Passing the Criminal Law Bill is crucial for policing and justice

The release of prisoners back into society before having a search of their DNA profile recorded on the Convicted Offenders Index of the National Forensic DNA Database potentially provides the opportunity for some to commit further offences without detection, says the writer. Picture: African News Agency (ANA) Archives

The release of prisoners back into society before having a search of their DNA profile recorded on the Convicted Offenders Index of the National Forensic DNA Database potentially provides the opportunity for some to commit further offences without detection, says the writer. Picture: African News Agency (ANA) Archives

Published Apr 2, 2022


By Vanessa Lynch

What today should have been a celebration of the adoption of a critical weapon in South Africa’s arsenal of crime-fighting tools, instead ended in another infuriating delay in passing the Criminal Law (Forensic Procedures) Amendment Bill (B25-2021) (CO Bill).

The reasons for the new delay cited by the Portfolio Committee for Police in Parliament were concerns about the SAPS’s capacity to process DNA profiles by the FSL (Forensic Science Laboratory). While these concerns relating to the existing DNA backlog are valid, it should not be the reason to delay the adoption of this legislation.

The rate of recidivism in South Africa is one of the highest in the world, meaning that COs (convicted offenders) are more likely to be involved in crime than the general population and that their inclusion in the CO index in the National Forensic DNA Database is critical.

The delay in processing this CO Bill has reduced the overall effectiveness of the Criminal Justice System in South Africa. When the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (“DNA Act”) was passed in January 2015, it fundamentally changed how forensic DNA profiling was used for the promotion of justice in South Africa and was heralded as a monumental step forward for South Africa in its fight against crime.

The addition of the National Forensic DNA Database extended the usefulness of forensic DNA profiling in the forensic science laboratory beyond that of just a prosecutorial tool.

The database in effect held promise not only to detect, convict, and deter criminals but also to exonerate as well as exclude persons of interest in an investigation, identify serial offenders and help ascertain the identity of missing persons and human remains in terms of the DNA Act.

A two-year “transitional period” was given to SAPS from January 2015 for collecting DNA samples from convicted offenders. The strict interpretation of this section was taken to read that sampling of convicted offenders may not continue after the expiration of the two-year period from the date of operation of the DNA Act, which was January 31, 2015.

Notably however, the intention of the legislature at the time of drafting this provision was to expedite the sampling of convicted offenders. As per the representations made to the Portfolio Committee of Police at the time by the Department of Correctional Services, it was deemed possible that with an aggressive approach the entire population within the Correctional Services system could be processed within two years of the DNA Act’s promulgation.

Despite these assurances and the convicted offenders’ sampling programme being endorsed, from the date of operation of the DNA Act, the sampling of the convicted offenders population was not completed within the specified time indicated by the DNA Act.

This was due to a number of factors, such as there not being enough trained officials to process the entire population of convicted offenders, as well as several unexpected operational issues which arose which delayed the taking of samples.

The Convicted Offender Index on the National Forensic DNA Database was therefore not fully populated and convicted offenders have not all been sampled. Further, the suspension of sampling of convicted offenders undermines the intention of the legislature to sample this critical population for inclusion in the National Forensic DNA Database.

Moreover, prisoners are being released without buccal samples (cheek swabs) having been provided and are therefore not being included in the database. In order to overcome this unfortunate result, the first draft of the Criminal Law (Forensic Procedures) Amendment Bill (B25-2021) (CO Bill) was drafted in 2018 to extend the two-year period stated in the DNA Act to allow the convicted offenders’ population to be sampled as intended.

The CO Bill caters for an additional issue which relates to the enforceability of the requirement to provide buccal samples. In the past, some convicted offenders have refused to provide their samples and the CO Bill contains provisions which are aimed at overcoming this challenge.

This important mechanism provides for the relevant authorities to obtain buccal samples where co-operation is refused. The case of S v Mki, Western Cape High Court Case No 49/2016 illustrates the urgent need to sample convicted offenders.

In this case a series of rapes occurred in the Western Cape between 2011 and 2015 and a number of innocent people were identified as suspects based on the incorrect identification by the victims.

Five of these people were tortured and killed by the community on the basis of these incorrect identifications. During 2016, after matching reports on the DNA database, 26 cases of rape were linked to a single unknown perpetrator. In the meantime, Mki was convicted on a charge of common assault, for which he received a suspended sentence.

His buccal sample was included in the Convicted Offenders Index, as a new entrant, and he was then linked to the DNA obtained as a consequence of these rapes.

Mki was arrested and pleaded guilty to 12 counts of robbery with aggravating circumstances, six counts of attempted robbery with aggravating circumstances, three counts of attempted robbery, two counts of robbery, four counts of assault with intent to do grievous bodily harm, 27 counts of kidnapping and 30 counts of rape.

He was sentenced to 15 terms of life imprisonment and to 12 terms of 10 years’ imprisonment. This predator has been removed from society because of the operation of the Convicted Offenders Index of the National Forensic DNA Database.

His case serves as an example of the necessity for the implementation of all aspects of the database and for the inclusion of existing convicted offenders’ buccal samples into that index. In June 2021, the minister of Correctional Services reported to Parliament that 96 875 prisoners had been released between 2016-2021 without having their DNA samples taken, potentially leaving them unlinked to previous crimes and future crimes, and the failure to capture this data undermines an essential element of the National Forensic DNA Database.

The release of prisoners before having a search of their DNA profile on the database potentially misses the opportunity to identify a serial rapist, as well as provides an opportunity to reoffend without detection.

If the DNA backlog is a concern, the Forensic Science Laboratory can prioritise at the very least those convicted offenders who are due for parole, before being released. Further, buccal samples are collected on the EasiCollect swab and undergo a “direct PCR”; which means a small section of the swab is subjected to the last step in the process, DNA profiling.

The DNA extraction and quantification steps required for crime scene (casework) samples are not needed. The Forensic Science Laboratory at the SAPS also largely automate the reference sample work flow and the DNA backlog sits mainly with crime scene samples.

While the SAPS is mandated by the DNA Act to sample arrestees of Schedule 8 offences, it is constitutionally inappropriate to allow prisoners with limited rights to escape DNA sampling based on operational concerns and not sound legal principles.

It is also time for the SAPS to enter public-private partnerships to assist with DNA processing capacity. In the meantime, it is unrealistic to wait for a “zero backlog” day, which may never happen, while allowing convicted offenders to be released without sampling, potentially creating even more crime scene samples, and violating more lives in the process.

It is without question that the CO Bill should be prioritised as being one of the most crucial pieces of legislation available to the SAPS today. The promulgation of this CO 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 co-operate.

* Lynch is the Director of DNA for Africa and former deputy chairperson of the DNA Board.