Madam Deputy Speaker, the Office for Criminal Justice System Review has, through an analysis of existing legislation and regulations in South Africa, together with a comparative overview of recent crime scenes and forensic developments in other jurisdictions, identified certain major legislative and technological constraints and deficiencies in respect of at least two pivotal aspects of our forensic crime-fighting capacity, namely fingerprinting and DNA evidence.
Despite the fact that a number of government departments administer fingerprint databases, the South African Police Services, currently due to legal and information technology reasons, only have access to the fingerprints stored on the SAPS's Automated Fingerprinting Identification System, Afis. As a result the SAPS currently has no direct access to the Home Affairs National Identification System, HANIS, of the Department of Home Affairs where the fingerprints of 31 million citizens and about 2,5 million foreigners are kept, or to the National Traffic Information System, eNaTIS, of the Department of Transport where a further six million thumbprints are kept.
In this regard, it must be noted that the Office for the Criminal Justice System Review, through an analysis of a compendium of statistics, found that in the financial year 2006-07, 52,5% or 46,2% of all crime cases, the perpetrator remained undetected. A further 11,3%, in 2006-07 and 13% in 2007-08 of cases were withdrawn before reaching court. In other words a total of 63,8% ...
Hon members, you have a right to go out if you don't want to listen. Please, other people are listening and you are really distracting them.
In other words, Deputy Speaker, a total of 63,8% in financial years 2006-07 or 59,2% in financial years 2007-08 of all crimes investigated never reached court. Of the 6,5 million "most serious crimes" in the criminal justice system, for the period 2001 to 2006, a total of 4,4 million or 68% of cases were undetected or withdrawn before reaching court.
In addition, the current legislation scheme as set out in section 37 of the Criminal Procedure Act of 1977 does not make the taking of fingerprints compulsory, even in instances where a person has been convicted of an offence. Therefore, the manner in which fingerprints are currently collected, loaded onto the SAPS's fingerprint database and used, means that a fingerprint lifted at a crime scene will most likely only be checked against the limited number of fingerprints of convicted offenders, which have been included in that database.
The purpose, therefore, of this Bill is to address all these shortcomings by ensuring that the SAPS will have access to the fingerprint databases of other government departments for criminal investigations only, and by expanding police powers to take and retain fingerprints, body prints and photographic images of persons charged with, or convicted of, offences.
With these objectives in mind, the Bill amends Chapter 3 of the Criminal Procedures Act as well as the South African Police Services Act of 1995, the Firearms Control Act of 2000 and the Explosives Act of 2003.
The new provisions contain strict safeguards and penalties to ensure that fingerprints, body prints and photographic images are collected, stored and used only for purposes related to the detection of crime, the investigation of an offence, the identification of missing persons and the identification of unidentified human remains or conducting a prosecution.
Care has thus been taken to strike an appropriate balance between an individual's rights to dignity and privacy as entrenched in sections 10 and 14 of our Constitution, and the legitimate demand by the public that the police must pursue the objectives of preventing, combating and investigating crime; maintaining public order; protecting and securing the inhabitants of the Republic and their property; and also upholding and enforcing the law as set out in section 205(3) of our Constitution.
Care has also been taken to safeguard the rights of children who are suspected or accused of having committed an offence by providing that whenever prints are taken from a child the police officials must have a due regard for the personal rights relating to privacy, dignity and bodily integrity of the child; and to do so in private, not in view of the public; and also ensure the presence of a parent, a guardian, a social worker or an appropriate person; and treat and address the child in a manner that takes into account his or her gender and age.
The Bill does not constitute an ad hoc or random measure aimed at enhancing the SAPS's capacity to achieve the objectives that I have highlighted. It forms part of the greater objective of the review of the criminal justice system which is a work in progress.
Moreover, it is a further manifestation of the government's commitment to the combating of crime, a commitment that is reflected in the 2009 Elections Manifesto of the ruling party, the ANC, which under the heading, "Together intensify the fight against crime and corruption", amongst other things has stated the following:
Fighting crime and fighting the causes of crime will be a priority of the ANC government in the next five years and there is a need to overhaul the criminal justice system to ensure that the levels of crime are drastically reduced. Corruption must be stamped out.
The ANC government will:
Establish a new, modernised, efficient and transformed criminal justice system ...
And it will -
Actively combat serious and violent crime by being tougher on criminals and organised syndicates.
I call on all hon members of the House to support us towards achieving these objectives. I move that we do so. Thank you, Deputy Speaker.
Deputy Speaker, Deputy Ministers and Ministers, hon members and fellow South Africans, when the democratic government came into power in 1994, it took over an unjust justice system that was never meant to administer justice but to protect and preserve apartheid; that is why investigations into the murders of Steve Biko, Samora Machel and other brutal murders were never finalised. It is therefore correct for me to start by saying we are correcting deep and entrenched systemic errors.
It was in recognition of these historical realities that the former President, Thabo Mbeki and the current President, hon Jacob Zuma, called on us to establish a transformed, integrated, modernised, properly resourced and well-managed criminal justice system.
The Bill before the House is as such a product of an involved process which was led by the hon Johny De Lange as the then Deputy Minister of Justice and Constitutional Development, and now by Minister Jeff Radebe. This Bill was introduced to Parliament by Minister Jeff Radebe and referred to the Portfolio Committee on Police for processing. At the time when it was being referred to the Portfolio Committee on Police, it included parts on fingerprints, body prints, photographic images and deoxyribonucleic acid which is known as DNA.
It must be noted that the Bill had previously been considered in 2008 and early 2009 by an ad hoc committee which decided that there were a number of areas that raised the potential for a constitutional challenge. Following extensive deliberations, the Portfolio Committee on Police agreed on the fact that the Bill was an important piece of legislation that would bring some progress in the integration of the criminal justice system as well as the fight against crime.
Furthermore, the Portfolio Committee on Police noted that to process the Bill in its then current form was problematic and could take a much longer time or even have delays. The portfolio committee then resolved to split the Bill into two phases. In the first phase, the Bill deals with aspects of the fingerprints, body prints and photographic images.
We believed then, as we believe even more now that it was possible to process this aspect as quickly as possible without serious challenges and pass it into law. Today's debate indeed marks the culmination of this resolution.
Whilst not at all abandoning the DNA part, we resolved to process it as a second phase of the Bill. We resolved that the processing of the second phase of the Bill, that is the DNA aspect, should be preceded by the following, which was informed by the many submissions that had been received: firstly, benchmarking ourselves with other countries that have the same legislation as well as the Bill of Rights; secondly, a comparative study to be undertaken by our research unit; and thirdly, a study tour to countries that have the legislation on DNA together with the Bill of Rights.
Following our visit to the Forensic Laboratory in Pretoria, early this year, we are more convinced that our decision was perfectly correct. The fact that the European Court of Human Rights, in a landmark judgement delivered in December 2008, decided that the United Kingdom policy of retaining the DNA samples and profiles of innocent people is indiscriminate and unlawful, also justified our decision to split the Bill.
Assisted by our research unit, we have since identified two countries that have the best DNA services in the world, namely Canada and the UK. We hope to go to these two countries in October, this year, as part of our second phase of processing the Bill.
Looking at the Bill before us today, I just want to remind members in the simplest language that, as we speak, today, when a criminal commits a crime, like breaking into somebody's house, police may take fingerprints. I say, "may" because section 37 of the Criminal Procedure Act, Act 51 of 1977, does not make the taking of fingerprints compulsory even in instances where a person has been convicted of an offence.
But say fingerprints are lifted from the crime scene, they will be checked against the limited number of fingerprints from convicted offenders that have been included in the SAPS database. If they match any fingerprint, well, good luck for SAPS and victims; if they do not match they will be stored and wait for the arrest of a suspect whose fingerprints will then match them. If no suspect is arrested, hard luck for the police and the victims; those fingerprints will remain in the SAPS database and that is it.
This Bill seeks to make it compulsory for the police officials to take fingerprints or to cause fingerprints of any arrested person to be taken upon any charge; any person released on bail; any person upon whom summons have been served; and any person convicted by a court of law. The Bill also aims to strengthen the forensic investigative powers and the capacity of