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New DNA law to fight violent crime but experts are concerned that it will overburden SAPS

From next month, law enforcement will be able to draw on the full crime fighting might of forensic DNA. File image.

From next month, law enforcement will be able to draw on the full crime fighting might of forensic DNA. File image.

Published Jan 15, 2022


Johannesburg - From next month, law enforcement will be able to draw on the full crime fighting might of forensic DNA, but some are concerned this new tool will overburden an already overworked SAPS.

On Thursday, President Cyril Ramaphosa signed into law section 36D(1) of the Criminal Law (Forensic Procedures) Amendment Act.

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This means that from February 1, a suspect arrested and charged with a schedule 8 offence ‒ which includes rape and murder – will be required to provide a DNA sample which will be uploaded onto the National Forensics DNA Database.

For DNA for Africa regional director Vanessa Lynch, the so-called DNA Act has been a long time coming. She has been waiting since 2020 for the president to sign it into law.

She described it as “a positive step and a good start to the year”.

However the head of Advocacy at Women and Men against Child Abuse, Luke Lamprecht, said while the ruling was good news, it would increase the workload for police.

He said he was not sure the SAPS had the “appetite” for the extra work.

“A DNA database is extremely valuable and useful. It’s a way to track people if they change their names, move around or even if they have fake IDs. With this ruling, you can now link a suspect to cases which were previously just lying on a pile somewhere. It’s like how you link guns with ballistic tests,” he said.

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The ruling means police can now solve historical crimes, but Lamprecht stressed that the challenge would be the many untested samples which ran into the hundreds of thousands.

The SAPS has a huge backlog of DNA samples that still need to be analysed. In May last year the Police Minister Bheki Cele told Parliament that the backlog stood at just over 200 000 cases.

“The police only test DNA samples when a suspect is arrested. Unless they have reference sampling, they don’t test and this has been a challenge in solving crimes. There are thousands of untested samples and it will be interesting to see how this will be addressed,” Lamprecht said. He added that in the past, SAPS had displayed an unwillingness to test all DNA samples and this resulted in an insufficient database.

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“This lack of testing means we have thousands of guilty people walking free. They also need to look at the new rape kits. The new kits are made up of several boxes but at times not all the boxes have been available which means there’s a huge gap, leading to fewer prosecutions,” he said.

The Medical Rights Advocacy Network (Meran) said it opposed the new law, questioning whether police officers were allowed to take biological samples.

“One of our concerns is that police maliciously arrest people all the time,” said Meran co-ordinator Mary de Haas.

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Before the new law it was discretionary whether DNA was taken from an arrested person.

Last year, Justice and Correctional Services Minister Ronald Lomola admitted that 96 875 schedule 8 (violent crime) offenders had been released on parole since 2016 without providing a DNA sample.

Civil rights organisation Action Society said it welcomed the implementation of Section 36D of the Criminal Law (Forensics Procedures Act).

“DNA remains the most effective crime fighting tool. The sampling of schedule 8 arrestees will make a huge impact in solving cold cases, identifying repeat offenders and assisting in successful prosecutions of rapists and murderers,” said Action Society spokesperson Elanie van der Walt in a statement.

Children’s rights organisation The Teddy Bear Clinic said it believed the legislation could benefit all parties involved, including victims, perpetrators and law enforcement agencies.

“This legislation is in the interest of society as a whole because it will help corroborate a victim’s case while also proving the innocence of the alleged perpetrator if they are indeed not guilty and have been falsely accused,” she told The Saturday Star.

Omar, who also works with children who are victims of sexual and physical assault, added that the legislation would be of particular help to youngsters.

“There are often doubts cast over the evidence of children in court but making it compulsory for offenders to submit a DNA sample will go a long way in corroborating and supporting a youngster’s evidence.”

The compulsory nature of alleged offenders submitting DNA samples would also help in many cases when the accused perpetrator disappeared when a case was made against them, Omar said.

“We often have cases where the alleged offender disappears before any forensic evidence is extracted from them, which results in a case being struck off the roll at the court. This is not only a failure of justice but also causes victims, many of them children, to suffer further emotional turmoil.”

But while Omar sees the legislation as an important tool in helping find justice for victims, she would like to see law enforcement agencies allocate more resources to the collection of DNA samples.

“We need to look at the bigger picture because there is already quite a huge DNA backlog and if it is not addressed, this legislation will be futile and will be a waste of time.”