Deputy Speaker and members of the House, today we are dealing with the Criminal Law (Forensic Procedures) Amendment Bill, which deals with the use of deoxyribonucleic acid, DNA.
The use of DNA in solving crime and, in particular, serious, violent crime is imperative in modern law enforcement. Internationally the use of DNA to solve crime has become an important arsenal in the fight against crime, particularly violent crimes.
The Bill before the House amends the Criminal Procedure Act with the intention of enhancing the criminal justice system, allowing for the taking of DNA samples and the establishment of a DNA database within the SA Police Service.
It enhances the use of forensic evidence in combating crime. It translates into legislation the formulated policy with regard to DNA. It also allows for taking DNA samples from persons charged with serious criminal offences and convicted offenders or taking samples that may assist in cases of unidentified remains and missing persons.
The Bill also makes provision for crime scene samples which might be linked with samples of suspects, for DNA samples to be analysed and the results of such analysis to be kept on record for the purpose of the detection of crime and investigation of cases.
The use of DNA and the database will assist with the detection of crime, the prosecution of crime and the identification of unidentified human remains.
However, the Bill also ensures that clear procedures and standards are followed with regard to how DNA is utilised and profiles stored. It gives attention to the safeguarding of the DNA database to ensure that it is not open to abuse. It also ensures the effective oversight of the DNA database and collection process through the establishment of the national forensic oversight board.
This particular Act is going to ensure that the issue of prosecution, which has always been a challenge for crime, especially violent crimes, is dealt with and succeeds. It follows the criminal justice review process, which was done by the Justice, Crime Prevention and Security cluster some years ago, of ensuring that in the fight against crime we do things in a smart way and use the entire arsenal at our disposal.
We therefore hope that with the introduction of the Bill and its operation we are going to be able to solve a lot of cases, which remain unsolved, because this is the most scientific way of dealing with crime. As such, it is a silent witness in the fight against crime. [Applause.]
Hon Deputy Speaker, hon Minister, and members of the House, the ANC conference and the 2009 election manifesto stated the priority that fighting crime and corruption will take in the programme of government. The ANC further promised the modernisation of the criminal justice system.
We undertook to enhance our fight against crimes committed against women and children. Today, I stand before this House and I can state with confidence: The ANC leads; the ANC delivers. [Interjections.] [Laughter.]
It is of special significance that this Bill is before the House during Women's Month, as it will contribute significantly towards the fight against crimes committed against women and children.
The Criminal Law (Forensic Procedures) Amendment Bill amends two pieces of legislation: the Criminal Procedure Act, Act 51 of 1977, and the South African Police Service Act, Act 68 of 1995.
The Bill allows for the establishment by the SAPS of a DNA database of DNA profiles that will be used to identify perpetrators of crime. DNA is as unique as fingerprints and, while perpetrators can wear gloves to hide their fingerprints or wipe the scene after the crime is committed, they almost always leave DNA at a crime scene.
What will happen once this Bill becomes an Act, in simple terms, is that at the crime scene the police will look for evidence. Amongst the evidence would be that DNA that is left behind. This will be known as "crime scene samples", and it will be loaded onto the database under the crime scene index.
The police will then run that sample against the other indexes on the database and, if they get a hit, they will be able to identify the perpetrator. If they don't get a hit, they will continue the investigation until they find a suspect and arrest him or her. Just as they take fingerprints from the suspect, they will also take the suspect's DNA.
This will then be run against the crime scene index and, if it matches the profile derived from the crime scene, solid evidence that can be presented in a court will then have been achieved. DNA samples will be taken by specially selected and trained police officers through a nonintimate buccal sample. Training will be conducted by the Department of Health as per the National Health Act.
The Bill puts an obligation on the SAPS to take the DNA of suspects in serious and violent crimes. After some deliberations in the committee, a list of these crimes, where SAPS has no choice but to take DNA samples, was developed and inserted in Schedule 8 in the Criminal Procedure Act.
This was done to ensure that we prioritise the most serious and violent crimes. These crimes include crimes such as treason, terrorism, murder, rape, sexual offences, robbery and housebreaking as well as various other crimes.
In taking into consideration legislative developments as we were processing the Bill, torture and the trafficking of people were also included in the list of offences as the Bills covering these offences were signed off during that time. Apart from these crimes, where the SAPS must take DNA samples, it will have the discretion to take samples from anyone arrested for other crimes if it has reason to believe that the suspect is linked to another crime.
Furthermore, the Bill makes provision for the Minister to extend this list of crimes, as is needed. The Bill amends the South African Police Service Act, Act 68 of 1995, with the insertion of a new chapter, 5B. This chapter spells out for what purposes comparative searches can be conducted on the DNA database. These are: as a criminal investigative tool in the fight against crime; to identify persons who might have been involved in the commission of offences, including those before the Bill comes into operation; to prove the innocence or guilt of an accused person in the defence or prosecution of that person; and to assist with the identification of missing persons or unidentified human remains.
Very importantly, the committee felt that provision should also be made for the use of the DNA database for the purposes of exoneration of convicted offenders. If a person is serving a sentence and that person knows that he or she is innocent, and can prove his or her innocence with DNA, the Bill allows for it. This is in line with our human-rights basis.
The Bill allows for different indices. These are the crime scene index, the arrestee index, the convicted offender index, the investigative index and the elimination index. The hon Sibiya will speak in more detail on these indices and the population thereof as well as removal of profiles from these indexes.
I would just like to highlight that, in accordance with the Child Justice Act, subindices will be created for children under these indices, and different rules will also apply for the removal thereof.
Furthermore, the Bill will be applied retrospectively, and therefore the SAPS will have to enter into a memorandum of understanding with the Department of Correctional Services so as to take the DNA of already convicted offenders in our correctional facilities.
Remand detainees and those out on bail for Schedule 8 offences will also have to submit DNA. These samples will be used to populate the database. There are two reasons why it is important to do so: the high rate of re- offenders in South Africa and the nonintegration of the systems used by the various departments within the criminal justice system.
Many a time the SAPS will be looking for an offender, not knowing that he or she is already in a correctional facility serving time for another crime. This is one of the biggest challenges and something that we would urge members of the executive in this cluster to address with urgency.
Despite the billions already spent on the criminal justice system and integrated justice system revamp, very little is physically available to show the integration of these systems.
It is important that I highlight here that under the elimination index, the committee included - and this is very important in the light of the reports and the problems that we do have with criminality in the SAPS - the DNA profile of all new recruits within the SAPS to be uploaded on the elimination index.
We would have liked to include all samples of all SAPS members in this index, but were advised that the necessary labour consultation did not take place and that it would not be possible. We would, however, urge the Minister to have a discussion with SAPS management and the unions and look at the possibility of getting it done, firstly on a voluntary basis with the view of eventually making it compulsory through an amendment of this Bill.
In the missing persons and unidentified human remains index, provision is made for familial searches. This is the only place where we do allow familial searches. If a child goes missing, the parents can provide DNA of the child through a hairbrush or whatever else is available, that can assist the police in the search for this child. This is something that we believe is extremely important in the light of the many children that do go missing in our country. This index and familial searches will also be used in cases of natural disasters or big accidents.
The Bill provides for compliance with quality management systems to ensure that the evidence cannot be challenged in court. Section 15Q provides for the analysis, retention, storage, destruction and disposal of samples. It is only crime scene samples that will be kept indefinitely. All other samples will be destroyed after the profiles have been loaded onto the DNA database.
Section 15S provides for offences concerning the abuse, misuse, manipulation, disclosure, loss of, damage to or unauthorised destruction of information on the National Forensic DNA Database, with a term of imprisonment not exceeding 15 years for a natural person and a fine for a juristic person.
DNA is valuable to insurance and medical companies. The committee wanted to ensure that there is a strong deterrent put in place in order to make sure that they do not entice members of the police service to give them DNA profiles.
Section 15T makes provision for training and awareness programmes. The Secretariat for Police must ensure that the development of guidelines for awareness programmes are developed, the implementation thereof monitored and that it is assessed.
Section 15V establishes a national forensic oversight board. The hon Schneeman will address the topic of the board and its functions in more detail. Let me just highlight two issues: The board will have an advisory and oversight function and will also be the body to which people can complain when they feel that their DNA sample has been abused.
Hon Minister, the costing and the implementation plan presented to the committee is a concern. The department appeared before the committee three times on this issue, and it was only through persistence that we eventually got to a point where we could agree that we had received something that we can work with.
As a result of this, the committee has decided that it wants a quarterly implementation and expenditure report so as to monitor the implementation of the Bill. Eventually they told us that it will take 511 days to get the new system up and running.
It doesn't mean that the Bill can't be implemented. In the meantime, it will just work with the old system there. The implementation of the Bill and the cost to the state is high, but we believe that South Africa needs this, and when it is properly implemented the benefits that we, as a country and a people, will reap from it will far outweigh the initial financial costs.
This is not the silver bullet that will put an end to crime, but it will go a long way, supported by proper investigation, to increase our guilty verdicts in court. It will go a long way in providing justice to the women and children who are the victims of rape, murder, and other violent crimes. It will send out a strong message to the criminals out there and to those who are contemplating crime that the ANC government is serious about fighting crime and ensuring the safety of our people.
I want to thank the members of the committee for their dedication and the spirit in which we could engage on this Bill. There was a shared support for the Bill, and most of you most of the time did not try to make cheap politics from the Bill.
I would like to thank the Secretariat for Police, the legal team and the interested parties, who sat through every minute of every meeting; their dedication is appreciated. Some of them are in the gallery today.
As always, the contributions of the parliamentary researchers, empowered members. Thank you, as well, to all committee secretaries who worked on the Bill.
I would like to thank Maj Gen Shezi from the side of the police, who was at every single meeting and who had to give us technical advice, for her patience with our sometimes not having the same knowledge that she has in the scientific field.
Minister, I also extend a word of appreciation to you and the Ministry. Your commitment and dedication in the fight against crime, though not always appreciated, does not go unnoticed. Hon Deputy Speaker, this Bill before us is a dedication to the many victims of crime who have to sit in courts and relive the trauma they have been through. We had one special submission during the public hearings from a young woman, who had been gang-raped. [Time expired.] [Applause.]
Deputy Speaker, DNA evidence is to crime in the twenty- first century, and beyond, what fingerprints have been to crime for the past 100 years. While no two fingerprints have ever been found to be alike, ensuring criminal convictions worldwide, criminals have become increasingly sophisticated and security services have been forced to up their game to stay ahead of the curve.
Sophisticated crime syndicates outspend and outgun most police forces globally and ensure that fingerprints are less and less likely to be left at crime scenes. However, it is almost impossible for a criminal to fail to leave DNA evidence behind on, for example, cans, cigarette stubs, bottles, chewing gum, earphones, samples of their hair, skin, blood, saliva or semen.
In 2009 the Police portfolio committee attempted to pull the country in line with international trends by creating a legal framework by which the collection and analysis of DNA would be facilitated. There was a huge pushback from the country, largely based on rumour and ignorance in relation to human rights issues that we were ill-equipped to answer.
Therefore, we split the Criminal Law (Forensic Procedures) Amendment Bill and passed the sections on fingerprints and body prints. Then in 2011 we undertook a study tour to Canada and the United Kingdom to study the impact and implementation of DNA legislation in these two countries. Having done so, the Bill then languished at Cabinet level for two long years.
What is known as the DNA Bill has finally come to, and been worked on tirelessly, by the committee. Certain political differences have arisen, such as the ANC's insistence that the selection of board members to populate the national forensic oversight and ethics board be centralised and appointed by the Minister, with zero input from the committee. This is a move that is total anathema to the DA with its open-opportunity philosophy.
Why, when so many other committees interview board members on their suitability, the Minister decided he alone should have the right to give out these jobs is a question everyone in this House should be asking. [Interjections.]
No explanation was ever given as to why the ANC was insisting on the centralisation of power under a single person, but it is undemocratic and was frankly embarrassing to witness. [Interjections.]
This is a clear case of the centralisation of power under the executive and leaves no room for oversight over and accountability of the board. The Minister, for example, has equal powers to appoint the board of the Private Security Industry Regulatory Authority, Psira, again without any oversight from Parliament, and Psira is 100% dysfunctional.
There is also the fact that two failed attempts by the SAPS to present a proposed budget were thrown out as unacceptable. The financials were a third time presented by the very officer who has failed in 11 years to have a single docket scanned and sent to court in the multimillion rand e-docket system. Well, it seems that the database might or might not cost R1,3 billion ... [Interjections.]
Hon Deputy Speaker, on a point of order: I just want to know whether the member has ever said anything positive in her life.
That is not a point of order.
Then came the shocking revelation by the Minister of Police in answer to one of my parliamentary questions. He admitted that forensic backlogs had increased by 322% since last year. Now, we had been assured that the massive backlogs from 2007 to 2010 were a thing of the past and yet they are back with a vengeance, having soared back to 10 247 entries.
As a result, the cases related to the outstanding DNA and drugs analyses cannot be finalised, cannot go to court, criminals remain on the street and justice for victims of crime is delayed. The DA believes that this massive database would give life to hundreds, if not thousands, of cold cases by matching DNA from the unsolved crime scenes to the DNA of known felons.
However, if we now factor in the planned passing of the DNA legislation today, which will see DNA samples taken from every correctional services inmate as well as newly arrested offenders in the country, the sad reality is that with this proof those backlogs are once again a reality. There is a very real fear that a backlog of monumental proportions will develop.
Although the DA has been one of the strongest supporters of this legislation as a crucial twenty-first century crime fighting tool, this revelation shows that this system may well fail through a lack of resources.
While this DNA Bill would finally allow us to catch up to the UK, which in 1987 became the first nation in the world to utilise DNA evidence - and that was to exonerate a man - and to most countries linked to Interpol, it would also allow for the swift identification of human remains. It is crucial for identification after, for example, fires or airplane crashes.
Families, such as those of Morgan Pillay of Tongaat, are unable to bury their loved one as they await DNA identification after a house fire; or as those of 76-year-old murder victim, Lorraine Shephard from Port Elizabeth, who are forced to wait in agony as the suspects walk the streets of Port Elizabeth seven months after the murder while the detectives await DNA results. They are held hostage by shoddy administration.
In addition, rape survivors are finally realising that their cases are not being investigated in any real manner and that their attackers may go undetected or even be let off scot-free, because of these SAPS bungles and machines that sit idle because tenders for consumables have not been called for.
While on the international study tour ANC, IFP and other members refused to have their DNA taken so as to allow them access to the inner sanctum of the laboratories, and the current chairperson of our committee did not join us on the Canadian leg of our tour as, I gather, she was refused a visa. However, they have, I believe, come to understand and accept the crucial necessity of such a database.
It was on those forays into the laboratories that I came to know and deeply respect Maj Gen Adeline Shezi, the powerhouse of a woman behind the criminal DNA database.
The public pays billions of rands for these forensic laboratories in the hope that criminals will be successfully apprehended and jailed. Whether the SAPS of today have the capacity to create and run the proposed DNA criminal database is still the question. With Maj Gen Adeline Shezi at the helm, I have to believe they will.
This is an excellent piece of legislation that will fall like an anvil on the heads of criminals. I was greatly saddened that the committee chose not to follow through on our wish to ensure that every SAPS member had their DNA taken, checked and stored.
This would automatically knock them off the suspect list if they were on a crime scene - and indeed, investigating officers have to give their DNA. However, considering the huge numbers of convicted criminals within the SAPS, and the claims that this is just the tip of the iceberg, I believe this provision should have been kept within the Bill and not self-exorcised because some on the committee fear the unions.
Why would any union head object to this minor change in their terms and conditions of employment? The SAPS members give their fingerprints after all - although we now find many of them are bogus and so they are currently all being retaken. No, I don't believe any of the unions would have presented a feasible argument against this. However, no SAPS DNA can, on passing of this Bill, be run through the criminal database to ensure that there are no criminals amongst the nearly 200 000 SAPS employees.
The procedure is quite simple really. If you have nothing to fear in terms of the law, there is no reason to fear undergoing this quick and painless procedure. Neither do I believe that the unions would have fought this, but now we'll never know, will we? Nor will we know if any of our SAPS members are as yet undetected rapists or murderers.
Finally, it is imperative that all SAPS members and the staff of the Department of Health are on board. I'm talking about their cavalier treatment of the bodies of murder victims. A family in Pinetown is today still reeling from the death of their daughter, Tamlyn Smith.
She was murdered in October last year, but firstly, the SAPS failed them by not securing the scene and not taking forensic samples or fingerprints. They told the family to clean up the bodily fluids while they stood laughing and joking.
Secondly, when Tamlyn's body was removed to a state morgue run by the Department of Health, her clothes were removed and have since disappeared, despite the fact that valuable forensic evidence may have been extracted from those garments. The staff there also treated the grieving family as a mere imposition.
To make matters worse, the family waited several months for the autopsy report, and when it finally arrived, no cause of death was specified. The report refers merely to the toxicology report which, according to the investigating officer, could take as much as five years to return from Pretoria.
Yes, the DA has concerns about the political meddling and the huge challenges in implementation, but the need for this legislation in respect of the entire criminal justice system far outweighs our concerns. [Applause.]
Madam Deputy Speaker, Mr Minister and Members of Parliament, the City Press of 18 August 2013 profiled the struggle of a remarkable South African, Vanessa Lynch, whose father was murdered and the file on the case closed without investigation.
Enough DNA samples of the murderers were everywhere, but no law was in place to make use of it. She used her tragedy to make certain that government would create legislation to establish a DNA databank and legislate on forensic procedures.
This Bill that we have before us, Deputy Speaker, has been watered by the tears of many mourners and many victims of rape and brutality. Although our country has state-of-the-art forensic laboratories, DNA has only been used on a case-by-case basis with no information stored in a database. This is a pity, but fortunately, it will now change.
Today we need to salute Vanessa Lynch, Rob Matthews and geneticist, Dr Carolyn Hancock, for founding the DNA Project. The fruit of their labour is the Bill before us.
To have a record of the DNA of all prisoners in jail today, as well as that of parolees and those who are detained as suspects in connection with rape, murder or armed robbery cases, is a vital tool in solving crime cases. Cope supports the legislation.
However, the transparent and ethical use of DNA samples however, must prevail at all times. The availability of records required by the Bill should not be unnecessarily cumbersome. The necessity of these records should be adequately regulated, but not restrictively in a way that makes it burdensome.
The archiving of DNA data should be governed by the proper authorities and appropriately qualified personnel. The constitutional rights of individuals should be protected. Our constitution is the very foundation of our society, and we are fully committed to its provisions.
Cope supports the establishment of a National Forensic Oversight and Ethics Board. Specific attention should be given to people who possess the necessary education, skills, intellectual capacity and ethical values.
The board, amongst other things, should establish, recommend and monitor the movement and use of such information. It should also report to Parliament and make sure there is the capacity, within all the relevant bodies involved, to implement the necessary regulations and tasks.
The training of police members must be stepped up. The Japanese hold that it is better to plan for 90 days and do the job in 10 days rather than to plan for 10 days and take 90 days to do the job.
Police training has to be raised at several levels. Strict parameters for minimum entry levels of experience and qualifications should be adhered to. The appointment of personnel with the requisite skills for the varying stages of research must receive proper consideration.
The use of DNA material that may be gathered for such purposes should be retained for advanced crime investigation and the linking of crimes. This is of the utmost importance in a country as crime-ridden as ours. Capacity- building and continuous training must be given serious attention. The advent of the internet and internationally accessible crime registers has made it impossible to regulate the type of information that can be controlled or publicised for public consumption. We have to live with this.
After this Bill is signed into law, government will have to pay attention to the manner in which warrants of search and seizure are served, how buccal samples are taken, and how the principle of "innocent until proven guilty" will be perpetuated.
The requests of the public for use of such information should be properly monitored and governed accordingly. The danger of scammers phishing for people's identities, canvasing for business or perpetrating fraud through accessing fingerprints and other collected data is real.
I say to the Minister: Welcome to the digital age. I trust that government is located in tomorrow and not yesterday. I also want to thank those members of the SA Police Service who went out of their way to support us when we were drafting this Bill.
Deputy Speaker, hon Minister and members of the House, this Bill aims to contribute to the work of detectives and to improve the apprehension and conviction of criminals, especially rapists who appear to commit crimes against woman and children with impunity.
It will greatly assist with finding missing children and reuniting them with their families, as well as speeding up the identification of victims and missing persons after a major disaster.
In addition, it will eliminate the presence of criminals who are being assimilated into the Police Service, as they will now be identified immediately by their DNA. The IFP encourages the department to employ suitably qualified people in order to fulfil these tasks, as this is a highly skilled science which requires capable people in order to be effective.
The board of ethics must realise that its principle mandate is to investigate matters of impropriety, and it should be aware of the fact that it can be challenged if it neglects to do its work properly. The budget allocated must be properly ring-fenced to ensure that this money is not used for purposes other than forensics.
Once this Bill is passed, it should speed up the work of the detectives, improve their investigation capabilities and assist them in finalising cases without delay. The IFP hopes that the current forensic backlog will be a thing of the past and that soon the courts will no longer have to wait for years for DNA results before cases can be finalised.
The management of the SAPS must take into account the findings of the board of ethics and act on them.
This Bill before us is dedicated to the many victims of crime, who have to sit in courts and relive the trauma that they have been through. During the public hearing, we had one special submission from a young woman who was gang-raped and who shared her story with us. We appreciated her honesty, the tenderness and dedication.
She took a decision not to sit in the corner and let the horrible events that happened to her get her down; instead she started a foundation, speaking to women about rape and the importance of coming forward and speaking out.
It is to people like her - and it is to the families of the loved ones left behind - that we want to say: This is for you; this Bill is for you. [Applause.]
Hon Chair, Ministers, Deputy Ministers, Members of Parliament, I greet you all.
I am going to talk about indices. We've got five types of indices: a crime scene index; an arrest index; a convicted offender index; an investigative index; an elimination index; and, additionally, the missing persons and unidentified human remains index.
Kuyomele-ke wonke amaLungu ePhalamende, hhayi amaphoyisa kuphela abambe iqhaza kulo Mthethosivivinywa wezinhla zolibofuzo oluthathwa kulezi ziga, sonke siwazi. Kungathi uma ilungu lomphakathi likubuza, uphendule uthi usazoke uyobuza ukuthi bathini kuleli komidi, kumele nazi ukuthi kuthiwani ngalo Mthethosivivinywa. Ukwazi ukuchaza uhla ngalunye njengoba esewonke eyisithupha. Kodwa-ke, ngoba yinyanga yamakhosikazi ngizogxila kakhulu ezindabeni ezithinta amakhosikazi. (Translation of isiZulu paragraph follows.)
[It would mean that all the Members of Parliament, and not only the police, should take part in this DNA Bill and the processes that are followed when samples are taken at these scenes. We must be familiar with these processes so that when a member of the public asks us about it, we would not respond by saying that we will first consult with the members of the committee to ask them what they are discussing insofar as this issue is concerned. You must understand what this Bill is all about. You must be able to fully explain each of the six indices. But because this is Women's Month, I will focus on the issues affecting women.]
The Criminal Law (Forensic Procedures) Amendment Bill, commonly known as the DNA Bill, makes several advances towards improving the fight against crimes committed against women and children, predominantly in terms of sexual offences. Deoxyribonucleic acid evidence has become a critical tool for police investigations and the prosecution of sexual assault cases, both nationally and internationally.
The DNA evidence can be used to prove that a sexual assault occurred and, importantly, to show that the alleged offender is the source of the DNA left on the victim's body. The DNA evidence has proven valuable in solving sexual offences, especially those in serial rape cases. The DNA Bill will further empower the SAPS to use DNA evidence more effectively and it legislates for the taking of DNA samples from suspected offenders.
In this respect the DNA Bill provides that buccal samples must be taken of any person whose name appears on the national register for sex offenders.
Hhayi noma ngubani nje! [Not just anyone!]
That person will be tracked, as the hon Van Wyk has already mentioned. We take great pride in this provision as it will serve as a valuable tool for detectives when investigating sexual offences. As the Minister has already said, no one will be forced, but the process and procedures will be followed.
Singakutholi-ke sewuthi, sengifikile, ngizwile ukuthi wena awufuni nesampula lakho le-DNA, woza la ngithathe isampula le-DNA noma izinwele zakho ukuze ngizihambise. Cha, akusebenzi kanjalo! (Translation of isiZulu paragraph follows.)
[We don't want to hear you saying, Here I am, I heard that you refuse to provide your sample for DNA testing, come, let me get that DNA sample - it can be hair or anything - so that I can take it to the laboratory. No, it does not work like that!]
The DNA Bill also provides that a buccal sample must be taken by an authorised person, who is of the same gender as the person from whom such a sample is required, with strict regard to decency and order. This means that only a female officer may take the DNA of another female person.
Singatholi ubaba esemile ethi: Wena nkosikazi kudala ngabona ukuthi uyangijwayela. Bafuna isampula le-DNA kepha uyala nalo. Sengifikile, woza ngapha ngizokulungisa. Ayisebenzi kanjalo! Noma ngabe uyiLungu lePhalamende ungabasabisi abantu ubatshele ukuthi ufuna ukubalungisa. Kanjalo nomama, kukhona abazofika sebethi wena baba ngifuna isampula le-DNA yakho, ngizwile ukuthi awufuni nalo. Woza ngapha, ngiyithathe! (Translation of isiZulu paragraph follows.)
[We don't want to find a husband saying: Wife, I have realised a long time ago that you take me for granted. The authorities want a sample of your DNA and you refuse to provide it to them. I am here now, come here so that I can deal with you. It does not work like that! And even if you are a Member of Parliament, you are not supposed to threaten people by telling them that you are going to deal with them. This includes women; some would say: Husband, I want your DNA sample, I heard that you refuse to provide it. Come here, let me take it!]
Females will deal with females and males will deal with males.
Ihamba kanjalo nje! [That is just how it is done!]
Clause 5 of the DNA Bill provides for the insertion of a new schedule 8 in the Criminal Procedure Act, Act 32 of 1977. This new schedule includes the rape or compelled rape, as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007.
It also includes sexual assault, compelled sexual assault or compelled self- sexual assault, as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007; and any sexual offence against a child or a person who is mentally disabled, as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
The Bill also provides that buccal samples be taken from alleged perpetrators before their appearance in court to be formally charged for any offence referred to above, and that once an alleged sexual offender is convicted of a sexual assault, his or her DNA profile will be stored in the NRSO database indefinitely.
Asizukufuna-ke isampula le-DNA kungakayiwa enkantolo. Kuzofunwa isampula le- DNA sekuqediwe enkantolo. Akuzukusho wena ukuthi bakhona abaqeqeshelwe ukwenza lo msebenzi, okuyibona abazosho-ke ukuthi kuyiwa enkantolo nje uqedile - selithathiwe isampula le-DNA yakho kuqediwe. Njengoba sesishilo, hhayi ngendluzula! Kepha uma ngabe uthi wena awufuni kuthathwe isampula le- DNA, zikhona izindlela ezilandelwayo ezisemthethweni. Hhayi ngendluzula! (Translation of isiZulu paragraph follows.)
[We won't ask for a DNA sample before we appear in court. The DNA sample would be requested after the court processes have been completed. It's not you who should say that there are people who are trained to do this job, who would then say that we have already appeared in court - the DNA sample has been taken and it is done. As we have already stated, it should not be done by force! But if you say you don't want your DNA sample to be taken, there are legal routes that will be followed to take it. It won't be done by force!]
The DNA Bill considers the fight against crime against women and children as of the utmost importance. I am confident that this legislation will ensure that those guilty of sexual assaults and rape will be caught and convicted more effectively with the assistance of this legislation.
Sonke-ke njengamaLungu ePhalamende masiphume seseke lo Mthethosivivinywa ukuze ube yimpumelelo. Masilekelelane, singabheki amaphoyisa ukuthi awenzile yini umsebenzi sibe singawenzanga umsebenzi wethu. Asisebenzisane. Ngiyabonga, Sihlalo. [Ihlombe.] (Translation of isiZulu paragraph follows.)
[All of us, as Members of Parliament, must come out and support this Bill in order for it to be a success. Let us assist one another, and not just look at the police to see if they have done their work while we haven't done ours. Let us work together. Thank you, Chairperson. [Applause.]]
Chairperson, the members of the Portfolio Committee on Justice have kept a watchful eye on this Bill that was handled so well by the Portfolio Committee on Police.
The ACDP welcomes and supports the finalisation of a Bill that is long overdue in its making. As we know, the Bill amends the current Criminal Procedure Act, which requires that a court order be granted before a DNA sample is obtained. With this amendment, an arrested or charged person will not be able to refuse to allow a DNA sample to be taken from them. Therefore the requirement of a court order falls away. Given the exceptionally high crime rate in South Africa, and as has been pointed out by various other speakers, this move is to be welcomed since it is long overdue. The legislation that allows for the SAPS system to be linked to the fingerprint database of the Department of Home Affairs and the thumb system of the Department of Transport should enable the police not only to be effective in solving past, present and future crimes, but also to increase their ability to link perpetrators to multiple crime scenes.
It is quite shocking that it has taken such a long time for this Bill to be finalised and to get to this stage, given that DNA evidence has been in the domain for so many years.
It is extraordinary from a legal perspective that the Bill will operate retrospectively. However, as the ACDP, we believe that it is necessary that it operates like that in the fight against crime. No doubt, some people will contest this from a constitutional perspective, but we do believe that it is necessary to build up the DNA database of those who have already been imprisoned and convicted for serious offences.
We are also aware that the Human Rights Commission argued that the mandatory taking of fingerprints and DNA samples must be balanced against the right of privacy and that this was largely part of the debate against this Bill that is now being dealt with.
We see that the Bill provides for a national forensic oversight board, which will monitor compliance with regard to issues of ethics and privacy, and that the Human Rights Commission will also form part of that board, participate in its proceedings and provide input in the oversight body. We believe that this is a vital check and balance and will help increase the Bill's effectiveness.
We also understand that there were a lot of concerns about the cost of implementation and welcome it that the quarterly monitoring of the implementation costs will be done by the Portfolio Committee on Police. Clearly, effective implementation is critical for the success of this Bill as an effective tool in the fight against crime.
In conclusion, the ACDP wishes to echo the words of one submission that was made, stating that:
If passed, this Bill would revolutionise crime scenes investigation in South Africa in line with best international practice and increase the number of convictions.
We, as the ACDP, commend the ANC, the DA and the other parties that participated in the deliberations on this Bill. Well done, hon Minister, for bringing a very positive Bill to this House.
House Chairperson, the Criminal Law (Forensic Procedures) Amendment Bill that we are discussing today and which is sometimes referred to as the DNA Bill, fulfils the commitments made by the ANC in its election manifesto during the 2009 national and provincial elections when we said that the fight against crime would be intensified; that we would actively combat serious and violent crimes by being tough on criminal and organised syndicates; that we would increase the capacity of the SAPS through equipping and increasing the capacity of, especially, the detective services, forensics and prosecution; and that we would combat crimes against women and children.
This Bill further gives practical meaning to the commitments which the ANC has made and continues to make. The Bill provides for an oversight and ethics board whose responsibility will be to advise the Minister of Police, oversee the use of DNA evidence and handle complaints.
The work of the board will include making proposals to the Minister of Police on the improvement of practices and oversight processes in relation to the collection, retention, storage, destruction and disposal of DNA samples; the retention and removal of forensic DNA profiles; familial searches; and any breach in respect of the taking, transporting, analysis or storage of DNA samples, including security breaches.
The board will also deal with complaints regarding any alleged violations in relation to possible abuse of DNA samples and forensic DNA profiles, as well as security breaches. The members who serve on the board will be appointed by the Minister.
The board will be comprised of 10 members, five of whom should not be working in the public sector and should have experience in forensic science, human rights law or ethics which relates to forensic science.
In addition, a representative of the South African Human Rights Commission has to serve on the board. The chairperson of the board should either be a retired judge or a senior advocate who has knowledge and experience in the area of human rights.
The board will be funded from the budget of the Civilian Secretariat for Police and is required to meet on a quarterly basis at the very least. The Bill also provides for an oversight role by Parliament, which includes the submission of reports by the SAPS National Commissioner, the Executive Director of the Independent Police Investigative Directorate and the board itself.
In addition, after five years the Minister of Police will be required to submit a report to the National Assembly indicating whether any amendments need to be made to the Act that would assist in improving the functioning of the national forensic DNA database as well as the use of forensic DNA evidence used in fighting crime. Thereafter, the Minister of Police will be required to submit a report every three years. The Bill also ensures that the use of DNA in solving crimes will be controlled and will not be open to abuse.
By supporting this Bill today, all of us in the House are sending out a very clear message to the citizens of South Africa that both the ANC and the government are very serious about reducing crime levels and ensuring that those who commit crimes are caught and convicted.
There are many examples of how DNA has been used in solving crimes here in South Africa. In 2002, for example, by using DNA profiling for six people, who had been accused of brutally raping a nine-month-old baby girl, were exonerated and the actual perpetrator was identified.
In another case, a pair of twin babies, who were found apparently abandoned in a taxi, was reunited with their parents through the use of DNA profiling.
Internationally, canine and feline databases have been established. In 1996 a DNA fingerprint was found on the hairs of a cat. The hairs were lodged in the curtain at the crime scene and were matched to those found on the owner of the cat, who then turned out to be the suspect and was successfully convicted. This actually proves the power of using DNA to solve crimes.
The second message that we are sending out is directed at criminals and potential criminals. They should know that the potential of committing crime and not getting caught is narrowing and will get even narrower with the passing of this Bill.
We want to ask the SAPS to ensure that our men and women in blue are well trained in the use of DNA in the fight against crime. We also ask that they use this tool effectively and efficiently. After we have passed this Bill and the President has enacted it, it will strengthen the hand of the SAPS in tracking down criminals and ensuring that they are successfully convicted.
In conclusion, I want to correct one or two things that were raised by my dear colleague, the hon Kohler-Barnard. Firstly, regarding the taking of DNA samples from police officers, the ANC indeed wanted all police officers to give DNA samples. But we cannot do this because of the legal opinion of the state law advisors who said that we can only start doing it with the new recruits.
That is what I want to correct. It's misleading to come here and say that the ANC didn't want that.
Secondly, regarding the appointment of the board, the hon Kohler-Barnard comes here and makes a statement about her proposal for the formation of the board. What she doesn't say is that during the committee sittings and the hearings nobody supported her proposal. So what does she expect?
The last point that I want to raise is that it is factually incorrect to come here and say that this Bill was left lying in the office of the Minister. It is incorrect. To remind the hon Kohler-Barnard, when this Bill was presented to the Portfolio Committee on Police around 2009 and early 2010, the committee took a decision to split the Bill in order to firstly deal with the fingerprint issues.
Thereafter the committee, accompanied by the police, went on an oversight visit or study tour to Canada and to the United Kingdom in 2011. Only then were we able to give information regarding the findings that we had been able to make. We were then able to share what we had observed and learnt with the SAPS and the Minister.
We are now in 2013, and that was 2011. During the course of 2012 the department was then actively putting together this complex piece of legislation. Therefore, to come here and say to us that this Bill was left lying, that the ANC is not serious and that the Minister is not serious, is factually incorrect.
I would like to suggest that the hon Kohler-Barnard stop being economical with the truth because it is wrong. We should be factual. The ANC supports this Bill.
Chairperson, I would like to thank the members. In fact, this is supposed to be a simple and straight-forward Bill, because it goes to the heart of the fight against crime.
As other members have said - hon George spoke about it - the training for specialisation will be done to ensure that we up our game, particularly in this area.
The breakthrough, particularly against sexual offences, as hon Ndlovu has said, is very noble. The modernisation in the fight against crime, as has been said by hon Swart; the issues of women benefiting, but generally people who are victims of violent crimes; and the strengthening of the hand of the SAPS, as hon Schneemann has said, are the basic things we need to do.
The hon Kohler-Barnard from the DA is confusing the disciplines within forensics involving DNA. She takes the DNA and drug analyses and makes it one thing, then after multiplying it she says there is a huge backlog.
We have to take her through the ABC. The backlog was 0,06% on DNA analysis in 2011-12; 0% on trichology; and 0,02% on drugs. Now, by lumping everything together ... [Interjections.]
It is your answers, those are your answers!
... because you want to make government and everybody look bad, you are going to be exposed for what you are. All members of the committee are saying one and the same thing: We need this Act. [Interjections.]
Order! Order, please!
It is going to go on. Thank you very much. [Applause.]
Debate concluded.
Order, hon members! Are there any objections to the Bill being read a second time?
HON MEMBERS: No!
If there are no objections, the Bill is agreed to. The secretary will read the Bill a second time.
House Chair, may I address you?
Please.
I would like, before the question is put - or maybe you want to put the question - to check whether there is a quorum in the House for this Bill to be passed.
Where are the Whips? Can the Whips look into this, please?
May I request that we use the electronic system, sir, to check whether there is a quorum? [Interjections.]
Hon members, I want to request that you to press the "yes" button, simply for ... [Interjections.] Order, please! Order! We just want to check. Please take your seats, hon members. Order, hon members!
Hon members, take your correct seats, so that we can check correctly. Order, please! [Interjections.] Hon members, just do as you are requested, so that we can check and tell you whether we have a quorum or not. [Interjections.] Now that you are seated correctly, press the "yes" button, as I requested.
HON MEMBERS: Yes!
Hon members, we only have 175 members in the House, so we do not make up a quorum. [Interjections.]
Order, please! Either I am going to go on and ask, and see whether a division is called for so that we ring the bells, or we can ring the bells now. [Interjections]. Can we then ring the bells for five minutes? [Interjections.]
May I address you, House Chair? May I enquire why you are ringing the bells? We have not called for a division.
I said I can go ahead until you call for a division.
No, the DA is not calling for a division. We actually support this piece of legislation, but the point that we want to make is that there is not a quorum to pass the Bill.
I agree with you.
Yes.
So, you are saying that we should go on, then, and that you are not going to call for a division?
The DA is not calling for a division, but we would like to establish what the quorum is, because without a quorum, the Bill cannot be passed.
Then, madam, I think we have to take the procedure further. I asked you, and you said that you wanted a quorum, and I said that there is no quorum at the moment.
Now, I want to go ahead and ask for the support of the Bill. Simply state yes or no. Then, if you say no or yes, I will be calling for the ayes and the noes. Then you would have to call for a division and we will go ahead and vote.
If there is no quorum, we cannot take it further. [Interjections.] So, let me follow the procedure. That would be a shortcut, simply to say that it is not going to be passed. Are there any objections to the Bill being read a second time?
HON MEMBERS: No!
If there are no objections, the Bill is agreed to.
Hon members, my attention has been brought to the Rules here. I was correct the first time when you said that there was no quorum, and I requested that we ring the bells for at least five minutes. Then we come back and take it from there. If there is no quorum even then, the Bill cannot be passed. That was the suggestion I put forward first, and the Rules support that. [Applause.]
Chairperson, we just wanted to say that it is entirely in order. You are not the first person to be duped by the DA. [Interjections.]
Hon members, if I knew what the word "duped" meant, I would respond. It sounds a little sad.
Yes, as a point of clarity: What does the Deputy Minister mean? [Interjections.] No! On a point of order; may I address you on a point of order?
Order! Order, please! What is your point of order?
Chairperson, the Deputy Minister made a ridiculously stupid comment that you are not the first person to be duped by the DA. I am asking for clarity on that silly statement. [Interjections.]
Hon member, I will take my time to look at that in the Hansard. The bells will now be rung for five minutes.
Chairperson, certainly the bells should be rung, but I would ask you to consider whether it is parliamentary, no matter how one feels about any comment by any member, to refer to an hon member as "ridiculously stupid". I really believe that is unparliamentary and should be ruled upon. [Interjections.]
Order, hon members! Order!
I think, Chairperson, we should ask all the members of the House to behave with the decorum the nation expects of members. The screaming by members on all sides of the House doesn't do any of us proud. I do believe that the comment that was made about hon Chohan is absolutely unacceptable.
Thank you, hon Minister. Order, please! Hon Minister, I agree with you 100% in terms of comments we make and that we need to respect each other as hon members of the House.
On both sides, we do have these kinds of comments. We don't have angels on one side and culprits on the other. As I promised, I will look at the Hansard and see what the problem could be with the comments that were made, including the comment that was made by the hon member herself.
The attention of the Presiding Officer having been drawn to the absence of a quorum, in terms of Rule 26 the bells were rung for five minutes.
Order, hon members! Let us be seated. Please press the "yes" button again so that we can ascertain whether we have a quorum. Order, please! Can't we just do that? Have you not pressed the "yes" button, as I requested? [Interjections.] Please press your "yes" button.
HON MEMBERS: Yes!
Thank you.
Hon Chair, what I am concerned about is the possibility of some of the technology not working because in the past, when we have voted, some members' ... What do you call these things?
HON MEMBERS: Machines.
... machines were not fully operative.
Can we check which machines are not working? [Interjections.] Can we check and count if the machines are not working? I think we are honourable members here; we need to trust one another. I think we need to do that. We need to trust one another as honourable members. [Interjections.]
Hon members, let me re-emphasise this: We are not voting on the Bill now. We are simply trying to ascertain whether we have a quorum, as was requested, so please do the honest thing and press the "yes" button again. There are those who doubt. Don't doubt - we are not voting, but simply ascertaining whether we have a quorum.
Hon House Chair, may I address you, please?
Just a moment. Even if the machine is not working, just press the button, because it will record that. Just press your "yes" button. Deputy Chief Whip, you wanted to ask something?
Yes, Chairperson. I want to propose that we do a head count, because the pressing of the button is not assisting the process. Some people are not doing it. [Interjections.]
Order, order! Before we do the head count, can you please press the button. [Interjections.] Thank you. Hon members, order, please! Again, we do not have the quorum we require. We have 193 members so we do not have a quorum. [Interjections.] Order, please! What I am going to do is to suspend the decision until further notice. The earth is not falling - we have done that before.
A quorum not having been attained the question was postponed.