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New Bill proposes DNA samples be extracted from sexual offences and serious crime prisoners

Prisoners live in overcrowded cells in Pollsmoor Prison. Some inmates have been awaiting trial for eight years. Picture: Henk Kruger/African News Agency (ANA) Archives

Prisoners live in overcrowded cells in Pollsmoor Prison. Some inmates have been awaiting trial for eight years. Picture: Henk Kruger/African News Agency (ANA) Archives

Published Feb 16, 2022


Cape Town - Prisoners convicted of serious crimes and sexual offences will no longer have an option to refuse to have their DNA samples taken while they serve their prison term or before their release.

In instances where they refuse, the SAPS commissioner will be empowered to lodge an application to a judge or a magistrate for a warrant against a prisoner who refuses to submit to the taking of his or her DNA sample.

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Those authorised to take the samples, assisted by correctional officials, will be allowed to use minimum force against those who refuse samples to be taken from them.

This emerged when the police portfolio committee was briefed about the Criminal Law (Forensic Procedures) Amendment Bill, which is aimed at the taking of DNA samples from all persons convicted under Schedule 8 offences.

The offences include murder, rape, sexual assault, any sexual offence against a child or a person who is mentally disabled and child stealing.

The briefing comes after President Cyril Ramaphosa announced the commencement of parts of the Criminal Law (Forensic Procedures) Amendment Act, which provide for police with additional tools around DNA collection and usage in capturing and prosecuting criminals.

Ramaphosa said a suspect arrested and charged with a Schedule 8 offence would be required to provide a DNA sample which will be uploaded on to the National Forensics DNA database from January 31.

Briefing the committee yesterday, Civilian Secretariat for Police chief director Dawn Bell said the act provided for the taking of the DNA samples within two years from the date of commencement of the Act in 2015.

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Bell said the police were unable to complete the process of taking the samples from all convicted Schedule 8 prisoners within the stipulated two-year period.

The bill was finalised late in 2017 and in May 2018 the process was suspended pending consideration of the number of Schedule 8 offenders to have samples taken and also ask the Home Affairs Department to extend the taking of DNA samples of all citizens.

“This failure resulted in a large number of persons convicted and sentenced for imprisonment in respect of Schedule 8 offences, upon having served their sentences to be released without DNA samples having been taken from them,” Bell said.

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She also said when the initial two-year period for taking DNA samples of prisoners expired, it became necessary to amend the act in order to again empower authorised officials to take samples from the convicted prisoner’s sentences of imprisonment.

“A significant obstacle encountered by the police in taking buccal samples from such persons serving sentences was the refusal by such persons to have their buccal samples taken.

“This clearly is as a result of the fear that they could be linked with other unsolved cases where their DNA samples have not been taken before.”

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The proposed bill was only introduced in Parliament in December last year and was then referred to the portfolio committee for consideration.

Bell said the bill has done away with the period allowed to take DNA samples for those already convicted under Schedule 8 offences to avoid recurrence of further amendments.

She said DNA samples will be taken before the release of the person, if the sample had not already been taken upon his or her arrest, as well before the release of a person either on parole or under correctional supervision by a court.

In terms of the proposed bill, there will be mandatory reporting by the SAPS and Department of Correctional Services to ensure implementation takes place and accountability is enforced.

The national commissioner of the Department of Correctional Services is expected to report the prescribed information of Schedule 8 offenders to his SAPS counterpart at least three months prior to the planned release date of such persons.

The commissioner will also be required to report on the implementation of the requirement for taking of DNA samples from convicted Schedule 8 offenders on a quarterly basis.

The SAPS commissioners will be required on a quarterly basis to submit a report to the minister on the progress made concerning the taking of samples.

Bell said SAPS commissioners, in consultation with the Correctional Services counterpart, are expected to issue and publish national instructions regarding the use of minimum force when DNA samples are taken from prisoners.

She also said there is a “requirement of a medical examination and treatment after use of force and reporting to the inspecting judge of any use of force”.

Bell said they have done research on use of minimal force in other countries and found that Australia, Netherlands Japan, China, Germany, Kenya and Malaysia used it where and when necessary.

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Political Bureau