Criminal Law (Forensic Procedures) Amendment Bill: SAPS & CSPS response to public submissions; with Deputy Minister

Meeting report

Opening Remarks

The Chairperson explained that the meeting was a continuation of the Wednesday, 16 March meeting.

CSPS presentation: response to public submissions

Dr Philip Jacobs, Director: Legislation, Civilian Secretariat for Police Service (CSPS), briefed the Committee on the CSPS’s response to the public submission proposals on the Criminal Law (Forensic Procedures) Amendment Bill aka DNA Bill. Dr Jacobs also addressed the use of minimum force and the capacity of SAPS, on its ability to meet its targets with the further implementation of the Bill, once approved.

It was proposed that it should be obligatory to take DNA samples from every person subsequent to being arrested, irrespective of the crime allegedly having been committed.

The recommendation is that the taking of DNA samples should remain restricted to Schedule 8 offences with the possibility of offences being added by the Minister of Justice and Constitutional Development by notice in the Gazette, after informing Parliament.

Dr Jacobs commented by saying that s36(D)(2) of the Criminal Procedure Act makes provision for the police to take a DNA sample (or any other sample) after any person was arrested. There is already provision in the Act that the police can take a DNA sample in respect of any offence, but it is not obligatory.

It was proposed that the audi alteram partem rule (to hear the other side) be applied, before a warrant is obtained for the taking, by the use of minimum force, of a buccal sample of a convicted offender.

It is not common practice, nor legally required, to apply the audi alteram partem rule in respect of obtaining a warrant. When a person refuses to undergo such sampling, a warrant may be applied for, without applying the audi alteram partem rule.

It was proposed that capacity can be added to the Forensic Sciences Laboratory (FSL) by collaborating with university laboratories and other capacity in the private sector.

Dr Jacobs said that this could be explored but it needs to be borne in mind that the integrity of the chain of evidence and being able to prove disputes in court about the analysis of samples and capturing thereof on the National Forensic DNA Database needs to be adequately addressed. It is not supported that the Bill be held in abeyance.

(see presentation for detail)

DNA Board Presentation

Mr Raymond Sono, Deputy Chairperson, DNA Board, briefed the Committee on the performance status of the FSL as at the end of Quarter Three, the functionality of the National Forensic DNA Database (NFDD); and the observations on the capacity of the FSL to effectively process DNA samples.

• Backlog reduction: the ring-fenced backlog at the beginning of June 2021 was 210 864. On 31 December 2021, this number had been to reduced 72 306. Effectively, the ring-fenced backlog has been reduced by over 65%.
• In terms of the functionality of the NFDD, the number of profiles loaded onto the various indices of the NFDD is an important indicator of the effectiveness and efficacy of the database. A comparison of data analysis shows a significant escalation in the number of forensic profiles loaded onto the database, with a lower expungement rate which is quite encouraging.
• A conclusion can be drawn that the capacity of the laboratories is in a positive state to be able to deal with implementation of the DNA Bill amendments. The Reference Index lanes have the capacity to process about 57 000 samples on monthly basis, which implies that the current capacity is sufficient to handle the influx of samples. The main challenge currently is the backlog, which means once the backlog is finished (which is anticipated to be around August), the laboratories will be able to cope well with the demands.

(see presentation for detail)

SAPS presentation: response to public submissions

Major Gen Leon Rabie, Component Head: Strategic Management, SAPS, covered the current status of the DNA backlog at FSLs, the costing of the Bill, the implementation of s36(D)(1) of the Criminal Procedure Act, training (investigation capacity) and the legal implications of the refusal to submit to taking of a sample. The presentation also responded to the matters that were raised during the public submission of the Bill.

• The current buccal sample backlog of 67 434 (as on 2022-03-17) to be eradicated by end of August 2022.
• It is estimated that the total cost for implementation of the new Act will be R 78,480 Million.
• The recent mandatory taking of buccal samples from all Schedule 8 offences will in the short term require additional measures and place some strain on resources to ensure that buccal samples are taken from persons arrested and charged and the timely analysis thereof.
• In the case where there is a refusal of taking buccal samples, Maj Gen Rabie said b
• uccal samples are the least invasive option available to obtain a DNA sample from a person. The use of minimum force only becomes necessary when the person refuses the taking of such a sample. In view of the high number of unsolved cases (especially of serious offences) and the substantial number of repeat offenders, it is submitted that the authority to take a sample from an offender will be a justified limitation of the rights of the person.

(see presentation for detail)

Discussion

Mr H Shembeni (EFF) questioned whether s36(D)(1) of the Criminal Procedure Act, makes provision for SAPS to take buccal samples of all persons arrested and formally charged irrespective of which Schedule offence or not. He asked for clarity on why amendments were needed when the law already makes provision to compel convicted offenders to submit their buccal samples.

In terms of the compliance in the taking of buccal samples, he said that he would have thought that the Integrated Case Docket Management System (ICDMS) would clearly assist in the statements that are supposed to be taken when a person is charged and what should be in those dockets. He asked if there were no administrative instructions that are given to SAPS members in the taking of buccal samples. He observed that SAPS also had a shortage of buccal sample kits, which was not acknowledged.

Ms B Marekwa (ANC) referred to the presentation by the DNA Board on the ring-fenced backlog that has been reduced by over 65%. She said that this was a positive step in the right direction while accepting that more needs to be done to address the backlog. Referring to the 34 hours of overtime, the SAPS presentation spoke of the intention to address the backlog and said that it might create a problem for the employees in the future because overtime creates a dependency where people would not want to take rest days for the amount of money that they get. Overtime causes problems as employees become overworked and may get overwhelmed with the load of work that they have to deal with. She said that she does not think that overtime is a long-term option, but that SAPS should rather look into employing more skilled analysts.

More resources and efforts need to ensure that all of the laboratories across the provinces operate equally. The buildings need to be given the necessary attention, as well as the regular maintenance of machines to ensure that laboratories have the necessary capacity and deal with the load of work. Human resources are very important, especially when employing skilled people that can deliver the services that are needed by the laboratories. She said that it is important for the decentralisation of the laboratories to continue because crime continues and there is no guarantee that it will reduce.

Dr P Groenewald (FF+) said that there are critical issues that the Committee would have to study thoroughly, specifically in the Bill. In terms of the DNA Board, there were 22 675 expungements for the arrested index, from a total of 22 857 expungements. If understood correctly, expungements imply that samples are lost. He asked what happens to the cases when the samples are expunged.

It was said that the current monthly influx of samples being processed stands at 21 000. Besides the samples that are processed, he asked what the current influx of samples is. He observed that the Reference Index (RI) lanes have the capacity to process about 57 000 samples on a monthly basis. He asked for clarity on whether this was just for the prioritised Schedule 8 offences or if this covered all Schedule 8 offences.

The DNA Board said that the poor contract management led to the backlog at the FSLs. He asked that the DNA Board elaborate on what is meant by poor contract management.

Mr A Seabi (ANC) said that he had a follow-up on Mr Shembeni’s question because the Criminal Procedure Act already makes provision for the taking of buccal samples. He asked why it was difficult to align s36(D)(1) of the Criminal Procedure Act to this Bill. He recalled that the submission by the Congress of South African Trade Unions (COSATU) proposed that the Bill be amended to require buccal samples to be collected from all persons convicted and imprisoned. Mr Seabi explained that this Bill only focuses on Schedule 8 offences, but the Criminal Procedure Act refers to every person convicted and imprisoned irrespective of which Schedule Offence the person was convicted of and imprisoned for. He said that if this Bill is passed into law, then this might create confusion. He asked for clarity on why this Bill could not refer to the Criminal Procedure Act.

He asked what was meant by the use of minimum force. In terms of the Criminal Procedure Act, it seems that the use of minimum force is not clear. Before minimum force is applied, the Minister must still make a determination to clarify the use of minimum force. He recalled that one of the public submissions, by Ms Vanessa Lynch, explained that other countries clearly defined what was meant by the use of minimum force.

The presentation by the DNA Board was helpful because it addressed the concern that was raised by one of the presenters at the previous meeting, who was worried about the capacity of SAPS in addressing the backlog at the FSLs. The presentation stated that SAPS has the capacity but there should be some improvements. Once the Bill is put into law, then there should not be an issue of capacity.

The presentation by SAPS detailed that buccal samples were not taken routinely although it is covered in the Criminal Procedure Act. He asked what the challenges were for not implementing s36(D)(1) of the Criminal Procedure Act.

Out of the 1200 police officers that will be recruited, he asked whether any of these police officers will be deployed to the laboratories or the contract management environment.

Response

Lt Gen Liziwe Ntshinga, Deputy National Commissioner: Crime Detection, SAPS, referred to the compliance rate of the taking of buccal samples. She acknowledged that there was a shortage of buccal sample kits. There was a prioritisation of Schedule 8 offences in the taking of buccal samples so that SAPS would be able to comply. From 1 November, it was compulsory for SAPS to take buccal samples as it stood in the Bill. There has been an improvement in performance as SAPS enforced its members to take buccal samples for all Schedule 8 offences.

She said that the overtime hours will not be a long-term arrangement; this is a short-term arrangement to overcome the backlog. After the project the plan to address the backlog has been finalised in August, then the work hours for the analysts will be back to normal. All of the contracts are in place and there is regular maintenance of systems and equipment. SAPS has a contract management committee that will look into the contract before it expires so that there are no further hiccups in this regard.

On the non-compliance in the taking of buccal samples, she reiterated that there was a time when SAPS did not have sufficient buccal sample kits, but everything is now in place. She said that at the beginning of the Covid-19 pandemic, everyone was scared and some of the SAPS members were also skeptical and did not want to take buccal samples from the suspects. She said that everything is now back to normal and buccal samples will be taken.

In terms of the deployment of recruits, she said that the forensics division employs skilled analysts and she does not think that the newly appointed constables will be deployed in the forensics division. She said that the laboratories have specific requirements for analysts and the newly appointed constables are for general policing.

She said that there has been fast progress with the laboratory in the Eastern Cape, which should be finalised by February 2023. The laboratory in KwaZulu-Natal is also in progress. SAPS is making progress to ensure that every Province has fully-fledged laboratories to at least assist in the first level of analysis. She said that this is a long-term process as it is a very expensive exercise to establish a laboratory.

Maj Gen N Mulaudzi, Component Head: Forensic Science Laboratory (FSL), SAPS, referred to the question of the influx of samples. He said that the present influx is that Pretoria is receiving 8000 samples per month. He said that KwaZulu-Natal, Eastern Cape and Northern Cape send their samples to the Western Cape, the Western Cape receives 13 000 samples. 21 000 samples need to be analysed every month. There are four RI lanes that have the capacity to process about 57 000 samples on a monthly basis. He emphasised that the current capacity is sufficient to handle the influx of samples.

Maj Gen RM Mogale, Division: Detective and Forensic Services, said that in terms of the compliance in the taking of buccal samples there are national measures in place to oversee and coordinate the taking of buccal samples from the provinces and to ensure that there is 100% compliance in terms of the Act.

Adv Dawn Bell, Chief Director: Legislation, CSPS, referred to the question on s36(D)(1) of the Criminal Procedure Act and the arrested persons refusal to have buccal samples taken. She said that this does cover the concern that was raised about all of the other Schedule Offences, in terms of the proposal to have buccal samples taken from every person convicted and imprisoned irrespective of the Schedule Offence. It was already established in the Criminal Procedure Act. The Bill deals specifically with transitional arrangements where the timeframe has lapsed, which covers the Schedule 8 convicted offenders. Schedule 8 also covers quite a number of other Schedules that were mentioned. She said that if the Bill included all of the other Schedule Offences which are already included in the Criminal Procedure Act then this would have to consider the cost, the numbers and relevance of taking buccal samples from offenders who fall out of the Schedule 8 prescription. It would also need to consider the administrative burden. She said that the Bill in the main deals with the Schedule 8 offences and does not overhaul the whole Act and that it only looks at the provisional measures where the timeframe had lapsed.

She said that in terms of the use of minimum force, reasonable and necessary force will be used which is minimal when the convicted offender refuses to have his/her buccal sample taken. This provision is already established in law, for example, s13(3)(b) of the SAPS Act, s13(32) of the Correctional Services Act and the Bill also provides that a National Instruction dictate how this minimum force must be administered. 

Mr Sono referred to the question regarding poor contract management. He said that he would like to withdraw this statement. He explained that when the DNA Board interacted with the logistics and supply chain management, it realised that more efforts have been made and the reports show progress. There were no governing regulations about the logistics, however, as the DNA Board continued with its work, it came to an understanding after several meetings and engagements. The Board believes that the challenges had emanated from the lack of funds that the laboratories desperately needed for their operations.

Dr Groenewald said that it was totally unacceptable for a presentation that was presented to this Committee to have misinformation. He asked why it was initially reported that it was the poor contract management that caused the backlog. He said that Mr Sono's explanation is unacceptable because it means that the presentation and the facts were not checked, which means that the presentation lied to the Committee. He said that it was totally unacceptable that a question was asked on a critical issue and a critical statement that was presented to the Committee, but the Committee is now told that the statement is withdrawn.

Lt Gen Johannes Riet, Divisional Commissioner: Supply Chain Management, SAPS, said that he will not say that there were no contract management problems in the SAPS, with specific reference to the laboratories. He recalled that there was an instance when the National Commissioner had conflict with another supplier which had a huge number of contracts within the forensic division. During this particular time, there were questions raised during a session with the Standing Committee on Public Accounts (SCOPA), as this particular contract was evergreen, meaning that this company was providing services to the forensic division without adhering to s217 of the Constitution, in terms of making sure that it is a transparent process where other suppliers can also have a chance to provide services to the forensics division. There was a need to do proper market research to find out whether other suppliers could also be approached to contribute towards giving services to SAPS, with reference to the forensic division. SAPS succeeded in this approach, despite that the funds were not made available because, at this particular time, National Treasury had a problem with issuing funds because they were of the opinion that SAPS did not manage funds according to the set prescripts and in terms of s217 of the Constitution. There were numerous problems and contracts were not in place because of these particular issues.

He explained that when money is given, this does not mean that contracts are immediately granted; it is a process, in terms of the supply chain management procedures and prescripts. He said that problems with contract management have been minimised and this is why the results can be seen in the FSLs. He assured that the supply chain management is doing its utmost best.

On the recruits that will be deployed, he said that none of these recruits are for the contract management environment because the focus point of the organisation is the operational services.  

Lt Gen Francina Vuma, Deputy National Commissioner: Support Services, SAPS, said that in the new recruitment drive that SAPS is currently busy with, it will make provision to advertise 200 posts for trainees that hold a Bachelor of Science qualification. The objective of this is so that when the need arises to capacitate the FSLs, then SAPS would appoint members from within the organisation.

Chairperson’s comments

The Chairperson said that Dr Groenewald had made a very valuable point. She said that she has insisted that the DNA Board be present. She will write a letter to the chairperson of the DNA Board and to the Minister. She said that on Wednesday, the DNA Board was not available because it said that she has given it insufficient notice. After she requested that the DNA Board be present in the current meeting, she had once again been informed that she had given the DNA Board insufficient notice. The Chairperson said that she was on the brink of summonsing the DNA Board to the Committee and that it cannot treat the Committee in this fashion. It is disrespectful, it undermines the work of the Committee and the constitutional responsibility and powers of the Committee. She expressed her dismay as it has not been a pleasant experience to interact with the DNA Board, as it has been reluctant to cooperate and send presentations. This is essentially a Bill that impacts the DNA Board in particular and the DNA Board should have been ahead of this process. She said that the DNA Board should have not have to be dragged to the Committee and that it knew that the Committee would be busy with this legislation.

The Chairperson said that she will write a letter to the chairperson of the DNA Board and to the Minister. She had to contact the Minister and the Deputy Minister on Wednesday after the chairperson of the DNA Board refused to appear before the Committee. She understood that the chairperson of the DNA Board had court matters that she had to attend to, but she was even reluctant to send a representative.

She agreed with Dr Groenewald that if the Committee does not receive the correct information then it is misleading the Committee, which is an offence that will not be swept under the carpet. She questioned how the Committee is supposed to do its oversight work if they are not given the correct information. She apologised for ending the meeting in this way but she was on the verge of postponing this meeting, because of the DNA Board’s preference for a date and schedule of a meeting. The DNA Board’s lack of planning and preparation has impacted this Committee's work. She clarified that her comments were not directed towards the deputy chairperson of the DNA Board, but towards the interaction that she had with the chairperson of the DNA Board.

Closing Remarks

The Chairperson said that the Committee will be informed of the further processing of the Bill, which will also be made public. Moving along, the Members will be kept abreast of the developments and responses. All of the comments will be factored into the work that is being done and the Committee made copious notes.

She said that the Committee Researcher and Acting Content Advisor is performing a dual function. She is doing a sterling job of managing the content, information and doing the research for this piece of legislation.

This is a very important piece of legislation and the Committee only has one opportunity to get it right.

The meeting was adjourned.