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

Meeting report

The Chairperson invited the South African Police Service (SAPS) legal team to point out the drafting changes that had been effected since the Committee met on 1 August.

Long Title
Major-General Philip Jacobs, SAPS Head of Legal Support and Crime Operations, read through the long title of the Bill. There had been some additions in the reference to "certain portions" of the Firearms Control Act and the Explosives Act.

The Chairperson noted the agreement of Members.

Clause 1 – Definitions
Maj-Gen Jacobs read clause 1.

Mr D Stubbe (DA) asked if the reference to "authorised person" was the same as to "authorised officer".

The Chairperson explained that an "authorised person" was any official authorised by the Bill, while the "authorised officer" referred to the head of the forensic laboratory.

Clause 2 Insertion of sections 36D and 36E in Act 51 of 1977
Maj-Gen Jacobs read clause 2, which would insert new sections 36D and 36E into the Criminal Procedure Act (CPA).

Section 36D Powers in respect of buccal samples, bodily samples and crime scene samples
The amendment to section 36D(1)(b)(ii) had been changed to read "before appearance in a court to be formally charged". This was repeated later where relevant. There were other minor wording changes.

The Chairperson asked if section 36D(1) would now also make provision for a health official to take a sample. An "authorised person" was only understood to be a SAPS officer.

Maj-Gen Jacobs said that the function of the authorised person was to take a sample, or to cause a sample to be taken by a health official.

The Chairperson suggested that 36D(1)(b)(I) should include the phrase "after arrest, but before appearance in court".

Mr V Ndlovu (IFP) felt that the Committee had decided this already.

The Chairperson felt that the wording could be better aligned. There was no change to the content.

Mr M George (COPE) said that one could only appear in court after one had been arrested.

The Chairperson said that there was a 48 period after arrest during which a buccal sample could be taken.

Maj-Gen Jacobs said that this would bring the clause into line with the wording of the "Fingerprints" Act.

The Chairperson queried sub-section (4). She felt that the cross-reference could be expanded to include (3).

Maj-Gen Jacobs felt that this was already covered.

Ms D Kohler-Barnard (DA) raised the question of compelling a person to provide a sample if this was not done voluntarily.

The Chairperson said that provision had been made for this.

Maj-Gen Jacobs said that there was no provision in the "Fingerprints" Act for obligatory taking of fingerprints. There was provision in the Bill for a warrant to be issued. This was found in 36E. Once a person was arrested, he or she would be subject to the same provisions as those contained in the "Fingerprints" Act. He felt that the only concern expressed by the Committee was the amount of force that might be needed, and the respect for dignity.

Ms Kohler-Barnard felt that some SAPS officers might use excessive force to take a sample, which could lead to repercussions. Even a buccal sample was an invasive procedure, unlike fingerprints.

Maj-Gen Jacobs said that if a person refused to provide a sample, he or she would be taken to a doctor who would take a blood sample.

Mr Theo Hercules, State Law Adviser (SLA), said there was case law in this regard. There was provision for decency and order in the taking of the sample, and SAPS members would have to act accordingly.

Maj-Gen Jacobs felt that there was no need for a warrant. Once referred to a medical official, the onus was on the medical official to ensure the sample was taken.

The Chairperson, to nods of Members, felt that this would now be forcing the medical official to use a measure of force.

Maj-Gen Adeline Shezi, Head of Quality Management at SAPS Forensic Department, said that the warrant should remain an option. There would be reasonable grounds for suspicion already.

Mr Sisa Makabeni, State Law Advisor, said that Members should look at sections 36D and E separately. In the former section, any person arrested would be obliged to provide the sample.

Mr George said that arrest did not take away the assumption of innocence until proven guilty. If one refused to provide a sample, the most reasonable route was a warrant. He did not agree that "reasonable force" was possible.

The Chairperson said that there was no provision for any form of physical force. This procedure was the same as taking a fingerprint. Refusing to take fingerprints should bring an additional charge of obstruction of justice. As much as an arrestee would give fingerprints, he or she would give a buccal or other sample. There was no need for force.

Maj-Gen Jacobs said that a doctor would not be needed to take fingerprints. Some force might be needed for the buccal sample. The doctor could take another type of sample if the buccal sample was refused.

The Chairperson said that the law was being written. An arrestee must simply provide a sample, and there was no need to use force.

Ms Kohler-Barnard asked how the legislation operated for the taking of a blood sample from a person suspected of drunken driving. This could be an option.

Maj-Gen Jacobs said that a breathalyser was used in this case. A blood sample had to be taken by a medical practitioner.

Ms Kohler-Barnard said that the database would be populated from taking samples from convicted offenders. There was a possibility of a mass refusal.

The Chairperson said that this would be addressed in the following clauses. She noted agreement of Members to the current wording, without provision for physical force.

The Chairperson said that "forensic deoxyribonucleic acid (DNA) analysis" had been defined. In 5(a) the term "DNA analysis" should be changed to "forensic DNA analysis". Members agreed with the rest of the proposed section 36D.

36E Samples for investigation purposes
Maj-Gen Jacobs read the proposed section 36E, which spoke to the taking of samples for investigation purposes.

The Chairperson suggested that the word "examination" in the proposed 36E(1)(b) should be changed to "forensic DNA analysis". There should also be a reference to a buccal sample. She asked what changes to  "sample" were contemplated in (3).

Maj-Gen Jacobs said that the wording was to prevent the Bill from being too verbose.

The Chairperson felt that "changes" implied changes to a sample.

Maj-Gen Jacobs said that the insertion of a comma after "changes" would provide the requested clarity.

Clause 3
Maj-Gen Jacobs read clause 3, which would amend section 212 of the CPA. "Crime scene" and "bodily samples" had been inserted at the request of the Committee.

The Chairperson pointed out a missing bracket after "Health Act" in section 212(8)(a). Members were satisfied with the changes.

Clause 4
Maj-Gen Jacobs read clause 4, which would amend section 225 of the CPA.

Ms Kohler-Barnard queried the wording of 225(2), which referred to evidence being obtained against the wish of the accused.

Maj-Gen Jacobs said that this clause would protect the integrity of the case despite a technical fault.

Mr George said if certain legal procedures were not followed, then evidence would be inadmissible. He asked if this clause was designed to circumvent such a possibility.

Mr Hercules said that this clause would allow the accused to challenge the admissibility of evidence.

Maj-Gen Jacobs said that the clause would give some discretion to the court. Judge Bam had made a ruling on the admissibility of evidence in the interests in justice.

The Chairperson said that possibly flawed evidence could be taken to court where its validity could be challenged. This part of the legislation actually fell under the Portfolio Committee on Justice and Constitutional Development. She asked if bodily samples should be referenced in this clause. There would be a comparative process. It seemed there was no provision for a sample taken from a person to be compared to the crime scene index. Without this provision in section 225(1)(b), the Bill might be invalid.

Clause 5
Maj-Gen Jacobs took Members through clause 5, which would add Schedule 8 to the CPA. This provided for a list of offences that would justify the taking of a DNA sample. The offences of escaping from lawful custody and offences under Schedule 1 had been included.

The Chairperson thought that the Human Trafficking Act had been signed into legislation. The current wording was only indicating sexual offences, but should be expanded to include all offences under the Human Trafficking Act.

Ms A Molebatsi (ANC) asked what was meant by compelled rape. She asked what would happen if there was no dangerous wound inflicted during an assault.

Ms Kohler-Barnard asked if attempted rape was included.

Maj-Gen Jacobs explained that compelled rape occurred when one person forced another to rape a third.

The Chairperson said that there was a catch-all clause for an attempt to commit any of the listed crimes. Further offences could be added through the Regulations.

Ms Kohler-Barnard said that Parliament should have the power to specify further crimes, such as a person living with HIV/AIDS being charged with attempted murder.

Mr George supported this. However, it might be good enough to specify that Parliament should be notified.

Ms Kohler-Barnard agreed. Members should not read about new additions to the list in the newspapers.

Maj-Gen Jacobs said that a provision would be inserted to cover notification to Parliament. New legislation might become applicable. The notification process was described in the proposed section 36D.

The Chairperson suggested that this section include a requirement that the Minister advise Parliament of any changes, in addition to publishing such changes in the Gazette.

Clause 6
Maj-Gen Jacobs read clause 6, which would insert a new Chapter 5B in the SAPS Act entitled: Establishment, Administration and Maintenance of National Forensic DNA Database of South Africa.

Section 15E, 15F, 15G, 15H
The Chairperson noted that there had been some changes to the proposed section 15E.

Mr George said that the same definitions had been used as had been used in clause 1.

The Chairperson reminded Mr George that the Bill amended both the CPA Act and the SAPS Act. Members were satisfied with the proposed sections 15E, 15F, 15H. In section 15G(2)(a), it was suggested that the word "examination" should be changed to "forensic".

Section 15I
Maj-Gen Jacobs said that there was an insertion in the proposed section 15I, which provided for the arrestee index. In the proposed 15I(2)(a), the profile of a child must be removed when the child was diverted. Section 15I(2)(b) would made provision for a decision being made to prosecute a person.

The Chairperson raised concerns over the wording of the clause on the removal of the profile of a child.

Mr George felt that the clause sounded more like it was applying to the applicant than the child concerned.

Maj-Gen Jacobs said that "diversion" referred to a non-prosecutional route of dealing with offences committed by children. This option was only possible in the case of certain prescribed offences. Such measures were seen as rehabilitation and not as a prison sentence.

The Chairperson said that a diversion was done to prevent the child acquiring a criminal record. She asked if Members were satisfied with the criteria for immediate removal of the profile as specified in 15I(2).

Mr Hercules said that in 15I(5) there was provision for the clerk of the court to advise the investigating officer on the outcome of the case.

The Chairperson said that there was still a three year period for the profile to be removed after an acquittal.

Mr Stubbe said that the profile would eventually be removed. It seemed the onus was on the person to apply for the profile to be removed at an earlier date.

Mr A Soman, Director: Legislation, Civilian Secretariat for Police (CSP), said that 15I(2) referred to a case where there was an application.

Maj-Gen Jacobs said that the removal in three years would only be applicable where there was neither an application nor a notification from the court.

Mr Stubbe said that the three-year period would then fall away. He supported this.

Mr George saw that the definition was being made vague and open to interpretation. The three year period could be reduced if Members felt that way, but to specify the immediate removal of the profile would be difficult to implement.

Mr Stubbe suggested that if there was no application for the removal of the profile, then the removal could be within sixty days of the notification from the court. The provisions for adults and children could be combined.

Mr George said that the authorised officer might remove the profile soon after receiving notification. This could happen the same day, but the period could not be open-ended. "Immediate" was too open to interpretation. Some unforeseen circumstances might prevent an immediate removal.

The Chairperson read 15I(4).

Mr George said that the provisions in (4) should not depend on those in (5) and (6).

The Chairperson said that the clause should be re-ordered. The current sub-sections (5) and (6) should be the first consideration, and then only the periods currently listed in (4).

Ms Kohler-Barnard asked if this meant that the rights of a child were considered more important than those of an adult.

The Chairperson said that they were. The profiles were then required to be removed immediately upon notification, but not longer than the three-year period for an adult and twelve months for a child.

Ms Kohler-Barnard also argued over the interpretation of "immediately".

Maj-Gen Jacobs said that a reasonable period of time should be provided. There were issues of practicality.

Ms Kohler-Barnard suggested that one working week should be used as a time period. When dealing with SAPS it was important to specify exact time periods.

Mr Ndlovu asked what the consequences would be if the time frames were not met for some reason.

The Chairperson said that removal on application, as specified in 15I(2), should be thirty days. This could be used wherever "immediately" was used.

Mr George was comfortable with the three and one year limit currently set in the Bill.

Ms P Mocumi (ANC) said that 15I(2) referred to an application. This was reasonable to be done within thirty days. The three and one year limits in 15I(4) were correct, as there was no application from the person concerned in that case.

The Chairperson said that in terms of (5) and (6), the court had advised SAPS of the outcome of the case.

Maj-Gen Shezi noted that there had been lengthy consideration of this issue.

Maj-Gen Jacobs said that the profile should be removed from the arrestee index in terms of these sub-sections.

Mr George said that there were human rights issues involved. There was no pressure on SAPS to process the removal.

The Chairperson said that the only circumstances under which a profile would be removed were in the event of an application, or in the event of an acquittal or similar outcome as specified. There should be an obligation on SAPS to enquire about the status of court proceedings.

Mr Makabeni said that the courts would look at the purpose of the legislation, which was to fight crime. The court would ask what prejudice resulted from the profile remaining on the database for some time after an acquittal. If such a person were then to be implicated in a crime before the profile was removed, there was no question of prejudice.

The Chairperson said that a person with some money could hire a lawyer who would be able to advise him of his rights to removal, but a poor person who could not afford a lawyer would not be advised of his rights. She had tried to argue the point on the basis of human rights, but had been overruled by the Committee, who would have to defend the position if challenged.

Mr George suggested that the clause be adopted as it stood.

Section 15J
The Chairperson noted the satisfaction of Members with the proposed section 15J.

Section 15K
Mr George said that in the proposed section 15K(e), the person would be notified within three months of the case being finalised that his or her profile had been removed from the investigative index. He asked if this was practical.

The Chairperson said that this applied to volunteers. These people had never been arrested.

Section 15L
Ms Kohler-Barnard said that there had been some reference to all SAPS members providing samples for the elimination index in section 15L. SAPS members were expected to uphold the law, but there seemed to be an issue about the compulsory sampling of current SAPS members. She still felt that this should be the case.

The Chairperson said that the SLA had presented an opinion that expecting all current SAPS members to provide samples would be a breach of their current conditions of employment. Those working with crime scene samples would provide profiles for the elimination index.

Ms Kohler-Barnard asserted that this would be a minor change, and government was backing down to the unions.

Section 15M
Maj-Gen Jacobs said that there had been a minor insertion into 15M, which provided for the missing persons and unidentified human remains index.

The Chairperson said that 15M(3) should include a provision for profiles developed under this index to be removed when no longer required. This clause currently only referred to storage.

Section 15N
Maj-Gen Jacobs highlighted the changes to section 15N, providing for comparative forensic DNA searches and communication information.

Section 15O
Section 15O referred to foreign and international law enforcement agencies. A new sub-section (3) had been included to ensure that information could only be communicated for investigative purposes, and be in compliance with the International Cooperation in Criminal Matters Act if it was to be used in court.

Section 15P
Maj-Gen Jacobs said that section 15P(2) had been amended. This section dealt with compliance with quality management. Procedures would comply with the Accreditation for Conformity Assessment, Calibration and Good Laboratory Practice Act. Section 15Q dealt with the analysis, retention, storage, destruction and disposal of samples.

The Chairperson said that only crime scene samples could be kept indefinitely. Members were in agreement.

Section 15Q and R
Maj-Gen read section 15R, dealing with infrastructure. Under offences and penalties, specified in section 15Q, the wording of (1) had been amended. Sub-section (2) would refer to a person unlawfully losing or damaging information.

The Chairperson asked what lawful reasons might exist for destroying samples. The word "unlawfully" should be removed

Mr Hercules said that acting legally would be a defence against a charge brought in terms of (2). He agreed that "unlawfully" could be removed.

Mr George asked if a person who acted out of sheer negligence would be criminally liable.

The Chairperson said that (1)(e) provided for a penalty for the person directly responsible for the loss or damage contemplated. Sub-section (2) would cover the possible involvement of a third party in such an offence.

Mr Soman said that removing "unlawfully" made the use of "falsely claims" in (1)( c ) redundant.

Section 15T
Maj-Gen Jacobs read the proposed section 15T, providing for awareness and training problems.

Mr George asked if the CSP was responsible for awareness programmes.

The Chairperson said that awareness campaigns were the responsibility of SAPS, who had a budget.

Ms Kohler-Barnard asked if there was any time-frame attached to the awareness programs.

Maj-Gen Jacobs said that awareness programs were included in the implementation plan.

Section 15U
He continued with section 15U, which dealt with access to and security of the National Forensic DNA Database (NFDD). The correct reference had been made to referrals to the National Assembly (NA).

Section 15V
Maj-Gen Jacobs took Members through the proposed section 15V, which would establish the National Forensic Oversight and Ethics Board.

Ms Kohler-Barnard objected deeply that the credentials of nominated members of the Board would not come before Parliament.

The Chairperson noted this objection.

Maj-Gen Jacobs said that the requirement for a Board member regarding criminal offences had now been changed to read simply "convicted of a criminal offence". Provision had now been made for the dismissal of a member of the Board due to absence from three consecutive meetings without permission or in the case of ill health. There was also an addition to cover resignation, and for suspension or removal by the Minister.

Section 15X
Maj-Gen Jacobs read through section 15X, which would deal with meetings of the Board.

Mr Soman said that there was a problem with funding of the Board. This could be addressed in the transitional arrangements.

Section 15Y
Maj-Gen Jacobs read through the new proposed section 15Y, dealing with funding, secretariat and remuneration of members and the secretariat of the Board.

Section 15Z
Section 15Z would cater for the functions of the Board. There would now be provided for in (1)(b)(iv) for the Board to report on all breaches in the handling and analysis of samples, not just security breaches. This sub-clause had been split into different sub-clauses for greater clarity.

Mr Ndlovu noted that there was no provision for unlawful communication of information.

Maj-Gen Jacobs said that (1)(f) was a catch-all clause for any other matters.

The Chairperson said that there should be a specific reference for the Board to report on cases of illegal communication of information.

Mr George asked if this was necessary, as this was earlier specified as a crime.

The Chairperson said that such a provision was needed, as the Board must report on such acts. This was different to a security breach.

Mr Hercules said that the Legal Team would investigate this. They had been in consultation since the previous meeting. This provision could be included in (c )(iv), and he gave proposed wording to include "communication".

The Chairperson asked if there should be any communication between the Board and the Independent Police Investigative Directorate (IPID). One of the IPID officers could also be guilty of a breach. She asked why it was necessary for the SAPS National Commissioner to submit a report. There could be a generic requirement for reporting, with the provision for the report from the National Commissioner to be removed. Members agreed.

Maj-Gen Jacobs said that (4) would provide for the National Commissioner to report within 90 days after the receipt of a report. The Board would be empowered in (5) to appoint committees to deal with specific matters.

Sections 15AA, AB, AC, AD  
Maj-Gen Jacobs read the proposed amendments to section 15AA. Section 15AB would provide for disciplinary recommendations; Section 15AC provided for parliamentary oversight and the Board would now submit an annual report to the National Assembly.

Maj-Gen Jacobs continued with section 15AD, providing for regulations. Section 15AD(1)(a) directed the Minister to introduce regulations about the area to be designated as suitable for the taking of samples.

Clause 7
Maj-Gen Jacobs read through the changes to clause 7, which provided for transitional arrangements. The requirement for remand detainees to be sampled had been addressed.

The Chairperson said that the sampling of prisoners on remand was only for those accused of crimes in terms of Schedule 8.

Maj-Gen Jacobs said that the first meeting of the Board would be held within 30 days of the commencement of the Act in terms of (11). Sub-section (14) made provision for remand prisoners.

The Chairperson found that this was a repetition of (9). Sub-section (9) could be deleted and (14) retained. This must be done with the cooperation of the National Commissioner of the Department of Correctional Sevices.

Clause 8
Maj-Gen Jacobs read clause 8, which made provision for the repeal of laws.

Memorandum on Objects of the Bill
Maj-Gen Jacobs said that the revised Memorandum of Objects of the Bills would be presented the following week, when the financial implications were known.

The Chairperson said that there were still too many changes to be made. She suggested that the clause-by-clause approval of the Bill be held the following week, following a short briefing on the changes ordered at the current meeting. The Committee would not take kindly to any matters being neglected on that occasion. The financial report was expected on 12 August. A financial representative of SAPS must attend that meeting. The planned briefing on legislation by CSP would have to be postponed. Representatives of "TCM" must be present and the legal team must prepare a clean Bill for that meeting. No further discussion on the Bill would be entertained.

Mr Hercules asked when the clean copy of the Bill was required as it would have to be printed.

The Chairperson felt that one week was enough time for the Bill to be prepared.

The meeting was adjourned.
The Chairperson invited the South African Police Service (SAPS) legal team to point out the drafting changes that had been effected since the Committee met on 1 August.

Long Title
Major-General Philip Jacobs, SAPS Head of Legal Support and Crime Operations, read through the long title of the Bill. There had been some additions in the reference to "certain portions" of the Firearms Control Act and the Explosives Act.

The Chairperson noted the agreement of Members.

Clause 1 – Definitions
Maj-Gen Jacobs read clause 1.

Mr D Stubbe (DA) asked if the reference to "authorised person" was the same as to "authorised officer".

The Chairperson explained that an "authorised person" was any official authorised by the Bill, while the "authorised officer" referred to the head of the forensic laboratory.

Clause 2 Insertion of sections 36D and 36E in Act 51 of 1977
Maj-Gen Jacobs read clause 2, which would insert new sections 36D and 36E into the Criminal Procedure Act (CPA).

Section 36D Powers in respect of buccal samples, bodily samples and crime scene samples
The amendment to section 36D(1)(b)(ii) had been changed to read "before appearance in a court to be formally charged". This was repeated later where relevant. There were other minor wording changes.

The Chairperson asked if section 36D(1) would now also make provision for a health official to take a sample. An "authorised person" was only understood to be a SAPS officer.

Maj-Gen Jacobs said that the function of the authorised person was to take a sample, or to cause a sample to be taken by a health official.

The Chairperson suggested that 36D(1)(b)(I) should include the phrase "after arrest, but before appearance in court".

Mr V Ndlovu (IFP) felt that the Committee had decided this already.

The Chairperson felt that the wording could be better aligned. There was no change to the content.

Mr M George (COPE) said that one could only appear in court after one had been arrested.

The Chairperson said that there was a 48 period after arrest during which a buccal sample could be taken.

Maj-Gen Jacobs said that this would bring the clause into line with the wording of the "Fingerprints" Act.

The Chairperson queried sub-section (4). She felt that the cross-reference could be expanded to include (3).

Maj-Gen Jacobs felt that this was already covered.

Ms D Kohler-Barnard (DA) raised the question of compelling a person to provide a sample if this was not done voluntarily.

The Chairperson said that provision had been made for this.

Maj-Gen Jacobs said that there was no provision in the "Fingerprints" Act for obligatory taking of fingerprints. There was provision in the Bill for a warrant to be issued. This was found in 36E. Once a person was arrested, he or she would be subject to the same provisions as those contained in the "Fingerprints" Act. He felt that the only concern expressed by the Committee was the amount of force that might be needed, and the respect for dignity.

Ms Kohler-Barnard felt that some SAPS officers might use excessive force to take a sample, which could lead to repercussions. Even a buccal sample was an invasive procedure, unlike fingerprints.

Maj-Gen Jacobs said that if a person refused to provide a sample, he or she would be taken to a doctor who would take a blood sample.

Mr Theo Hercules, State Law Adviser (SLA), said there was case law in this regard. There was provision for decency and order in the taking of the sample, and SAPS members would have to act accordingly.

Maj-Gen Jacobs felt that there was no need for a warrant. Once referred to a medical official, the onus was on the medical official to ensure the sample was taken.

The Chairperson, to nods of Members, felt that this would now be forcing the medical official to use a measure of force.

Maj-Gen Adeline Shezi, Head of Quality Management at SAPS Forensic Department, said that the warrant should remain an option. There would be reasonable grounds for suspicion already.

Mr Sisa Makabeni, State Law Advisor, said that Members should look at sections 36D and E separately. In the former section, any person arrested would be obliged to provide the sample.

Mr George said that arrest did not take away the assumption of innocence until proven guilty. If one refused to provide a sample, the most reasonable route was a warrant. He did not agree that "reasonable force" was possible.

The Chairperson said that there was no provision for any form of physical force. This procedure was the same as taking a fingerprint. Refusing to take fingerprints should bring an additional charge of obstruction of justice. As much as an arrestee would give fingerprints, he or she would give a buccal or other sample. There was no need for force.

Maj-Gen Jacobs said that a doctor would not be needed to take fingerprints. Some force might be needed for the buccal sample. The doctor could take another type of sample if the buccal sample was refused.

The Chairperson said that the law was being written. An arrestee must simply provide a sample, and there was no need to use force.

Ms Kohler-Barnard asked how the legislation operated for the taking of a blood sample from a person suspected of drunken driving. This could be an option.

Maj-Gen Jacobs said that a breathalyser was used in this case. A blood sample had to be taken by a medical practitioner.

Ms Kohler-Barnard said that the database would be populated from taking samples from convicted offenders. There was a possibility of a mass refusal.

The Chairperson said that this would be addressed in the following clauses. She noted agreement of Members to the current wording, without provision for physical force.

The Chairperson said that "forensic deoxyribonucleic acid (DNA) analysis" had been defined. In 5(a) the term "DNA analysis" should be changed to "forensic DNA analysis". Members agreed with the rest of the proposed section 36D.

36E Samples for investigation purposes
Maj-Gen Jacobs read the proposed section 36E, which spoke to the taking of samples for investigation purposes.

The Chairperson suggested that the word "examination" in the proposed 36E(1)(b) should be changed to "forensic DNA analysis". There should also be a reference to a buccal sample. She asked what changes to  "sample" were contemplated in (3).

Maj-Gen Jacobs said that the wording was to prevent the Bill from being too verbose.

The Chairperson felt that "changes" implied changes to a sample.

Maj-Gen Jacobs said that the insertion of a comma after "changes" would provide the requested clarity.

Clause 3
Maj-Gen Jacobs read clause 3, which would amend section 212 of the CPA. "Crime scene" and "bodily samples" had been inserted at the request of the Committee.

The Chairperson pointed out a missing bracket after "Health Act" in section 212(8)(a). Members were satisfied with the changes.

Clause 4
Maj-Gen Jacobs read clause 4, which would amend section 225 of the CPA.

Ms Kohler-Barnard queried the wording of 225(2), which referred to evidence being obtained against the wish of the accused.

Maj-Gen Jacobs said that this clause would protect the integrity of the case despite a technical fault.

Mr George said if certain legal procedures were not followed, then evidence would be inadmissible. He asked if this clause was designed to circumvent such a possibility.

Mr Hercules said that this clause would allow the accused to challenge the admissibility of evidence.

Maj-Gen Jacobs said that the clause would give some discretion to the court. Judge Bam had made a ruling on the admissibility of evidence in the interests in justice.

The Chairperson said that possibly flawed evidence could be taken to court where its validity could be challenged. This part of the legislation actually fell under the Portfolio Committee on Justice and Constitutional Development. She asked if bodily samples should be referenced in this clause. There would be a comparative process. It seemed there was no provision for a sample taken from a person to be compared to the crime scene index. Without this provision in section 225(1)(b), the Bill might be invalid.

Clause 5
Maj-Gen Jacobs took Members through clause 5, which would add Schedule 8 to the CPA. This provided for a list of offences that would justify the taking of a DNA sample. The offences of escaping from lawful custody and offences under Schedule 1 had been included.

The Chairperson thought that the Human Trafficking Act had been signed into legislation. The current wording was only indicating sexual offences, but should be expanded to include all offences under the Human Trafficking Act.

Ms A Molebatsi (ANC) asked what was meant by compelled rape. She asked what would happen if there was no dangerous wound inflicted during an assault.

Ms Kohler-Barnard asked if attempted rape was included.

Maj-Gen Jacobs explained that compelled rape occurred when one person forced another to rape a third.

The Chairperson said that there was a catch-all clause for an attempt to commit any of the listed crimes. Further offences could be added through the Regulations.

Ms Kohler-Barnard said that Parliament should have the power to specify further crimes, such as a person living with HIV/AIDS being charged with attempted murder.

Mr George supported this. However, it might be good enough to specify that Parliament should be notified.

Ms Kohler-Barnard agreed. Members should not read about new additions to the list in the newspapers.

Maj-Gen Jacobs said that a provision would be inserted to cover notification to Parliament. New legislation might become applicable. The notification process was described in the proposed section 36D.

The Chairperson suggested that this section include a requirement that the Minister advise Parliament of any changes, in addition to publishing such changes in the Gazette.

Clause 6
Maj-Gen Jacobs read clause 6, which would insert a new Chapter 5B in the SAPS Act entitled: Establishment, Administration and Maintenance of National Forensic DNA Database of South Africa.

Section 15E, 15F, 15G, 15H
The Chairperson noted that there had been some changes to the proposed section 15E.

Mr George said that the same definitions had been used as had been used in clause 1.

The Chairperson reminded Mr George that the Bill amended both the CPA Act and the SAPS Act. Members were satisfied with the proposed sections 15E, 15F, 15H. In section 15G(2)(a), it was suggested that the word "examination" should be changed to "forensic".

Section 15I
Maj-Gen Jacobs said that there was an insertion in the proposed section 15I, which provided for the arrestee index. In the proposed 15I(2)(a), the profile of a child must be removed when the child was diverted. Section 15I(2)(b) would made provision for a decision being made to prosecute a person.

The Chairperson raised concerns over the wording of the clause on the removal of the profile of a child.

Mr George felt that the clause sounded more like it was applying to the applicant than the child concerned.

Maj-Gen Jacobs said that "diversion" referred to a non-prosecutional route of dealing with offences committed by children. This option was only possible in the case of certain prescribed offences. Such measures were seen as rehabilitation and not as a prison sentence.

The Chairperson said that a diversion was done to prevent the child acquiring a criminal record. She asked if Members were satisfied with the criteria for immediate removal of the profile as specified in 15I(2).

Mr Hercules said that in 15I(5) there was provision for the clerk of the court to advise the investigating officer on the outcome of the case.

The Chairperson said that there was still a three year period for the profile to be removed after an acquittal.

Mr Stubbe said that the profile would eventually be removed. It seemed the onus was on the person to apply for the profile to be removed at an earlier date.

Mr A Soman, Director: Legislation, Civilian Secretariat for Police (CSP), said that 15I(2) referred to a case where there was an application.

Maj-Gen Jacobs said that the removal in three years would only be applicable where there was neither an application nor a notification from the court.

Mr Stubbe said that the three-year period would then fall away. He supported this.

Mr George saw that the definition was being made vague and open to interpretation. The three year period could be reduced if Members felt that way, but to specify the immediate removal of the profile would be difficult to implement.

Mr Stubbe suggested that if there was no application for the removal of the profile, then the removal could be within sixty days of the notification from the court. The provisions for adults and children could be combined.

Mr George said that the authorised officer might remove the profile soon after receiving notification. This could happen the same day, but the period could not be open-ended. "Immediate" was too open to interpretation. Some unforeseen circumstances might prevent an immediate removal.

The Chairperson read 15I(4).

Mr George said that the provisions in (4) should not depend on those in (5) and (6).

The Chairperson said that the clause should be re-ordered. The current sub-sections (5) and (6) should be the first consideration, and then only the periods currently listed in (4).

Ms Kohler-Barnard asked if this meant that the rights of a child were considered more important than those of an adult.

The Chairperson said that they were. The profiles were then required to be removed immediately upon notification, but not longer than the three-year period for an adult and twelve months for a child.

Ms Kohler-Barnard also argued over the interpretation of "immediately".

Maj-Gen Jacobs said that a reasonable period of time should be provided. There were issues of practicality.

Ms Kohler-Barnard suggested that one working week should be used as a time period. When dealing with SAPS it was important to specify exact time periods.

Mr Ndlovu asked what the consequences would be if the time frames were not met for some reason.

The Chairperson said that removal on application, as specified in 15I(2), should be thirty days. This could be used wherever "immediately" was used.

Mr George was comfortable with the three and one year limit currently set in the Bill.

Ms P Mocumi (ANC) said that 15I(2) referred to an application. This was reasonable to be done within thirty days. The three and one year limits in 15I(4) were correct, as there was no application from the person concerned in that case.

The Chairperson said that in terms of (5) and (6), the court had advised SAPS of the outcome of the case.

Maj-Gen Shezi noted that there had been lengthy consideration of this issue.

Maj-Gen Jacobs said that the profile should be removed from the arrestee index in terms of these sub-sections.

Mr George said that there were human rights issues involved. There was no pressure on SAPS to process the removal.

The Chairperson said that the only circumstances under which a profile would be removed were in the event of an application, or in the event of an acquittal or similar outcome as specified. There should be an obligation on SAPS to enquire about the status of court proceedings.

Mr Makabeni said that the courts would look at the purpose of the legislation, which was to fight crime. The court would ask what prejudice resulted from the profile remaining on the database for some time after an acquittal. If such a person were then to be implicated in a crime before the profile was removed, there was no question of prejudice.

The Chairperson said that a person with some money could hire a lawyer who would be able to advise him of his rights to removal, but a poor person who could not afford a lawyer would not be advised of his rights. She had tried to argue the point on the basis of human rights, but had been overruled by the Committee, who would have to defend the position if challenged.

Mr George suggested that the clause be adopted as it stood.

Section 15J
The Chairperson noted the satisfaction of Members with the proposed section 15J.

Section 15K
Mr George said that in the proposed section 15K(e), the person would be notified within three months of the case being finalised that his or her profile had been removed from the investigative index. He asked if this was practical.

The Chairperson said that this applied to volunteers. These people had never been arrested.

Section 15L
Ms Kohler-Barnard said that there had been some reference to all SAPS members providing samples for the elimination index in section 15L. SAPS members were expected to uphold the law, but there seemed to be an issue about the compulsory sampling of current SAPS members. She still felt that this should be the case.

The Chairperson said that the SLA had presented an opinion that expecting all current SAPS members to provide samples would be a breach of their current conditions of employment. Those working with crime scene samples would provide profiles for the elimination index.

Ms Kohler-Barnard asserted that this would be a minor change, and government was backing down to the unions.

Section 15M
Maj-Gen Jacobs said that there had been a minor insertion into 15M, which provided for the missing persons and unidentified human remains index.

The Chairperson said that 15M(3) should include a provision for profiles developed under this index to be removed when no longer required. This clause currently only referred to storage.

Section 15N
Maj-Gen Jacobs highlighted the changes to section 15N, providing for comparative forensic DNA searches and communication information.

Section 15O
Section 15O referred to foreign and international law enforcement agencies. A new sub-section (3) had been included to ensure that information could only be communicated for investigative purposes, and be in compliance with the International Cooperation in Criminal Matters Act if it was to be used in court.

Section 15P
Maj-Gen Jacobs said that section 15P(2) had been amended. This section dealt with compliance with quality management. Procedures would comply with the Accreditation for Conformity Assessment, Calibration and Good Laboratory Practice Act. Section 15Q dealt with the analysis, retention, storage, destruction and disposal of samples.

The Chairperson said that only crime scene samples could be kept indefinitely. Members were in agreement.

Section 15Q and R
Maj-Gen read section 15R, dealing with infrastructure. Under offences and penalties, specified in section 15Q, the wording of (1) had been amended. Sub-section (2) would refer to a person unlawfully losing or damaging information.

The Chairperson asked what lawful reasons might exist for destroying samples. The word "unlawfully" should be removed

Mr Hercules said that acting legally would be a defence against a charge brought in terms of (2). He agreed that "unlawfully" could be removed.

Mr George asked if a person who acted out of sheer negligence would be criminally liable.

The Chairperson said that (1)(e) provided for a penalty for the person directly responsible for the loss or damage contemplated. Sub-section (2) would cover the possible involvement of a third party in such an offence.

Mr Soman said that removing "unlawfully" made the use of "falsely claims" in (1)( c ) redundant.

Section 15T
Maj-Gen Jacobs read the proposed section 15T, providing for awareness and training problems.

Mr George asked if the CSP was responsible for awareness programmes.

The Chairperson said that awareness campaigns were the responsibility of SAPS, who had a budget.

Ms Kohler-Barnard asked if there was any time-frame attached to the awareness programs.

Maj-Gen Jacobs said that awareness programs were included in the implementation plan.

Section 15U
He continued with section 15U, which dealt with access to and security of the National Forensic DNA Database (NFDD). The correct reference had been made to referrals to the National Assembly (NA).

Section 15V
Maj-Gen Jacobs took Members through the proposed section 15V, which would establish the National Forensic Oversight and Ethics Board.

Ms Kohler-Barnard objected deeply that the credentials of nominated members of the Board would not come before Parliament.

The Chairperson noted this objection.

Maj-Gen Jacobs said that the requirement for a Board member regarding criminal offences had now been changed to read simply "convicted of a criminal offence". Provision had now been made for the dismissal of a member of the Board due to absence from three consecutive meetings without permission or in the case of ill health. There was also an addition to cover resignation, and for suspension or removal by the Minister.

Section 15X
Maj-Gen Jacobs read through section 15X, which would deal with meetings of the Board.

Mr Soman said that there was a problem with funding of the Board. This could be addressed in the transitional arrangements.

Section 15Y
Maj-Gen Jacobs read through the new proposed section 15Y, dealing with funding, secretariat and remuneration of members and the secretariat of the Board.

Section 15Z
Section 15Z would cater for the functions of the Board. There would now be provided for in (1)(b)(iv) for the Board to report on all breaches in the handling and analysis of samples, not just security breaches. This sub-clause had been split into different sub-clauses for greater clarity.

Mr Ndlovu noted that there was no provision for unlawful communication of information.

Maj-Gen Jacobs said that (1)(f) was a catch-all clause for any other matters.

The Chairperson said that there should be a specific reference for the Board to report on cases of illegal communication of information.

Mr George asked if this was necessary, as this was earlier specified as a crime.

The Chairperson said that such a provision was needed, as the Board must report on such acts. This was different to a security breach.

Mr Hercules said that the Legal Team would investigate this. They had been in consultation since the previous meeting. This provision could be included in (c )(iv), and he gave proposed wording to include "communication".

The Chairperson asked if there should be any communication between the Board and the Independent Police Investigative Directorate (IPID). One of the IPID officers could also be guilty of a breach. She asked why it was necessary for the SAPS National Commissioner to submit a report. There could be a generic requirement for reporting, with the provision for the report from the National Commissioner to be removed. Members agreed.

Maj-Gen Jacobs said that (4) would provide for the National Commissioner to report within 90 days after the receipt of a report. The Board would be empowered in (5) to appoint committees to deal with specific matters.

Sections 15AA, AB, AC, AD  
Maj-Gen Jacobs read the proposed amendments to section 15AA. Section 15AB would provide for disciplinary recommendations; Section 15AC provided for parliamentary oversight and the Board would now submit an annual report to the National Assembly.

Maj-Gen Jacobs continued with section 15AD, providing for regulations. Section 15AD(1)(a) directed the Minister to introduce regulations about the area to be designated as suitable for the taking of samples.

Clause 7
Maj-Gen Jacobs read through the changes to clause 7, which provided for transitional arrangements. The requirement for remand detainees to be sampled had been addressed.

The Chairperson said that the sampling of prisoners on remand was only for those accused of crimes in terms of Schedule 8.

Maj-Gen Jacobs said that the first meeting of the Board would be held within 30 days of the commencement of the Act in terms of (11). Sub-section (14) made provision for remand prisoners.

The Chairperson found that this was a repetition of (9). Sub-section (9) could be deleted and (14) retained. This must be done with the cooperation of the National Commissioner of the Department of Correctional Sevices.

Clause 8
Maj-Gen Jacobs read clause 8, which made provision for the repeal of laws.

Memorandum on Objects of the Bill
Maj-Gen Jacobs said that the revised Memorandum of Objects of the Bills would be presented the following week, when the financial implications were known.

The Chairperson said that there were still too many changes to be made. She suggested that the clause-by-clause approval of the Bill be held the following week, following a short briefing on the changes ordered at the current meeting. The Committee would not take kindly to any matters being neglected on that occasion. The financial report was expected on 12 August. A financial representative of SAPS must attend that meeting. The planned briefing on legislation by CSP would have to be postponed. Representatives of "TCM" must be present and the legal team must prepare a clean Bill for that meeting. No further discussion on the Bill would be entertained.

Mr Hercules asked when the clean copy of the Bill was required as it would have to be printed.

The Chairperson felt that one week was enough time for the Bill to be prepared.

The meeting was adjourned.