Criminal Law (Forensic Procedures) Amendment Bill [B9B-2013]; UN International Covenant on Economic, Social and Cultural Rights: briefing

Meeting report

Introduction
Prompted by the Chairperson, the meeting began with introductions from all persons present. Major General Philip Jacobs, SAPS Head of Legal Support: Crime Operations, gave a briefing on the Criminal Law (Forensic Procedures) Amendment Bill [B 9B-2013].

Background
Maj Gen Jacobs outlined that the Bill was introduced in Parliament following a study tour abroad that was undertaken by the Portfolio Committee on Police in conjunction with the South African Police Service (SAPS) and members of the Office of the Chief State Law Adviser. The Bill provides for establishment, administration and maintenance of a DNA database to enhance criminal investigations. The Bill initially formed part of the Criminal Law (Forensic Procedures) Amendment Bill, 2009 which dealt with enhancing the use of fingerprints and fostering interdepartmental cooperation to link different fingerprint databases for investigation purposes as well as the establishment of a DNA database. The Portfolio Committee split the 2009 Bill and had the fingerprint part finalized. The Portfolio Committee decided to conduct comparative research into the DNA issues before dealing with aspects related to DNA. The DNA part of the Bill was referred back to the Minister of Police so it could be aligned with research undertaken by the Portfolio Committee and any findings and recommendations that they had.

The Criminal Law (Forensic Procedures) Amendment Bill, 2013 was then drafted and aligned with common practices overseas. Cabinet approved the introduction of the Bill to Parliament and the Minister of Justice and Constitutional Development agreed that the Minister of Police should introduce the Bill subject to consultation with the Department of Justice and Constitutional Development. Consultations with the Department of Justice, Correctional Services and the Department of Health were also undertaken. The Bill was approved by the Portfolio Committee on Police. The State Law Advisers and the Department of Police were of the opinion that the Bill should be dealt with in terms of the procedure established by section 75 of the Constitution of the Republic of South Africa since it contains no provision to which section 74 or 76 of the Constitution applies.

Consultation
Maj Gen Jacobs outlined the consultation process. Internal Stakeholders such as the Ministry of Police, the Civilian Secretariat for Police, the National Commissioner: SAPS and the SA Police Service (Forensic Services) were instrumental in finalizing the Bill. The departmental and external stakeholders that were consulted consisted of the Department of Health, the Department of Correctional Services, the Department of Justice and Constitutional Development and the National Prosecuting Authority. The initial Bill was widely consulted before it was introduced in Parliament. Public hearings on the Bill were conducted during the Portfolio Committee on Police deliberations.

Contents of the Bill
Clause 1
Maj Gen Jacobs explained the contents of the Bill and outlined that Clause 1 amends terminology and inserts new definitions for “authorized officer”, “bodily sample”, “buccal sample”, “crime scene sample”, “DNA”, “forensic DNA profile”, “intimate sample” and the “NFDD” (National Forensic DNA Database of South Africa”). The clause substitutes definitions for “authorised person” and “comparative search”. This clause provides for the taking of buccal samples by an authorized person who was of the same gender as the person from whom the sample was required, subject to training requirements set by the Minister of Health deemed suitable for that purpose. The training requirements for the taking of a buccal sample were already set out in a notice by the Minister of Health and when it comes to the implementation part he would explain about training.

Clause 2
Inserts a new section 36D in the Criminal Procedure Act (CPA), providing for categories of offences in respect of which a buccal sample must be taken by an authorized person or a bodily sample must be taken by a registered medical practitioner or nurse. In the earlier version of the Bill, it referred to Schedule 1 offences, but there was a large number of offences in this list to which DNA evidence was not applicable. The Committee decided that DNA collection would kick off for Schedule 8 offences, like house break-ins and murder etc. With respect to sample collection, Schedule 8 offences have been added to the CPA. The clause provides for such samples to be taken after the arrest of a person. It also allows for the self taking of buccal sample under the supervision of an authorized person. The taking of the sample was a simple swab of saliva which was then sealed in a health kit and sent off for analysis. Clause 2 also deals with forwarding of samples to the Forensic Laboratory, the re-taking of samples in the event unsuccessful collection, subjecting samples to a comparative search, a limitation upon the use of samples or information derived there from and the retention and removal of such information or profiles from the NFDD. Like the fingerprint legislation, the abuse of DNA samples or profiles was criminalized and punishable with imprisonment not exceeding 15 years for natural person and for a fine in respect of juristic persons.

The clause also provides for intimate samples to be taken only by a registered medical doctor or registered nurse in accordance with strict decency. Any blood samples or bodily sample must be taken by registered nurse or doctor whereas buccal samples could be taken by any trained police officer. Section 36E was inserted in the CPA to provide for the taking of a buccal sample of a person or group of persons during an investigation of an offence referred to in Schedule 8 of the CPA, to include or exclude a person as a suspect in a criminal investigation. It allows for a warrant to be obtained in a situation where a person fails to give consent to the taking of a buccal sample. This was similar to the fingerprint legislation, where if there was a group present at a crime scene, it was impossible to say which specific person might be a suspect and the fingerprints of all people present would be taken. Instead of arresting everyone in a group, fingerprints and DNA samples could be taken. However, in the case of DNA collection, a warrant might be required. Maj Gen Jacobs added that there was a provision in the Explosives Act and Firearms Control Act that was similar to this one, but those provisions were being deleted because they were overlapping with this Bill. It was not desirable to have different provisions relating to the same issue in different pieces of legislation.

Clause 3
Substitutes section 212(6) of the CPA to include the bodily sample or crime scene sample, with section 212(8)(a) providing for the collection of a specimen.

Clause 4
Substitutes section 225 of the CPA to include bodily samples, crime scene sample or DNA profiles.

Clause 5
This clause provides for the addition of Schedule 8 offences in respect of which DNA samples may be taken. Maj Gen Jacobs explained that DNA samples would be collected for offences such as treason, sedition, public violence, murder, war crimes, genocide, crimes against humanity, homicide, rape, sexual assault and any sex offence against a child or the disabled, kidnapping, robbery, assault, arson, breaking and entering, theft, any offence under the Violence Control Act, violations under the Explosives Act, torture and any conspiracy to commit these offences among others.

Clause 6
This clause provides for the insertion of Chapter 5B in the South African Police Service Act, to provide for the establishment, administration and maintenance of a National Forensic DNA database, consisting of a Crime Scene Index, Arrestee Index, Convicted Offender Index, Investigative Index, Elimination Index and Missing Persons and Unidentified Human Remains Index, which also allows for ‘familial searches’. It also gives different periods for the storage and removal of forensic DNA profiles in the other indices from the NFDD. It provides for comparative DNA searches and communication of information with foreign and international law enforcement agencies and compliance with quality management systems. The clause further provides for the analysis, retention, storage, destruction and disposal of samples, except for the Crime Scene Index which have to be retained indefinitely.

The clause provides for the infrastructure, offences and penalties, awareness and training programs, issues relating to access and security of NFDD, establishment and composition of the National Forensic Oversight and Ethics Board, disqualification, removal and resignation from the Board, meetings of the Board, funding, secretariat and remuneration of members of the Board, functions of the Board, procedure for handling of complaints, disciplinary recommendations and Parliamentary oversight and regulation. Maj Gen Jacobs stated that the Committee should note that DNA was being used at the moment for crime investigations and it was currently being taken in terms of section 37. The Act, at the moment, does not provide for the taking of buccal swabs and so in the future this collection would be easier. We need to make provisions for the transfer of the present system that involves taking records of DNA profiles and going into the new system that the Bill here provides for.

Clause 7
This provides for the transitional arrangements, also giving timeframes within which forensic DNA profiles should be transferred to the NFDD after it becomes operational, including cooperation between the National Commissioner of the South African Police Service and the National Commissioner of Correctional Services regarding the taking of buccal samples of any person serving a sentence of imprisonment for offences falling under Schedule 8. Maj Gen Jacobs mentioned that to this extent, the Act had somewhat of a retrospective component. Once the Act comes into operation, the police would be empowered to take buccal swabs of people who were convicted before the Act came into operation. This was to build a database and in future to ensure that if a person commits an offence, their DNA was on record. This was deliberated quite widely and the conclusion was that it would not be unconstitutional even though legislation was not normally retrospective. The Portfolio Committee decided that taking retroactive samples would be acceptable. The clause also provides for members of the National Forensic Oversight and Ethics Board to be appointed before the commencement of the Act and that the Board must hold its first meeting within 30 days after the commencement of the Act.

Clause 8
Clause 8 repeals certain definitions of the Firearms Control Act 2000 and also the Explosives Act, 2003 to align them with the Bill, partly repealing a section in both Acts dealing with obtaining bodily samples, which matter was already covered in this legislation dealing with fingerprints and DNA.

Clause 9
Mr Maj Gen Jacobs noted that this clause provides for the short title and commencement of the Act.

Conclusion
Maj Gen Jacobs explained that the Portfolio Committee had paid a lot of attention to the Bill's effective implementation over the course of three separate meetings, where SAPS was present at one of them. There was an implementation plan that indicated how the Act was to be put into operation. Maj Gen Jacobs pointed out that the Bill itself, on page 23, outlines the financial implications for the state. Maj Gen Jacobs mentioned that the Bill would be quite expensive, and the rough estimate was R800 for a kit and analysis of a single sample. So the process with the taking of samples and analysis and the retrospective component and implementation over three years was estimated at R1.264 billion. Concerns were raised regarding these costs, and the Portfolio Committee spent a lot of time looking at the cost of implementation. From a functional side, the other generals present could give more information on this.

Discussion
Mr A Matila (ANC) began by voicing his concerns that SAPS spent millions on an IT system and it was still not operational. Currently there was an outcry around backlogs in the police forensic department. How would the Bill be implemented retrospectively taking into account these existing backlogs? Mr Matila asked if SAPS had the capacity to implement this Bill. He stated that the forensic procedures require professionals, such as doctors, and asked if SAPS had trained people to implement the Bill. He asked about the cost of training these people because ordinary police officers could not do this. He asked how each and every police station was going to implement this training and how it would proceed. He commented on the inaccuracy of the cost estimates and that the training costs did not seem to be included as part of the estimate. What would the real cost be?

Mr M Makhubela (COPE; Limpopo) asked about the training cost and the contents of the training. Who would be trained, how often would there be refresher courses and how would the trainees be selected? He asked about the difference between a reference sample and an index sample.

Mr L Nzimande (ANC) expressed concerns that some of the matters relate to the Dangerous Weapons Act and that the object of the Criminal Law (Forensic Procedures) Amendment Bill was to enhance the ability of investigations. He was trying to understand the real rationale for going retrospectively to prisons and taking samples from people that were sentenced already. He asked was this a deterrent or prevention measure. Our policy in the prisons was corrections so he believed there was disjuncture in this regard. He mentioned that people were on parole, awaiting trial, in prison or sentenced to life and therefore the real rationale around retrospective sample collection was important. He asked how practical it would be to take samples from people in prison and suggested there might be challenges with prisoner compliance to provide DNA samples. This, in turn, could result in litigation about the violation of prisoner’s rights. He asked how SAPS would populate the database; if the population of the database would be case based, suspicion based or if based on reported matters. He stated that this Bill was a huge undertaking and perhaps the Committee should hear about projected targets and the implementation plan.

Mr J Gunda (ID) stated that this Bill was a very sensitive issue because of current actions of some police officers. Was the Bill properly aligned with the Children’s Act and the Protection of Personal Information Bill? He asked if there were any sanctions against police station chiefs or commanders when these things were not properly adhered to and if so, what type of sanctions. He asked what kind of people would be trained to take DNA samples. He stated that if Mr Makhubela, once a police commissioner with more than 35 years of experience in police work, was worried, then the Committee was worried too. He would appreciate real answers. It was important that the government trusts the police service and if the delegation did not have the answer, they should be honest.

Mr M Mokgobi (ANC) stated that the buccal sample would be taken on the basis of consent and if there was no consent, a warrant was required. In the case of an underage person who does not give consent, what recourse was there was underage persons do not go to court? He asked if the current budget provided for all of this implementation. What motivated the notion that DNA should be part of everyday criminal procedure?

Mr Gunda commented on recent media reports that SAPS members in the highest positions were involved in criminal activities and were still in the service. He asked how it would be possible to solve crimes and stop perpetrators when these people were operating right under the police service’s nose.

Mr Makhubela referred to Section 36A where it states that “the sample could not be regarded as reference because when a victim scratches the assailant, the sample under the nail would contain the DNA of the assailant and not the victim”. He was confused about this and asked for clarity.

Lieutenant General Khomotso Phahlane, SAPS Head of Forensic Services, responded to this first round of questioning. They would give a briefing on the implementation plan before answering questions about it. He made it clear that the estimated costs would never be exact because they were in the developmental stage. The DNA Bill was necessary and that they could not do without it. DNA and fingerprints were the most reliable when it came to fighting crime and removed hearsay because you only had to prove it was found at the crime scene - at which point it was undisputed evidence. SAPS valued forensic services in the fight against crime. Some sentences that were secured would not have been possible without the use of DNA. Using the example of serial rapists and serial killers, 'geographical movement' was associated with these types of offenders and using DNA, links could be made between all the cases brought together and the person had to answer on all the crimes. If there were no witnesses, what other measures did one have? DNA and fingerprints were undisputed. There was an increasing rate of life sentences and this figure confirmed the value of DNA. SAPS must rely on DNA to enhance its investigation capacity. People in prison must answer for crimes that they have potentially not yet answered for. It was important that crimes get attributed to the right person. Taking DNA was not a violation of human rights and justice must be served to bring closure for victims of crimes.

With respect to the SAPS IT system not being operational, this system was not applicable to the Bill at hand. SAPS was working with technology management to ensure smooth implementation and securing of systems necessary for the Bill. One system that was critical was the reference index at a cost of R169 million and it was being rolled out in Plattekoof and in Pretoria in Arcadia and this was to ensure that when the Act becomes operational, SAPS would be ready. Other systems that were critical would be included in the description of the implementation plan. With respect to questions of whether SAPS had the human capacity to implement the Bill, they have the capacity and were growing the capacity. SAPS had employed 2000 people in forensics over the past three years, and 710 people this year alone including forensic analysts and crime scene experts. They did not need nurses or doctors – they need forensic experts and analysts. In terms of training, they were sourcing representatives from the Department of Health and National Health labs to train SAPS members. A sample was not required for every person that was arrested and it did not need to be performed by every member of the police although it was important that every member was sensitized and made aware. On the topic of backlogs, they were already on record with regards to this issue. SAPS explained that they were making good progress in the chemistry and biology departments and that they could not change the number of samples that come into the labs.

Lieut Gen Phahlane said they want to sensitize the police stations in the country on issues related to evidence collection to increase the number of exhibits sent to the labs. When the amount of exhibits increased, their capacity to test them would also increase. SAPS acknowledged that retrospective sample collection would bring a big influx of samples but over time the service would “break even” and improve sample turnaround time. Far too many crimes remain unsolved because of lack of evidence. DNA should be able to link crimes and therefore solve more cases. They were growing their capacity and managing backlogs. It should be clear what backlogs the Committee was referring to, because some of these backlogs related to Blood Alcohol Concentration (BAC) tests which had to do with the Department of Health and not the Police Service.

Lieut Gen Phahlane said the cost of the training would be discussed during the implementation plan. Part of what would follow the Bill was the topic of regulation which would be binding to all and ensure the Bill was implemented properly. The Bill made provision for sanctions and a minimum 15 year sentence was provided. Their goal was to eradicate crime and people must answer for their crimes. This should be the driving factor and motivator for implementing the Bill and if there was a behavior that the Bill did not expect, it should be dealt with in the sanctions.

With regards to cost, at this stage they could only talk about estimates. On the question of whether they currently have the funding, SAPS was a beneficiary of the Criminal Justice System and a lot of funds from there had been directed to the forensic environment which were being used to implement the Bill. Once they were at an advanced stage in the process, they would factor the future costs into planning for the future allocation of funds. This Bill could not be implemented in one day so a “phased-in” approach would be adopted to manage the process.

Major General Adeline Shezi, SAPS Forensic Services Head of Quality Management, replied to the questions on training. She said it was true people in prison might complain about having to give DNA samples, but if these people in prison could be linked to other crimes then so be it. This was not a violation of their rights, moreover, it was justice. To date, there was no court that had disputed the outcomes of work done in Forensic Services – because of compliance of its laboratories to international standards. Quality Management ensured compliance and within laboratories there were standard operating procedures that facilitate what they were doing. They employed some of the best scientists in the country trained at universities and abroad. The people they were hiring “do not come from under a tree”.

Mr Gunda was angry about this statement and the Chairperson calmed him down.

Ms Shezi continued by saying that SAPS had no doubt that certain behaviours, actions and attitudes of SAPS members may be contrary to its code of conduct. All those situations could not be dealt with to the satisfaction of everyone but if there was behavior contrary to what was expected, action must be taken. On the question of when people would be trained, this would be addressed when they outlined the implementation plan. With regards to taking samples from minors, consent or a warrant would be required.

Mr Matila referred to slide 6 of the presentation, where it stated that registered doctors or nurses would be required to take intimate samples. There was a shortage of doctors and nurses so who would be taking those samples if not doctors and nurses. He asked who would be trained to take these samples.

Mr Gunda raised the court case where the DNA was negative but the court still sent someone to prison and wondered how SAPS could justify this. Why should SAPS take samples from inmates when they should start with their own police sergeants and generals? Inmates were poor and had been sentenced already. He repeated his suggestion that they should begin by taking samples from SAPS members so that everyone was equal before the law.

Mr Nzimande asked, on the topic of retrospective sample taking, how SAPS planned to populate the database. A proper scenario and context was required. One cannot take samples from everyone for any suspicion.

Mr Matila commented that the IT system was not yet operational because people had not been trained. When the system was procured, the Committee was told that SAPS was “doing this and that” but the system had not been operational for three to five years because there was no capacity for this training. In implementing the Criminal Law (Forensic Procedures) Amendment Bill, the Committee was hearing the same story as before.

The Chairperson said questions of training should not be raised until SAPS had presented the implementation plan.

Mr Matila commented that SAPS did not have the manpower, and asked if they were ready.

Mr Makhubela asked if SAPS had checked with Crime Scene Investigation if they were in a position to deal with this new Bill. He asked if SAPS had linked their budget with the Department of Health.

Mr D Bloem (COPE) asked why SAPS had not consulted the Social Development Department on this Bill.

Ms Shezi outlined how the database would be populated with convicted offender samples. SAPS said there would be 6 indexes – the Crime Scene Index which would contain data from a crime scene, the Convicted Offender Index which corresponds to people already serving sentences, the Arrestee Index which was associated with people currently being investigated, members of SAPS among others, the Investigative Index, which contains samples from groups of people arrested, the Missing Persons and Unidentified Human Remains Index which contains samples belonging to unidentifiable remains. Currently, they have cases from the Crime Scene Index which were cold cases and could not be solved. With cold cases, SAPS believes it would be possible to close these cases by taking DNA samples from convicted offenders. The final index was the Elimination Index, which contains samples of all SAPS members working within the forensic environment. She said the IT system was not ready yet. She clarified that an evidence sample was from a crime scene and a reference sample was taken from an arrested or convicted person. In four years, they would be able to run the database. The process would be automated and would have an impact on analysis turnaround times and the system was projected to be able to process 650 000 samples per annum. With respect to who was authorized to take these samples, this matter had been discussed with the Portfolio Committee and it was decided that detectives should be trained. Doctors and nurses only take samples that police were not allowed to take and this Bill would not increase the need for nurses or doctors. The training would include learning about the Bill itself, proper techniquse for handling of samples, human rights issues associated with sample collection. With respect to Mr Gunda’s comment about a negative DNA finding and a court deciding to convict the defendant anyway, DNA enhanced investigation capacity and was important for conviction but also for exoneration.

Liet Gen Phahlane supported Maj Gen Shezi’s comments by explaining that SAPS did not anticipate hiring any doctors. If the outcome of forensic investigation concluded that the investigators could not link a specific person with a crime scene, this information could not be disputed. He said that SAPS was continuing to deal with the IT challenges. SAPS was optimistic it could make progress with the established structures.

Maj Gen Jacobs also supported the comments about doctors and nurses. Doctors and nurses would only be required to take intimate samples, such as blood or pubic hair. The Bill provides that officers who take samples must have received training. sometimes blood needs to be taken when drugs were involved, and a buccal sample does not provide any information to this end. SAPS said that they have taken into account the personal information Bill and this was discussed with the PC Committee. if commissioners and sergeants do not take into account the rules, they could be prosecuted. SAPS commented that the issue about consent was only applicable to instances where groups were involved. If the persons do not consent, a warrant was required for the sample. in the instance where a person had nothing to worry about, they will, in most cases, readily give a sample. SAPS reinforced that for Schedule 8 offences, DNA must be taken, and the only choice an arrestee had was whether they take the sample themselves or have someone else take it. SAPS mentioned that it would make sense to have the taking of DNA samples as part of the initial booking process. They have used DNA evidence in serial rape and murder cases where it had not been disputed. There was a request at cabinet level that the Bill was aligned with the Children’s Act but sometimes taking DNA samples from a child might be required for exclusion purposes. SAPS said that there was a provision for the Bill that it must be reviewed after 5 years and the minister must report every 3 years whether the Act was to be amended or not. With respect to the question asked about DNA samples from members of SAPS, SAPS said that this was considered and the Committee obtained a legal opinion. DNA samples would be taken from all new members of the force, but not on present members unless voluntary because of the possibility of labour disputes. However, DNA samples of any police officer involved in crime scene investigation must be taken.

Mr Bloem asked if obligating new police members to provide their DNA samples was against the constitution, like it was for blood samples for HIV/AIDS tests.

Mr Matila asked a question regarding SAPS’ capacity for the DNA sample processing. Mr Matila commented how there were serious complaints on a daily basis about the time it takes for a police officer to come to a house break-in crime scene and take fingerprints. Mr Matila stated that it took two and half days for police to respond to a break-in at MP’s offices. Mr Matila asked that since it was currently slow and difficult to get SAPS members to show up to a crime scene, how would SAPS have the capacity to implement the Bill as it adds more obligations than those that exist presently.

Mr Phahlane responded to a question asked earlier by Mr Bloem, saying that their consultation with Social Welfare department was an omission in the presentation, but that SAPS was indeed engaging with them, including the IDS board. With respect to addressing challenges on the ground, SAPS said they had to create an awareness campaign to increase the number of exhibits being sent to the lab and along with this they had to increase their production. SAPS concedes that they would begin the DNA database population process with a big volume of samples and it would not be “smooth sailing” at the beginning but SAPS would tackle these challenges and eventually the backlogs would be dealt with. crime scenes must be activated within an hour because they do not want crime scenes to be compromised. SAPS mentioned that they would not just offer basic forensic training to experts, but also to first responders, so that when they were at a crime scene they could do collection to make sure the scene was not compromised.

The Chairperson asked how long the training would take and what would it entail.

Ms Shezi responded that the training would take two days and would compromise, on the first day, information about the Bill, provisions of rights issues and other things related to the Bill itself. The second day would teach how to package samples, transport them, handle them etc. SAPS wants members to be competent as to the contents of the Bill. SAPS said that taking the sample was an easy process but the reasons and motivations behind this were more important.

Maj Gen Jacobs said there was a certificate issued by the department of health. There would also be a pin that distinguishes that the member had received forensic training. SAPS commented on the issue of training recruits, and said that when SAPS recruits someone to work in police services, they make sure the person does not have a criminal record. This was an instance where public rights supersede an individual’s rights. It’s a necessary process to make sure the individual had not been involved in any crimes. With regards to questions surrounding retrospective testing in the case of sentenced prisoners, samples would be required from those sentenced for Schedule 8 offences.

Mr Matila asked what would happen to all officers with criminal records who were employed by SAPS.

Liet Gen Phahlane said that this would be left to the Minister of Police to pronounce on as SAPS was considering its options currently. The SAPS delegation was not confident talking on this matter as they were not knowledgeable about the current process being discussed.

Mr Matila stated that there were implications for the Bill regarding this and Mr Bloem wondered about the implications of testing 10 000 people.

The Chairperson thanked the delegation for their presentation. The implementation plan would be presented at the next meeting.

UN International Covenant on Economic, Social and Cultural Rights: briefing by Justice Department Mr Herman Van Heerden, DoJCD Principal State Law Advisor, introduced the briefing and Ms Nkosazana Nhlapo, State Law Advisor, noted that the Covenant came into effect in 1976 and South Africa signed it in 1994 along with a host of other international human rights instruments. The Covenant was about the promotion of second generation rights: right to food, right to houses, right to health, right to education, right to social security, self determination, right to work and basically all the rights within South Africa’s Bill of Rights. The consultative process leading up to the Department of Justice dealing with the Covenant proceeded in the following manner. In 2007, Cabinet took a decision that the Department of Labour should lead with the accession of the Covenant; however there was no capacity in the Department of Labour and the responsibility was shifted onto the Department of Social Development. In conjunction with the Department of Health, it was requested to find out if there were any legislative hindrances that would affect the accession of the Covenant, and working in conjunction with the Department of Health, no hindrances were identified. The Department of Social Development encountered capacity problems, and the decision came in 2009 that the Performance Monitoring and Evaluation Unit in the Presidency should lead with the accession. This was not done, and thus in 2012, the decision was made that Department of Justice should lead with the accession. Also in 2012, the President met with the Chairperson of the South African Human Rights Commission and gave the undertaking that all of the Human Rights Instruments would be complied with.

DoJCD requested the opinion of its state law advisers because a period of time had passed since 2007 and both opinions provided were in favour of accession. The Department of Justice also contacted the Department of Education with respect to Article 13 and 14 of the Covenant. Article 13 requires compulsory free primary education and also progressively free secondary and higher education. The Department of Justice thought there might be financial or resource challenges and if any, the Department of Education should indicate their concerns so that they could be dealt with before acceding the instrument. Article 14 states that if there was not any compulsory free primary education within two years of accession, the country concerned should come up with a national action plan complete with a time frame showing how they were going to deal with the challenges and implement free education. The relevance of the Covenant was that it promotes some of the key development goals of South Africa, addressing the challenges of inequality, poverty and unemployment. The Covenant was also in line with South Africa’s five priorities of government and the Millennium Development Goals. Most of the rights listed in the Covenant were contained in other national human rights instruments that South Africa was party to such as the African Charter on Human and People’s Rights, the Convention on Elimination of Discrimination Against Women and the Convention on the Rights of the Child. The rights within the Covenant were already contained in the aforementioned instruments so it would not be an additional burden to ratify this one. One of the implications of ratification of this instrument was that the Department of Justice would need to report periodically. The Department of Justice would not need to draft any legislation to put the Covenant into effect because most of the rights in the Covenant were already contained in the Bill of rights. The Department of Basic Education, after receiving a letter, did not give a formal reply, but in essence, the Department of Justice believes that they were in agreement with the Covenant in its current form. The Department of Higher Education and Training had raised the question of whether the Covenant imposes a higher burden on them. It had requested that the Department of Justice accede to the Covenant with reservation, in other words, to make a declaration to the United Nation to the effect that South Africa would accede to the Covenant within the framework of the country’s current legislation and available resources. The Optional Protocol to the Covenant introduces an individual complaint mechanism to the UN Human Rights Committee if South Africa was not complying as a country with the Covenant. Individual citizens may complain to the Human Rights Committee on the basis of a lack of compliance. The Department of Justice said, in light of the Optional Protocol, that since the Covenant had not been put into effect yet, they might be opening themselves up to scrutiny as the instrument was not yet fully in place.

Mr Makhubela asked how the Department was going to implement this human rights instrument successfully. Why was there a concern about the requirement to report periodically to the UN? He asked for clarification about the Department of Basic Education’s response to a letter from the Department of Justice.

Mr Matila commented that the Department of Basic Education had already started implementing the Articles in this Covenant and he stated that the Portfolio Committee had already approved ratification.

The Chairperson thanked the guests and the Members and adjourned the meeting.

The meeting was adjourned.