Criminal Law (Forensic Procedures) Amendment Bill: public hearings

Meeting report

The Chairperson noted apologies from Dr P Groenewald (FF+), Ms M Molekwa (ANC) and Ms S Patrein (ANC).

The Chairperson said that the Criminal Law (Forensic Procedures) Amendment Bill, 2021, was introduced in Parliament and referred to the Portfolio Committee on Police for processing on 20 December 2021. The Bill aims to address a lacuna by removing the time limit on the taking of buccal samples from already imprisoned Schedule 8 offenders. The Committee received an introductory briefing on the Bill from the Civilian Secretariat for Police Service (CSPS) on 16 February 2022. The closing date for submissions was Friday, 11 March 2022. Eight submissions were received, of which five were substantial. It is worth noting that during the 2013 process, the Committee received 45 written submissions and the entire set of submissions was in support of the Bill. The nature of the Criminal Law (Forensic Procedures) Amendment Bill, 2021, is technical and the Committee does not expect many more submissions.

It should further be noted that most of the submissions raised serious concerns about the capacity of the South African Police Service (SAPS) to process the DNA samples. The concern is shared with the Committee and it has had several meetings on this matter, as well as other matters related to the challenges and the serious concerns about the capacity in SAPS. The Committee is committed to addressing the challenges faced in SAPS and will ensure that the Forensic Science Laboratory (FSL) division implements the turnaround strategy and improve its effectiveness. The Committee has been consistent and persistent in monitoring the FSL. She expressed that the concerns that the Committee has with the FSL are so enormous, it has not yet met the expectations of the Committee.

Briefing on public submissions on the Criminal Law (Forensic Procedures) Amendment Bill

Ms Nicolette van Zyl-Gous, Acting Content Advisor and Committee Researcher, briefed the Committee on the public submissions for the Bill. She said that due to the technical nature of the amendment bill, not many submissions were expected.

The Committee received eight submissions, which were from:

● Ms Laura Heathfield

● Ms Diana Thomson

● Legal Aid South Africa

● Ms Vanessa Lynch

● African Criminal Justice Reform (ACJR) / Dullah Omar Institute

● Rape Crisis, Cape Town Trust

● Congress of South African Trade Unions (COSATU)

● Judicial Inspectorate for Correctional Services (JICS)

From the eight submissions, five were substantial and were invited for oral presentation, but not all could attend. Presentations will be from Ms Lynch, Rape Crisis and COSATU. Five submissions are in support of the amendment Bill and two are not in support of the amendment Bill.

Ms van Zyl-Gous briefly highlighted the submissions that were substantial, but where the presenters were not able to attend:

Submission: Legal Aid South Africa

Legal Aid South Africa is in support of the Bill and welcomed that it was only for Schedule 8 offenders. Legal Aid South Africa suggested that the Bill should take cognisance of the audi alteram partem rule, therefore a judicial warrant for collecting a buccal sample from a person should only be issued upon notice and after an opportunity for a hearing. It also raised the significant challenges with the logistical capacity of SAPS and that it would be a significant administrative and analytic burden.

Legal Aid South Africa said that in the United Kingdom experience, it was found that widening the net does not contribute to more crimes being solved.

Legal Aid South Africa concluded that if there was a choice between increasing the collection of subject samples and increasing funding for expert crime analysis, the latter should be given preference.

Submission: African Criminal Justice Reform (ACJR)

The African Criminal Justice Reform did not support the Bill, based on the serious capacity constraints in the SAPS. It was indicated that the taking of samples from a person without their consent is prima facie an infringement of bodily integrity and that it might be construed to be a fishing expedition.

ACJR indicated that buccal samples are quite invasive and wanted clarity on the costing of the Bill and whether the R78.4 million costing for the Bill would take into account the administrative burden that is placed on the Department of Correctional Services. ACJR also indicated that the cost of the Bill is actually equal to 35% of the rehabilitation of the convicted offenders and if samples cannot be processed then money is better spent on rehabilitation or other pressing priorities.

ACJR recommended that the Bill be held in abeyance until the Committee has been satisfied that the SAPS has capacity to implement the Bill.

Ms van Zyl-Gous said that the SAPS and CSPS will have an opportunity to respond to the submissions on Friday, 18 March 2022. Deliberations will start and it is expected to conclude at the end of March 2022, thereafter the amendment Bill will be sent to the NCOP for concurrence.

Discussion

Mr A Whitfield (DA) asked if there was a representative from the DNA Board present in the meeting, as this would be a meeting that the DNA Board would have an interest in.

Ms van Zyl-Gous replied that she did speak to the chairperson of the DNA Board who indicated that they could not attend this meeting and that they could not make a submission. The chairperson of the DNA Board indicated that the DNA Board is in agreement with the Bill, but that she has a court appearance today and could not attend the meeting.

The Chairperson said that the Committee would express this concern in writing to the DNA Board because she felt that the DNA Board could have sent a representative if its chairperson could not be present.

Submission: Congress of South African Trade Unions (COSATU)

Mr Matthew Parks, Parliamentary Coordinator, COSATU, said that while COSATU supports this progressive Bill, COSATU believes that two amendments are needed to further strengthen it, in its provisions dealing with when and from whom buccal samples shall be taken.

COSATU is concerned with the Bill's limitation on collecting buccal samples. Serious criminal offences are excluded by limiting the collection of buccal samples to persons charged for, convicted of, and imprisoned for only Schedule 8 offences.

COSATU proposes that:

● The Bill be amended to require SAPS to take buccal samples of all persons who are charged. Thus, remove reference to Schedule 8 in the Amended Act.

● The Bill be amended to require buccal samples to be collected from all persons convicted and imprisoned irrespective of which Schedule Offences the person was convicted of and imprisoned for. 

(See submission for detail)

Submission: Ms Vanessa Lynch

Ms Vanessa Lynch said that she has been involved in the drafting of the Bill at the time of its promulgation. She had been researching it for the last four years, in terms of the constitutional validity of the Act (which this Bill refers to), as well as certain provisions and a comparative search around the world in terms of what other countries have done with their DNA legislation. She served as the deputy chairperson of the DNA oversight Board, which was responsible for highlighting the importance of this Bill being brought before this Committee. Ms Lynch expressed that having been the deputy chairperson of the previous DNA oversight Board, she is deeply disappointed that they have not attended the meeting today; if they cannot represent themselves in this meeting then she does not know how they would represent themselves to the public.

Ms Lynch concluded that her submission fully supports the Criminal Law (Forensic Procedures) Amendment Bill, 2021. The rate of recidivism in South Africa is one of the highest in the world, meaning that many convicted offenders are more likely to be involved in crime than the general population and that their inclusion in the Convicted Offender index in the National Forensic DNA Database (NFDD) is critical. Thousands of convicted offenders are being released from incarceration without their buccal samples having been taken, potentially leaving them unlinked to previous crimes and future crimes and the failure to capture this data undermines an essential element of the NFDD.

It is without question that the Bill should be prioritised as being one of the most crucial pieces of legislation in the crime-fighting arsenal available to SAPS today. The promulgation of this Bill will, moreover, counteract the opportunistic reliance by convicted offenders on the apparent limit of the two-year period for the taking of buccal samples from the prison population, as well as dealing with any refusals to cooperate.

(see submission for detail)

The Chairperson thanked Ms Lynch for the powerful presentation. She said that the Committee Members have been working really hard to get this Bill to come to Parliament. The Committee is totally dependent on when Cabinet or the member of the Executive brings the Bill to Parliament. The Committee is also dependent on how speedily the NCOP processes the Bill and when the President will sign it. The Chairperson said that she would personally contact the DNA Board to ensure that they attend the meeting on Friday, 18 March.

Submission: Rape Crisis, Cape Town Trust

Ms Jeanne Bodenstein, Advocacy Coordinator, Rape Crisis, said that Rape Crisis has made its submission as an organisation that has been supporting rape survivors since 1976. The submissions that Rape Crisis makes are really about the experience of rape survivors and their sense of access to justice. When evaluating the Bill, Rape Crisis questioned whether the proposed amendments would contribute meaningfully to the purpose of the Bill and its overarching goal of increasing prosecutions.

She said that Rape Crisis had concerns on the capacity of the Forensic Science Laboratory to analyse samples; and the impact on the access to justice for survivors of rape.

By passing this Bill, the backlog will increase, hampering the conclusion of current cases before court, which is likely to amount to wasteful expenditure if the state does not have the capacity to process these.

Recommendation and conclusion:

● Rape Crisis recommends that the Bill be held in abeyance until the Committee has been provided with clear evidence that SAPS has the capacity and willingness to process the DNA samples in current cases and that the number of outstanding DNA samples does not exceed the average number usually taken during one month.

● It is recommended that other avenues be explored to add capacity to analyse DNA samples i.e. laboratories located at the University of Cape Town.  

(see document for detail)

Discussion

Mr A Whitfield (DA) thanked all of the contributors, as their inputs have enriched the Committee's understanding of the broader issues and the impact of the Bill. He said that the Committee has prioritised this Bill for good reason and it has been unnecessarily delayed for far too long. The overwhelming support in the public submissions is certainly encouraging, as well as some of the suggestions that the Committee received from those who did not necessarily support the passage of the Bill at this point.

He said that the Committee has been extremely deliberate in the absence of any meaningful assistance of the new DNA Board. The Committee had been extremely insistent and deliberate in demanding monthly reports from SAPS on their turnaround plan, which was initiated on the instruction of the Committee. The Committee had played a very active role in ensuring that the turnaround plan, which had been adopted by the SAPS is being implemented and that the improvements that it sees as the direct result of the Committee's actions. This is to respond to Ms Bodenstein’s concerns that the Committee “must” ensure that it is able to see evidence of improvement. In these monthly reports, the Committee was seeing improvements in contract management, the filling of vacancies and there was an improvement in reducing the backlogs. This Bill should be considered concurrently with existing plans to reduce the backlog and to continue supporting the forensic division.

The Committee has also promoted public-private partnerships with universities and external labs, which are currently in place. The President has a task team dealing with this matter and it is receiving attention at the highest levels of the government. Mr Whitfield said that he thought there was an opportunity to advocate for a more transparent database on the backlog as an additional accountability tool, which could certainly assist to put pressure on the forensics division and encourage more public engagement and participation on this issue.

He said that the Committee should recommit itself to a budget focus on this forensics division, and appeal for the Executive to really scrutinise the forensic division’s budget allocation, to make sure that there was sufficient funding. He said that the target for analysing DNA case exhibits was set out in the SAPS annual performance plan, so he did not think that it is realistic to expect the monthly amount that comes in to be the monthly amount that is concluded, the target is 80% within 90 days. It is not possible to keep the backlog current to within a month, even when the labs are fully capacitated, because of the horrific and high rates of violent crime. The fact that there is a backlog over 90 days is extremely concerning, although there is commitment to get it back within the 90 days and it is moving in the right direction.

Mr Whitfield said that he empathised with Ms Bodenstein, as he had also had the awful experience of having to deal with victims, victims’ families and survivors of the most horrific crimes and the delays in the system. He was also aware that in June last year, the Committee received a response from the Minister of the Department of Correctional Services to say that almost 100 000 convicted Schedule 8 offenders were released without having their DNA sampled. It simply cannot be countenance that this continues as it is a gross miscarriage of justice. He does not believe that this Bill will necessarily have a devastating impact on the backlog, given the history of prioritising those convicted offenders who are to be paroled. A similar system that had been indicated by Ms Lynch could be used to mitigate an overwhelming flood of reference samples.

Mr Whitfield thanked Mr Parks for his considered input and support of the Bill, but he appealed that the proposal for buccal samples to be taken from all persons convicted and imprisoned irrespective of which Schedule Offense be something that the Committee consider for future and that the Committee does not unnecessarily delay the passage of the Bill but rather focus on the original intention of this amendment Bill. As improvements are seen in the forensics division capability, then the Committee could then consider adding other Schedule Offences to the legislation.

Ms B Marekwa (ANC) said that after listening to the submissions, she did not hear any of the presenters say that they did not want the Bill. In some way and in principle, there is agreement that the submissions appreciate and welcome the Bill, but there are issues that needs attention and which needs to be looked into to make sure that the Bill contains everything that will assist the law enforcement officers. Most of the submissions addressed the capacity of the FSL, which is not just about the budget but it is about the human capital. There would need to be more people employed to deal with the backlog, because crime happens around the clock.

She observed that most of the presentations addressed the possibility of offenders reoffending. She said that it does not just refer to Schedule 8 offences but the possibility of reoffending is also with petty crimes. She does think that the Bill will greatly assist to avoid repeat offenders of serious crimes, coming in and out of the correctional facilities. She said that the Bill not only needs attention from the Department of Police but from the entire criminal justice cluster, including the Department of Justice and Constitutional Development and the Department of Correctional Services.

Mr H Shembeni (EFF) said that he observed that there was a great concern in the present backlog at the FSL. He agreed with Mr Whitfield, that there has been an improvement with the forensics division. The most important reason for the Bill to be passed is for the benefit of the victims because crime is committed every day. He suggested that the budget should concentrate on capacitating the FSL with day and night shifts. The FSL should work day and night to ensure that there are necessary results. He said that the Bill should be passed so that the FSL can deal with the incoming cases, especially where buccal samples can link a Schedule 8 offender to other crimes that were committed.

Mr A Seabi (ANC) agreed with the Chairperson’s comment that the DNA Board would need to attend the meeting on Friday so that they can provide further clarity on building capacity. He understands that the concern of the backlog is very close to the Minister of Police’s heart and he is working very hard to ensure that the backlog is addressed.

Mr Seabi agreed that he had not heard any radical opposition to the Bill being passed. He agreed with Mr Whitfield’s comment that the concern of the capacity should not delay the passing of the Bill and that the capacity was a work in progress.

He asked the presenters for their opinion on the use of “minimum force” on offenders refusing to provide buccal samples.

The Chairperson expressed her appreciation to the presenters for their time and efforts in attending the meeting. She will ensure that the DNA Board and the FSL do their presentations on Friday. The Committee received monthly reports, but she was still unhappy with what is happening.

Response

Mr Parks referred to Mr Seabi’s question and replied that COSATU would support the use of minimum force. When a person is imprisoned or arrested then that person is detained and there is a limitation on that person’s rights, which implies that minimum force can be used by the police or correctional services officers to enforce the law. One can argue that it is a limitation on the detainees’ rights, but the rights of society, victims and future victims need to be protected. COSATU would support that the police officers and correctional services officers be fully empowered. There is nothing unreasonable about the use of minimum force as there is legal precedence to it. The fact that a person is imprisoned means that minimum force can be utilised by the state to detain the person.

In response to Ms Marekwa, he said that there were previous Constitutional Court judgements that uphold the right of the police to collect such forensic information. He would think that the Constitutional Court would support these straightforward provisions.  

In terms of Mr Whitfield’s remarks, Mr Parks replied that there is support for the Bill and its passage but he asked that it be done holistically and comprehensively. He expressed concern that the delaying of amendments to a future date, might take five to ten years and will not happen within the sixth administration of this government. He suggested that if there should be amendments to the Bill that it should be done now instead of being delayed. He maintained that COSATU’s proposal was really just the deletion of the reference to Schedule 8, to require buccal samples to be collected from all persons convicted and imprisoned irrespective of which Schedule Offences.

He explained that fingerprints are similarly taken from all persons that are arrested or imprisoned without distinguishing the level of crime. The unintended consequence of not deleting the reference to Schedule 8, is that it would exclude other very serious criminal offenses classified under Schedules 1 to 7, for example, bestiality, incest, having sex with a minor, sexual exploitation and grooming, child pornography, attempted murder, corruption, gangs, and so on. He said that SAPS should not have their arms tied behind their back but SAPS should be fully capacitated to do what they need to do and enforce the law to all offenders. The database should be flooded with as much intelligence as possible so that the police can be well resourced, otherwise it would be minimising the very positive impact that this very progressive Bill can have.

Mr Parks agreed with Mr Whitfield’s comment that the Committee prioritises the forensic interventions and building the capacity of SAPS to empower the police and turn the tide against corruption. He said that if they do not put concerns into bills and laws, then the government will not do it, because the government will not be compelled to do it.

He pleaded that the Bill be looked at progressively to remove the reference to Schedule 8, to require that buccal samples be collected from all persons convicted and imprisoned irrespective of Schedule Offences.

Ms Lynch referred to Mr Parks' response and said that the very first draft of the Criminal Law (Forensic Procedures) Act interestingly covered all offenses, but there was concern about the capacity issue at the time and it was then limited to the most serious offences but this has further created an administrative burden to differentiate between the different types of Schedules. From an administrative perspective, she does think that most people who are arrested and charged, have dealt a pretty serious crime and often times the minor crimes can be related to much more serious crimes. If this is not the platform then hopefully the proposal to delete reference to Schedule 8 does not delay the Bill but if it is an easy fix then she does think that it should be done; or perhaps later when the DNA Board put their recommendations for improvements to the Act, then she certainly agrees that everyone arrested and charged and all convicted offenders should have their DNA samples taken. She thought that the SAPS would welcome the opportunity because they currently struggle with differentiation.

On the refusals, she replied that she would be happy to send to the Committee’s Researcher the legislation throughout the world that has a clause about “minimum force”, she explained that these laws explain what these countries do, for example, they pluck out hairs, etc. and that South Africa’s use of minimum force is fairly mild. Albeit, there is the SAPS Act which in any event provides the option for SAPS to use reasonable force under the circumstances, even if this was not included in the Criminal Law (Forensic Procedures) Amendment Bill, clarifying it in the Bill makes it very clear to the convicted offenders that this is not an option and that their DNA sample must be submitted. In all legislation, even of the most conservative countries which have similar Bills of Rights and Constitutions such as Canada, minimum force is allowed. She would be happy to send literature to support this.

In response to the backlog crisis, she does think that the DNA Board, as well as the Committee, needs to explore and push SAPS to enter into Memorandums of Understanding (MOUs), for instance with the Forensic Pathology Institute in Observatory, which is under the Department of Health and has potential funding from USAID to help and assist them with GBV cases and reference sampling. SAPS should be willing to enter into MOUs that allow the opportunity for these kinds of partnerships to assist them with capacity. She expressed that it was really good to see that the Bill was progressing because she knows that this Committee had waited for it to come before them.

The Chairperson added that the Committee had not just waited for the Bill to come before it, but she assured that the Committee has worked hard to get the Bill before Parliament. She agreed with Mr Parks' comment that it was really tough to get a Bill before Parliament.

She agreed with Ms Bodenstein that the Committee needs to receive evidence from SAPS that the FSL has sufficient capacity to address the backlog.

Ms Bodenstein said that she had heard the sincere efforts of the Committee to ensure that SAPS addresses the backlog in its laboratories. She assured the Committee that as it was practicing oversight over the SAPS that the Members have to be assured that civil society will continue to practice oversight over this Committee. She believed that it would be a real show of allegiance to the plight of victims of crime if this Committee can ensure that the issue of the backlog was dealt with swiftly and effectively.

The Chairperson thanked the presenters for their presentations and insightful inputs.

Adoption of minutes and Oversight Report

The Committee's minutes of 9 March 2022 was considered and adopted.

The Chairperson added that she had tried her best to have the oversight visit to Bloemfontein and the Free State, but she has been told by Parliament that there is no money and the Committee would have to wait until the next financial year.

She had also been told that the Committee cannot have its strategic planning session physically and that it would need to be done online. She proposed that the strategic planning session should continue, even if it was online.

She also proposed that the Committee submit its budget for the next oversight visit, so that if the money becomes available then the Committee could have its oversight visit to the Free State.

Mr Seabi said that it would have been preferred to have the strategic planning session physically, to interact in that manner but the Committee was not sure when it would have the funds, which would further delay and compromise the programme of Parliament. He agreed that the Committee continue with the strategic planning session online.

The Committee considered and adopted the Draft Oversight Report on the Gauteng visit.

Mr Whitfield said that he was not at the oversight but he asked that the report indicate his apology.

The Chairperson agreed that the apologies should be formally noted.

The meeting was adjourned.