the Parliamentary Legal Adviser was of the opinion that the sub-section was not relevant.

The Chairperson said that the legal team in reconsidering the sub-section should not only look at the particular issue but the broader issues related to the section. 

Clause 15H – Crime Scene Index
The Crime Scene Index had to contain the relevant forensic DNA profiles, derived by means of DNA analysis, from bodily samples that were found and collected, including at a crime scene; at any place where an offence was or is reasonably suspected of having been committed; on or in the body of the victim or suspect which may be used to identify DNA left by that person who was in contact with that person during the commission of the offence; or on anything worn or carried by the victim or suspect at the time when an offence was, or is reasonably suspected of having been committed. The authorised officer must ensure the safe and secure storage of crime scene samples, which samples must be kept indefinitely.

The Chairperson asked Commissioner Shezi to confirm the use of bodily samples in section 15I. She asked if it was correct in terms of the adopted definition or not.

Commissioner Shezi said that from the definition in the crime scene index, the buccal sample would not qualify as it was not a crime scene index. Perhaps there was need to review the wording of the section.

The Chairperson said that in that instance, all that had to be done was to remove the word “bodily” and only allow the word “samples”.

Clause 15I – Arrestee Index
Gen Jacobs read the insertions in section 15I relating to the arrestee index. 

Mr George said that he thought that an arrestee in South Africa could have their case waiting for many years.

The Chairperson said that Mr George was not reading the section properly as it said that ”three years after the following had happened”. The expungment of the DNA could happen only three years after the case was completed and the person had been discharged. It was not talking about three years since the DNA was taken. There was a contradiction between the three months since the DNA was taken and the three years and she wanted a motivation from SAPS why it was that way.

Commissioner Shezi replied that in the previous discussions, the drafters went with the three years irrespective of the acquittal or the decision not to prosecute for the reason of processing the data samples and loading them into the database and the frequencies of the re-arrests of the persons. There were instances where a person was re-arrested several times during a case because the investigations were taking different turns. If the DNA was quickly expunged, there would be high costs in the profiling of individuals who were re-arrested. Within the three-year period, the use of the DNA sample would not have an impact on the person’s criminal record because it was not information which could disadvantage a person. 

The Chairperson said that Commissioner Shezi did not understand what she was saying. She was speaking about arrestees and not convicted persons and the point that Correctional Services made in the last meeting was that it was ok to keep the DNA profiles of re-offenders.

Mr George said that he understood the question and rationale for three years. In a situation where someone committed a crime and was acquitted but still possessed the traits and ability to commit such a crime again, why was there a rush to expunge the DNA profile of such a person. It could be good to give the police an opportunity to monitor the convicts and arrestees for a period of three years. The three year period was appropriate.

The Chairperson said that Mr George did not understand the whole issue. According to the Bill, the period of expungement for arrestees was three years while for acquitted persons it was three months.

Commissioner Shezi said that both arrestees and acquitted people were likely re-offenders but arrestees were more likely to commit crimes than acquitted persons. This section of the Bill was intended to assist detectives in their work and to ascertain that somebody was a criminal and had a history of getting away with crime. If within the three year period, the person did not commit another crime, then the persons profile would be expunged or eliminated. Short periods for expungement would cost the state a lot of resources in the re-processing of profiles.

Gen Jacobs said that this was one of the legal issues in the Bill and SAPS was sitting with international legislation saying that certain types of samples or profiles had to be removed. The only question to worry about was the constitutionality of the provision and how long would it practically take to remove the samples. He did not have a lot of sympathy for recidivism but from a practical point of view, the questions of removing it could not be avoided.

The Chairperson said that there was international best practice on the matter. The last time the Committee asked SAPS, they said it would take about 18 months to practically remove the profile. That was fair but what concerned her was that there was no principled argument. When someone was acquitted, it was irrelevant whether the person would commit the crime again or not. She asked if members would like it if their DNA profiles were to stay with the police for three years after the courts had declared that they were not guilty.

Mr George replied that it was for that same reason that he used the word 'acquitted'. If the police had found that there was enough evidence to take somebody to court and the matter went through the court process, it was better to err on the side of caution to keep the DNA profiles for a good period of time. Another thing which had to be considered was the number of people who were expunged daily and how practical was it for all these profiles to be expunged within three months.

The Chairperson said that she wanted the issue to be considered on principle and both the Members and the officials were not doing that. They were arguing on a weakness and the Committee could not legislate for weaknesses. It was not correct to do that. When somebody was acquitted, they were declared free by a court of law. You could not differentiate between one case and another whether on an issue of technicalities or merit. She was not against what they were saying but her point was that it should be argued on a principle basis and not on any other basis such as the weaknesses of SAPS to investigate a case properly.

Commissioner Shezi referred to the court case where the judge took the decision, saying no time frame was instituted as to when the profiles should be expunged. There were a number of instances to consider in South Africa. The court would want to know the practical definitive timeframe for an expungement. The choice of the timeframe was informed by the need to respect the human and constitutional rights of the people concerned. Three years was reasonable.

The Chairperson said that the problem was that the argument was started on the wrong foot. The initial period of three months was put in by SAPS and not the Committee. She asked what a practical and feasible timeframe was. Three years or three months?

Commissioner Shezi said that three years was practical.

The Chairperson said that the Committee would agree to the proposal but she would wait for when any of them was arrested and their profiles had to stay on the database for three years even after they had been acquitted. She asked Gen Jacobs to continue with the reading of the draft.

Clause 15J – Convicted Offender Index
In reading section 15J on convicted offender index, Gen Jacobs told the Committee that the Convicted Offender Index had to contain forensic DNA profiles, derived by means of forensic DNA analysis, from a bodily sample that was entered into the Arrestee Index, but an arrestee had subsequent to the entering of his or her forensic DNA profile on the Arrestee Index, been convicted of an offence; or that was taken from a person convicted of an offence either before or after the coming into operation of this Chapter. Upon the conviction of a child, the child’s forensic DNA profile had to be retained on a database referred to in this Chapter, subject to the provisions relating to expungement of a conviction or sentence of a child as provided for in section 87 of the Child Justice Act, 2008 (Act No. 75 of 2008). The forensic DNA profile of a convicted offender who had been pardoned in terms of section 84(2)(j) of the Constitution or whose criminal record had been expunged in terms of sections 271A to 271D of the Criminal Procedure Act, 1977, had to be removed by the authorised officer from the Convicted Offender Index within 30 days of being notified of the pardon or expungement by the Director-General: Justice and Constitutional Development. In such a case, the Clerk of the Court or Registrar of the High Court must notify the authorised officer of an acquittal, conviction, setting aside or finding of a preliminary investigation within 30 days from the date of the verdict or outcome of the matter and in respect of a decision not to prosecute, the Prosecutor who made the decision must notify the authorised officer within 30 days from the date of the decision.

The Chairperson said that she was enjoying the proceedings as SAPS officials wanted to use the Bill to treat an arrestee better than someone who had been acquitted.

Mr George said that he did not understand the relevance of the sub-section which said that in respect of a decision not to prosecute, the prosecutor who made the decision must notify the authorised officer within 30 days from the date of the decision. He was not comfortable with the issue of 30 days as he was concerned about capacity within SAPS.

Commissioner Shezi said that the convicted offenders profile index remained permanent in the database. During the public hearings, there was a lot of input from the legal fraternity as to why there were limitations.

The Chairperson said that the question which had to be answered was how long it would take to expunge a criminal record. SAPS could do research for a better answer and revert to the Committee on that.

Commissioner Shezi said that the 30 days referred to by Mr George was not about expungement. It was about the prosecutor notifying the authorised officer about the acquittal.

The Chairperson said that she was concerned about the inconsistencies in the expungement periods in the different indexes.

Ms Kohler-Barnard proposed that what was required was a report to the Committee which gave an exact timeline in relation to every area where expungement was proposed. There was a need to see exact timelines and how much capacity was required to do the expungments.

The Chairperson said that this was exactly what she had been asking all along - how much time was required. if the issue was not well handled, SAPS would end up populating the criminal database with the profiles of innocent people and the Committee could not allow that to happen.

Mr George said that Commissioner Shezi had to do what Ms Kohler-Barnard was saying by giving the Committee clear timeframes and indications as to capacity. If this matter was not handled with care, it could open the government to a lot of litigation.

The Chairperson said that she was now instructing the officials from SAPS to revert to the Committee with the timeframes which was informed by practical principles.

Clause 15K – Volunteer Index
Gen Jacobs said that the Volunteer Index had to contain forensic DNA profiles from a bodily sample taken from a person with his or her informed consent. If the volunteer was a child, a sample may only be taken for the purposes of paragraph (a), with the informed consent of the child’s parent or guardian. For the purposes of this section, informed consent meant that the volunteer agreed, in writing, to the taking of a buccal sample, after a police official had informed him or her —
(a)        of the manner in which the buccal sample would be taken;
(b)        that the volunteer is under no obligation to give a buccal sample;
(c)        that the sample or the forensic DNA profile derived from it may produce evidence that might be used in a court of law;
(d)        that the buccal sample taken under this section, and the forensic DNA profile derived from it, may only be used for purposes referred to in section 15F;
(e)        that any profile derived from a sample taken under this section would   be removed within a period of three months once the purpose for which it was taken has been achieved; and
(f)         that he or she would be notified of the removal of his or her DNA profile.

The Chairperson said that in relation to the volunteer index, there was the need to make provision for a warrant.

Ms Kohler-Barnard asked that if someone was not willing to provide their sample voluntarily, under what index was such a sample going to be placed when collected with the use of a warrant.

The Chairperson said that the issue was that somebody out of ignorance might refuse to give their DNA and the person was innocent. Until the person was considered a suspect, their profile would be stored in the volunteer index and only transferred to the arrestee index if they were considered a suspect. It was important to make provision for these type of people whose DNA was obtained with the use of a warrant.

Ms Molebatsi asked if a person would still be called a volunteer even when a warrant was used to obtain their DNA.

The Chairperson said that SAPS could look at the possibility of changing the name of the index to call it something else besides volunteer index. She proposed that it could be called an investigation index.

Ms Kohler-Barnard said that she liked the suggestion of calling it an investigation index. She asked if there was any proposal as to the names which were used in other countries.

The Chairperson said that it could also be called a reference index.

Commissioner Shezi replied that in the countries where an index was called the reference index, it was in relation to buccal samples regardless of whether they were a criminal, living or dead person. The concept of using the investigative index was good and could work for the current purposes.

The Chairperson asked the legal and research team to look at the possibility of using 'investigative' and also to adapt Clause 15K to include people who were giving their DNA after the obtaining of a warrant.

Clause 15L – Elimination index
Gen Jacobs said that the Elimination Index contained forensic DNA profiles derived from a buccal sample from; a police official, or any other person, who may due to the nature of his or her official duties in relation to the attendance and processing of a crime scene; a police official or any other person, who may be handling or processing or examining crime scene samples or bodily samples under this Chapter, and to which this Chapter is applicable; where possible, any person directly involved in the manufacturing of consumables, equipment, utensils or re-agents or the servicing or calibration of equipment or in laboratories used in the forensic DNA analysis process; and any person who, for whatever reason, enters an examination area in a forensic DNA laboratory that performs forensic DNA examinations in terms of this Act, or processes, or handles or examines crime scene samples or bodily samples under this Chapter, and to which this Chapter applies. The forensic DNA profiles in the Elimination Index had to be stored on the NFDD and be retained indefinitely, unless the profile had been migrated to another Index or was no longer required. Nothing in this section prohibited the forensic DNA profile derived from a sample taken from any person mentioned in subsection (1) to be subjected to a comparative search for purposes referred to in section 15F.

The Chairperson said that the officials should look at re-wording the section which related to a police official, or any other person, who may due to the nature of his or her official duties in relation to the attendance and processing of a crime scene. The drafting was too wordy and many of the words could be avoided without changing the sense of the clause. She cited some clauses which could be worded differently.

Commissioner Shezi said that they would consider the proposal from the Chairperson.

Clause 15M – Missing Persons and Unidentified Human Remains Index
Gen Jacobs continued reading. The Missing Persons and Unidentified Human Remains Index contained forensic DNA profiles derived from any bodily sample of a missing or unidentified person or any bodily sample taken from unidentified human remains. Familial searches may be conducted in respect of bodily samples referred to in subsection and Forensic DNA profiles referred to in subsection (1) had to be stored until the purpose for which it has been stored had been achieved.

The Chairperson said that this was only going to be well handled when the issue of expungement was handled. She asked Gen Jacobs to continue reading the revised draft.

Clause 15N – Comparative forensic DNA search and communication of information
This clause stated that the authorised officer must perform comparative searches on forensic DNA profiles that were entered onto the NFDD for the purposes referred to in section 15F, and communicate the outcome of the comparative search as contemplated in subsection (2). It further stated that no person could disclose any information which he or she had obtained in the exercise of any powers or the performance of any duties in terms of this Chapter, except; to a person who of necessity required it for the performance of his or her functions in terms of this Chapter or any other Act or as provided for in section 15O; if he or she was a person who of necessity supplies it in the performance of his or her functions in terms of this or any other Act; in respect of information which was required in terms of any law or as evidence in any court of law; to any competent authority which required it for the institution, or an investigation with a view to the institution of any criminal proceedings, including a preliminary investigation or an inquest; for criminal defence purposes, to an accused person, or where the accused was a child to his or her parent or guardian, or his or her legal representative; or for exoneration purposes to a person convicted of an offence, or his or her legal representative.

The Chairperson asked if the section talking about exoneration purposes for a person convicted of an offence, or his or her legal representative could be considered within the crime scene index.

Commissioner Shezi agreed.

Clause 15O – Foreign and international law enforcement agencies
Gen Jacobs said that in this regard, the authorised officer may, subject to the provisions of this Act and any other applicable law, upon receipt of a forensic DNA profile from a foreign state or a recognised international organisation, tribunal or entity, compare the forensic DNA profile with any of the Indexes in the NFDD, except the Volunteer Index, for the purposes set out in section 15F. The authorised officer may for the purposes referred to in section 15F, communicate a forensic DNA profile contained in the Crime Scene Index to a foreign state or a recognised international organisation, tribunal or entity. The communication of the outcome of the comparative search contemplated in subsection (1) or the profile contemplated in subsection (2) may only be done subject to the international obligations of the Republic and any request in terms of this section and the outcome thereof must be reported to the Board.

The Chairperson said that this could lead to the Interpol sending through a DNA profile, asking whether the person was not on the SAPS index.

Mr George asked if this section applied to all countries or were they talking only about the countries which had bilateral agreements or arrangements.

Gen Jacobs replied that looking at the sub-section, it related to international obligations but the international obligations in terms of crime investigation went a bit further than those requesting mutual assistance. International law in this regard was much wider that basic mutual assistance. Within the Interpol community there was an agreement for South Africa to assist with criminal investigations.

Ms Kohler-Barnard said she understood that this was about a request made from another country to South Africa but she asked if the officials could show her where it referred to South Africa requesting a reciprocal arrangement from another country.

The Chairperson asked if it was possible for South Africa to legislate on such an issue because it meant that they would be legislating on behalf of other countries.

Gen Jacobs replied that the permission to ask was in sub-section 2 of the clause. The only limitation here was what the Committee had decided should be excluded from the index.

The Chairperson said that it was important to get a good definition of recognised international organisation.

Gen Jacobs said that organisations such as the United Nations Tribunals, Europol, Interpol, were examples of recognized international organisations. Within Africa, there were other recognized policing organisations especially within the sub-regional groupings such as SADC. This was why this was also limited in terms of international obligations to not make it totally open but on the other hand not get in the way of investigations.

The Chairperson said that her concern was that, for instance a pharmaceutical company was excluded from this definition of recognized international organisations. She knew that she was being over sensitive but it would be good to indicate that the recognized international organisation was in the law enforcement sphere.

Commissioner Shezi said that the request to a recognized international organisation could only be done in line with international obligations of the Republic of South Africa.

Mr George said that the inclusion of the phrase “law enforcement sphere” as indicated by the Chairperson was a good option. If that was not done, the Act would be open to a lot of misinterpretation and controversy. There were many organisations which had huge powers in various countries and could be of great and negative influence. SAPS was a law enforcement agency and had to deal only with other law enforcement agencies.

The Chairperson said that it was important for the Bill to prevent the abuse of the process and the system. All that the Members were saying was that the wording should be a bit clearer. She proposed that the officials should consider that option.

Gen Jacobs said that they would consider the proposal from Members.

Clause 15P – Compliance with quality management systems
Gen Jacobs read and explained that the authorised officer had to develop and recommend standards for quality management, including standards for testing the proficiency of forensic science laboratories and forensic analysts conducting forensic DNA analysis. The standards referred to in subsection (1) had to specify criteria for quality management and proficiency tests to be applied to the various types of forensic DNA analysis; and include a system for grading proficiency testing performance to determine whether a laboratory or forensic analyst was performing acceptably.

The Chairperson said that when the Committee started working on the Bill, they had asked Commissioner Shezi how far South Africa was in terms of the registering and accreditation of its laboratories. This was a very important aspect which could not be overlooked. She was starting to wonder if the Committee should not give deadlines on the issue as well. SAPS was continually delaying the accreditation process and she wanted to know what the situation was.

Commissioner Shezi said that the accreditation would be done successfully. The timeframes were determined by the only accrediting body in the DTI. However, SAPS had made a determination as well as the decision which initiated the process to source assessors internationally to do the assessment. SAPS had committed to get the accreditations done by May 2015.

The Chairperson said that the researchers should note this issue because she wanted follow up on the matter in writing.

Mr George asked who would determine the standards.

Commissioner Shezi said that the standards were determined by an assessment body which was an international organisation. Every organisation which carried out forensics had to adhere to norms and standards. It was important to note that a quality management system was more important than the accreditation system. It was also important to note that accreditation was not one of the key performance areas of SAPS. It was a DTI function though SAPS would facilitate the process.

The Chairperson said that the point which Mr George was making was relevant and the standards which were being referred to had to be clearly stated; if not, the standards would become sub standards.

Clause 15Q - Analysis, retention, storage, destruction and disposal of samples
Reading from the revised draft, Gen Jacobs told the Committee that buccal samples received at the forensic laboratory had to be analysed within 30 days, unless there was a compelling reason in terms of priorities why the buccal sample could not be analysed within that period. Any bodily sample taken from a person from the commencement of this Chapter and which was not relating to a crime scene sample had to be destroyed and disposed of within three months after a forensic DNA profile was obtained and loaded to the NFDD. Records of the destruction of bodily samples must be kept by the authorised officer in the prescribed manner.
The Chairperson asked who determined the compelling reasons. in this situation, where it was not done, it had to be brought to the board and it had to be explained to the board. She also asked if it was possible for buccal samples received at the forensic laboratory could be analysed within 30 days.

Commissioner Shezi replied that in terms of the presentations and the analysis, this could be problematic because it was dependent on other systems. Although the samples were processed, there were many other issues which came into play.

Mr George asked why SAPS wrote 30 days if they were not sure. He asked who wrote the 30 days.

Commissioner Shezi replied that 30 days was the time which the process could take when the systems were right. It was an achievable period but as for now, it was dependent on the other systems available.

Clause 15R – Entitlement to copy of forensic DNA profile
Gen Jacobs said that a person may apply in writing to the authorised officer for a copy of his or her forensic DNA profile kept in accordance with this Act on the NFDD, and upon receipt of such application, the authorised officer must provide a copy thereof to the applicant within 30 days from the date of receipt of such an application.

The Chairperson said that the Committee had never discussed this issue of people having to request copies of their DNA profiles, unless it was through a court of law for purposes of exoneration. This was definitely not part of what the Committee had discussed.  

Ms Kohler-Barnard said that she could understand why someone’s lawyer could apply for this. It could be because they had DNA from somewhere else and they want to compare it. The clause did not give any check or balance and it did not cover the various options. It was bizarre.

Mr George proposed that this clause should be taken out of the Bill. If for some reason, someone were to request their DNA profile, the court had to determine that and the court could look at the circumstances. He suggested that the clause should be taken out.

The Chairperson said provision could be made for a DNA profile to be requested but there had to be very specific reasons why such profiles could be requested. It could not be requested for a paternity test or something like that. It was the responsibility of the Bill to protect the DNA database from abuse. There were many unscrupulous people especially big companies which would start writing letters asking for DNA profiles of individuals and to do research. if this clause was not particularly needed, then it should be removed.

Gen Jacobs said that they would be happy to remove it.

The Chairperson said that it was an evidence based thing in any case.

Clause 15S – Infrastructure
Gen Jacobs said that the National Commissioner or his or her delegate must develop and maintain adequate information technology infrastructure and systems to support the efficient analysis of DNA samples, the performance of comparative searches against the NFDD and the administrative maintenance of the NFDD.

The Chairperson said that this clause was putting a responsibility on SAPS to make sure that they budgeted for the establishment and maintenance of laboratories. Some of the problems which detectives had were that budgets did not always go to many of the highly specialised areas and in this way there was now a legal requirement on SAPS to provide the required infrastructure and adequate budget.

Mr George said that he agreed with the Chairperson but he remarked that in the transitional period all the infrastructure was not going to be available immediately.

The Chairperson said that the clause was just saying that there had to be infrastructure. It was not necessarily saying that the infrastructure was already there or had to be there immediately.

Clause 15T – Offences and Penalties
Gen Jacobs said that any person who, with regard to any bodily sample taken from a person, and a forensic DNA profile derived there from, referred to in this Chapter used or allowed the use of those samples or forensic DNA profiles derived there from for any purpose other than those referred to in section 15F; or      tampered with or manipulated the process or the samples or forensic DNA profiles; or falsely claimed such samples or forensic DNA profiles derived there from to have been taken from a specific person whilst knowing them to have been taken from another person or source, was guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine. The biggest change here was in respect of the last sentence in aligning it with a natural person and a juristic person.

Mr George said that he was worried about that last sentence. A natural person received a very harsh sentence but in the case of juristic persons, who were often the most unscrupulous, the Bill merely said a fine. There had to be a heavy fine. Juristic persons were often representing natural persons.

Gen Jacobs said that the matter had been discussed earlier by the Committee and it was explained that in the Criminal Procedure Act, the position was held that a juristic person could not be sentenced to a period of imprisonment. In other legislation, a ten-year imprisonment related to something like R500 000 in fines. However, there was now legislation aligning the periods of imprisonment with comparable fines applicable in terms of juristic persons.

Ms Kohler-Barnard asked if she was right in thinking that when the fine was mentioned in this clause, there was an act somewhere which would determine the commensurate fine.

Gen Jacobs agreed.

Clause 15U – Awareness and Training
The Committee was told that the National Commissioner and the Executive Director of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011), had to develop awareness and training programs for the Service and the Independent Police Investigative Directorate respectively, in respect of the regulations referred to in section 15V in order to support the implementation and application of this Chapter. The National Commissioner had to also develop awareness programs to make the public aware of the provisions of this Chapter and in particular their rights relating to the taking of DNA samples, the keeping and destruction  of DNA samples and the possibility to lay complaints relating to DNA  to the Board. Furthermore, the Secretary of Police had to ensure that policy on forensic awareness was developed.

The Chairperson asked why reference was made to the IPID Act. She asked if it was necessary to include that portion.

Gen Jacobs said that it could be defined in the definitions section.

The Chairperson agreed and said that such a correction would make the Bill less wordy and clumsy.

Ms Kohler-Barnard asked why the Executive Director of the IPID had to develop awareness and training programmes. Why was the head of IPID involved in the awareness programmes? She was not sure of the reason for that.

The Chairperson said that it was because the training was within IPID and not within the public. There was the need for separation so it could not be the National Commissioner who was responsible for awareness within IPID. If it was awareness of the public, then it would be the National Commissioner.

Clause 15V – Regulations
Gen Jacobs said that the Minister had to make regulations regarding all matters which were reasonably necessary or expedient to be provided for and which must be followed by all police officials or members of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011), in order to achieve the objects of this Chapter. A regulation made under subsection (1) would prescribe a fine or a period of imprisonment for a maximum of five years for any contravention thereof or failure to comply therewith.

Ms Kohler-Barnard said that she wanted a timeframe in terms of the regulations. Acts were often passed and many years later, the relevant regulations had still not been drafted and adopted. The Committee had to state a firm timeframe. It could not be left open ended.

Mr George asked what happened to regulations after they had been drafted by the Minister.

The Chairperson said that she understood the concern raised by Mr George but Parliament was not in a position to “ok” regulations. It could be notified of the completion of such regulations. This was also going to be handled in the next clause dealing with parliamentary oversight. Ms Kohler-Barnard was right.

Commissioner Shezi said that the timeframe was in the next section.

The Chairperson said that it was better for the timeframe to be put under the regulations clause and not parliamentary oversight. She suggested that the answers to some of the questions by Members could be found in the next clause.

Clause 15W – Parliamentary Oversight
With regards to parliamentary oversight, the Committee was told that the National Commissioner had to provide, as part of the annual report of the Service to Parliament a report in respect of the performance of the NFDD and the use of forensic DNA evidence in the investigation of crime. The National Commissioner had to, at any time when requested to do so by the Minister or the relevant Parliamentary Committee, submit a report on the operations of the NFDD to the Minister or to that Committee. The regulations contemplated in section 15V, must be tabled in Parliament within six months after the commencement of this Chapter. The Minister must not later than five years after the commencement of this section, submit a report to Parliament on whether any legislative amendments were required to improve the functioning of the NFDD and the use of forensic DNA evidence in the combating of crime. After the initial period of five years referred to in subsection (2), the Minister had to, every three years, submit a report referred to in subsection (2) to Parliament.

The Chairperson proposed that the activities of the Minister were not supposed to be included in the section dealing with parliamentary oversight as he was part of the executive. This was just an issue of formatting and placing content in their right places in the Bill. The oversight of the Minister was executive oversight and not parliamentary oversight.

Clause 15X – Access to and security of the NFDD
Gen Jacobs read out the insertions relating to the access to and security of the NFDD. The National Commissioner had to secure the integrity of information on the NFDD provided for in this Chapter by taking appropriate, reasonable technical and organisational measures to prevent loss of, damage to or unauthorised destruction of information on the NFDD; and unlawful access to or processing of information on the database. In order to give effect to subsection (1), the National Commissioner had to take reasonable measures to identify all reasonable foreseeable internal and external risks to information on the database under his or her control; establish and maintain appropriate safeguards against the risks identified; regularly verify that the safeguards were effectively implemented; and ensure that the safeguards were continually updated in response to new risks or deficiencies in previously implemented safeguards. The National Commissioner had to have due regard to generally accepted information security practices and procedures which may apply to the Service generally or be required in terms of specific laws and regulations relating to security of information applicable to the Service. The National Commissioner, in consultation with the Board, must, within six months of the commencement of this section, develop standard operating procedures regarding access to the NFDD and the implementation of safety measures to protect the integrity of information contained on the NFDD. The National Commissioner had to report to Parliament any breach of the access and security measures referred to in this section as and when such breach occurred.

The Chairperson said that, in the last part, it was good that the National Commissioner had to report to Parliament but the Board had to play a big role at that level. Provision had to be made for consultation with the board. Perhaps it could be changed from “in consultation” to “after consultation” with the board. That board had to have a say in the process.

Mr George said that he would take the Committee a bit backwards to remind the Chairperson that the argument put forward for the regulations by SAPS was based on the weakness of the service and not principle. It was in this very meeting where it was agreed that regulations and laws could not be made to accommodate weaknesses in the police and justice system.

The Chairperson said that her argument for doing it was simply because this was a new piece of legislation which was handling some specific cases which were never there before and for that reason, the regulations were required to accommodate these situations. It was not based on weaknesses but it was around the process.

The Chairperson said that in the interest of time, the Committee had to move forward.

Clause 15Y - Establishment and composition of National Forensic Oversight and Ethics Board
Gen Jacobs said that in this clause, a National Forensic Oversight and Ethics Board was established. The Board had to consist of not more than ten persons appointed by the Minister for a period not exceeding five years of whom not less than three and not more than five members from outside the public sector must be persons with knowledge and experience in forensic science, human rights law and ethics relating to forensic science ; and three persons must be from the public sector, namely the Secretary of Police or his or her representative on the level of at least a Chief Director, a representative of the Department of Health on the level of at least a Chief Director and who has knowledge in the field of training in health, a representative from the Department of Justice and Constitutional Development on the level of at least a Chief Director who has a sound knowledge of constitutional law; and one person must be a representative from the South African Human Rights Commission. Save for the chairperson and governmental representatives of the Board, the non-governmental members of the Board were to be appointed by the Minister after inviting nominations from the public. The Minister had to appoint the chairperson of the Board who must be a retired judge and a deputy chairperson from the remaining members of the Board. The deputy chairperson had to exercise all the powers and perform all the duties of the chairperson whenever the chairperson was unable to do so. A member of the Board whose period of office had expired was eligible for re-appointment for one additional period not exceeding three years. The Board could determine its own governance rules and procedures and the Board must convene its first meeting within 30 days of the Board being constituted. The Board must be funded within the budget allocation of the Minister and the Minister must appoint a secretariat for the Board, responsible for the administration in respect of meetings of the Board, including the preparation of complaints for submission to the Board. The Minister may, in consultation with the Minister of Finance, determine the remuneration or payment of expenses for members of the Board, who were not appointed in terms of,  the Public Service Act, 1994 (Proclamation No. 103 of 1994), or Correctional Services Act, 1998 (Act No. 111 of 1998).

On the composition of the board, Ms Kohler-Barnard had a problem that it was appointed by the Minister and the Portfolio Committee was not involved. She had watched the appointment of many other boards and the portfolio committees were always involved. The current situation cut out the Portfolio Committee on Police and she was very uncomfortable with that.

The Chairperson said that it was important to differentiate between a board like the SABC board and the board in question. The SABC board had full time members involved in very crucial matters of the day to day progress of the entity but the current board was simply going to look at ethics and oversight. It could however still be said that the Minister could inform Parliament or the Portfolio Committee of his actions. It was important for the Committee to establish if they were happy with the people on the board. She also asked if there was a need to have Correctional Services on the board. She was just putting the question because of their current involvement but she did not think it was necessary in the long term.

Mr George said that he was happy with the composition of the board. 

Clause 15Z and 15AA – Functions and Investigations of the Board
Gen Jacobs read through the clauses relating to the functions and investigations of the board.

Gen Jacobs asked if he could continue with the reading of the repeal of laws and the schedule of memorandum on the objects of the Criminal law (Forensic Procedures) Amendment Bill, 2013.

The Chairperson said that it was alright as the content of the Bill had been exhausted. Clear instructions had been given in terms of the requirements and Committee’s expectations from the State Law Advisers and SAPS officials to effect the changes before the next meeting of the Committee. She was hoping that the Committee could use its next two meetings to get to the point where parties could take the Bill to their caucuses by Thursday, 01 August 2013. This meant that the Committee was supposed to have a clean copy by Tuesday 30 July. After the feedback from the parties, the Committee could then go to the clause-by-clause voting on the Bill.

Mr George said that he was happy with the work which had been done in terms of the quality of the deliberations.

The meeting was adjourned.