Acting Chairperson of the Portfolio Committee on Police, Ms A Van Wyk,
Honourable Members of the Portfolio Committee on Police,
Civilian Secretary for Police, Ms J Irish-Qhobosheane,
Senior members of the South African Police Service present,
Ladies and gentlemen.

Crime globally becomes more complicated and criminals are in many instances ahead with the use of technology in the commission of crime, not being bound by budgetary constraints and with no respect to human rights. This includes methods of communication, false documentation, travel and electronic gadgets used for various purposes.

The use for DNA in solving crime, in particular serious violent crime is an imperative in law enforcement. Although DNA is being used for many years, there is a dire need for a proper regulatory regime, including adequate control and safety measures in that regard. The Bill before this Portfolio Committee on Police is a highly technical one. 

We however feel comfortable about the considerations as a result of the close involvement of the Committee into the final development of policy relating to this Bill. The Bill followed the introduction during 2009 of the Criminal Law (Forensic Procedures) Amendment Bill, 2009, which dealt with both the issues of the use of fingerprints in combating crime and the use of DNA in combating crime.

The 2009 Bill was as a result of the recommendations by the Office for Criminal Justice System Reform. Following the concerns raised by the Portfolio Committee, only the part of the Bill that deals with fingerprints was finalized. This led to the adoption of the Criminal Law (Forensic Procedures) Amendment Bill, 2010, and the putting into operation of Act No. 6 of 2010 on 18 January 2013.

The intervention by this Committee to ensure alignment of the Bill with both the Constitution of the Republic of South Africa and the practice in constitutional democracies, led to a study visit by the Portfolio Committee as well as key officials dealing with DNA in the combating of crime, to Canada and the United Kingdom.

This study visit led to the development and finalization of a policy on the establishment and administration of a National DNA database. In re-drafting the Bill, cognisance was taken of particular policy direction given by the Committee in respect of the fingerprint legislation where there are similar principles at stake as in this Bill. The Bill presently before the Portfolio Committee is a translation into legislation of the formulated policy.

In the Bill particular attention is given to the limitation of the use of DNA to protect against unnecessary inroads being made into human rights, issues pertaining to the safeguarding of the DNA database as such in terms of security measures, unlawful access to the database as well as proposing a serious criminal offence in respect of the abuse of information pertaining to DNA samples. 

The Bill provides for the same type of protection as in the case of fingerprints, in respect of children. In taking DNA samples the following must therefore be observed:

1. Due regard must be taken to the personal rights relating to privacy, dignity and bodily integrity of the child
2. it must be taken in a private area, not in view of the public
3. It  must be ensured that a parent or guardian of the child, a social worker or an appropriate person is present
4. the child must be treated and addressed in a manner that takes into account the child’s gender and age.

The Bill also ensures that DNA buccal samples will be taken by police officials who have been trained to deal with the taking of such samples in line with prescripts of the Minister of Health in this regard. 

The Bill affects the Department of Justice and Constitutional Development as it amends the Criminal Procedure Act, 1977 (Act No. 51 of 1977), in addition to amending the South African Police Service Act, 1995 (Act No. 68 of 1995), the Firearms Control Act, 2000 (Act No. 60 of 2000) and the Explosives Act, 2003 (Act No. 15 of 2003).

Furthermore the Department for Correctional Services is proposed to be involved in the taking of buccal swabs of persons who have been convicted of Schedule 1 offences.  In view of the close relationship with medical issues, the Department of Health is also a major stakeholder in respect of the Bill.  The redrafting of the Bill involved all the said departments which were closely involved in the process.

The main essence of the Bill is that it formally establishes a DNA database within the South African Police Service, where DNA samples will be analysed and the results of such analysis be kept on record for the purposes of detection of crime and the investigation of cases. 

Most importantly to link crime scene samples with samples of suspects. It could furthermore assist in the conducting of prosecutions, identification of unidentified human remains and the identification of missing persons.

The DNA database will consist of various indexes, namely the Crime Scene Index, of profiles derived from samples taken on a crime scene, the Offenders Index of profiles derived from samples taken from offenders, the Volunteer Index, of samples derived from samples obtained from volunteers (for examples, in tracing or identifying a missing child), the Elimination Index of profiles derived from samples obtained from persons involved in the collection and analysing of samples.

The Bill provides for the comparative analysis of DNA samples and keeping the profiles which result from such analysis. Crime scene samples will be kept indefinitely. The Bill furthermore provides for international cooperation with law enforcement agencies.  

The Bill, as is the case with fingerprints provides for the expungement of records in the case where the prosecution decides not to prosecute or where a person had been found not guilty of an offence.

In respect of Parliamentary oversight, the Bill provides that the National Commissioner of Police must  annually provide a report to Parliament in respect of the performance of the National Forensic DNA Database of South Africa (NFDD) and the use of forensic DNA evidence in the investigation of crime, of which this report must be tabled in Parliament.

Furthermore, as the Minister I must, not later than five years after the commencement of section 15W of the Bill, submit a report to Parliament on whether any legislative amendments are required to improve the functioning of the NFDD and the use of forensic evidence in the combating of crime.

In respect of access to and security of the DNA Database, the National Commissioner of Police is charged with the responsibility to take appropriate, reasonable, technical and organizational measures to prevent loss to or unauthorised destruction of information on the database and unlawful access thereto.

In this process the National Commissioner of Police must also identify reasonable, foreseeable internal and external risks to information on the database, establish and maintain appropriate safeguards against the risks identified. Cognizance must be taken in this regard of generally accepted information security practices and procedures.

Of particular importance is the establishment of a National Forensic Oversight Board consisting of representatives of the Department of Health, Secretary of Police, Department of Home Affairs, Department of Correctional services, Department of Justice and Constitutional Development a total of two representatives appointed by relevant non-governmental organisations.

The South African Human Rights Commission may also be invited to attend meetings of the Oversight Board. Very specific functions of the Board are spelt out in the Bill such as:

1. the monitoring of implementation of the legislation,
2. making proposals on the governance and integrity of the NFDD,
3. making proposals on the conducting and performance of forensic DNA analysis and operations of the NFDD,
4. monitoring of compliance with ethical and privacy issues, propose minimum quality standards to be maintained in the NFDD,
5. promote public accountability and transparency,
6. advice the Minister on reviewing legislation, regulations, policy and protocols relating to the use of DNA to combat crime.

In respect of an implementation plan, such a plan has been developed in tandem with the Bill, and will be shared with this Committee before submission of the Bill to Cabinet. It has also been costed.

Although it is realised that the implementation of the Bill will be costly, provision has been made for the implementation and as the Bill will address to a large extent crimes related to bodily integrity such as murder and rape, it is deemed imperative that the Bill be promoted and implemented.

As we conclude, we are acutely aware of the challenges still facing the criminal justice system, thus we are under no illusion that there are quick fix solutions to these challenges. We do believe that over the last few years, we have begun to put in place processes that are not only yielding some successes, but will also become the building blocks for the kind of police service we envisage. 

It is increasingly becoming obvious that things cannot be done the same old way. Things must be done smarter and faster. We therefore believe that the Criminal Law (Forensic Procedures) Amendment Bill is an important catalyst in helping us in our efforts of crime-reduction.

I therefore hereby formally introduce the Bill to the Committee.

I thank you!