Criminal Law (Forensic Procedures) Amendment Bill [B2B-2009] (As presented by the Portfolio Committee on Police)

Purpose  To remove all references to DNA, DNA analysis and DNA profile  To remove establishment of NDDSA (National DNA Database of South Africa)  To remove the retention of DNA samples (intimate and non-intimate samples)  To retain records relating to fingerprints  To provide for access to databases of the Department of Home Affairs, the Department of Transport or any department of state in the national, provincial or local sphere of government.  To provide for the taking of intimate and non-intimate samples by a registered medical practitioner or registered nurse  To provide for consequential amendments to Firearms Control Act, 2000 (Act No.60 of 2000) and the Explosives Act, 2003 (Act No.15 of 2003).

PROPOSEDAMENDMENTS

Clause 2 Provides for insertion of definition clause into Chapter 3 of the CPA with reference to DNA terminology Provides for insertion of definition clause into Chapter 3 of the CPA with reference to DNA terminology Provides for the terminology associated with the establishment of the NDDSA Provides for the terminology associated with the establishment of the NDDSAProposals Section 36A – Interpretation of Chapter 3 Remove definitions relating to DNA (“DNA, DNA analysis and DNA profile”) Remove definitions relating to DNA (“DNA, DNA analysis and DNA profile”) Remove definition of the “NDDSA” (section 36A (1)(h)) Remove definition of the “NDDSA” (section 36A (1)(h)) Remove reference to “child” (section 36A (1)(c) & (2)) Remove reference to “child” (section 36A (1)(c) & (2)) Remove checking of intimate and non-intimate samples or Remove checking of intimate and non-intimate samples or information derived from such samples against the NDDSA (section 36A (1)(k)) Insert amendment to extend application of section 37(1)(c) and (2) to Chapter 3 of the CPA Insert amendment to extend application of section 37(1)(c) and (2) to Chapter 3 of the CPA

Section 36 B – Powers in respect of fingerprints and non-intimate samples of accused and convicted persons Ensure alignment with requirements referred to in section 36A(2) (see section 36B((1)(b)) Ensure alignment with requirements referred to in section 36A(2) (see section 36B((1)(b)) Remove reference to Chapter 5B of the South African Police Service Act, 1995 (Act No.68 of 1995) & NDDSA (section 36B(2)(b) Remove reference to Chapter 5B of the South African Police Service Act, 1995 (Act No.68 of 1995) & NDDSA (section 36B(2)(b) Remove retention of non-intimate samples and information derived from such samples Remove retention of non-intimate samples and information derived from such samples Retain records relating to finger-prints (section 36B (6)(a)) Retain records relating to finger-prints (section 36B (6)(a)) Remove retention of non-intimate samples and information derived from such samples (section 36B (8)) Remove retention of non-intimate samples and information derived from such samples (section 36B (8))

Section 36C – Body-prints and samples for investigation purposes Ensure alignment with requirements referred to in section 36A(2) (see section 36C((1)) Ensure alignment with requirements referred to in section 36A(2) (see section 36C((1)) Removal of non-intimate samples and information derived from such samples & retention of finger-prints and body prints (section 36C (3)(a)and (b)) Removal of non-intimate samples and information derived from such samples & retention of finger-prints and body prints (section 36C (3)(a)and (b)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 36C (3)((d)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 36C (3)((d)) Remove subsection (4) and retain reference to finger-prints and body prints only Remove subsection (4) and retain reference to finger-prints and body prints only

Clause 3 Provides for- Provides for- - Consequential amendments with regard to section 36B - Retention of finger-prints, body-prints, photographic images, intimate and non- intimate samples & information derived from such samples - Speculative search for prints & samples

Proposals Section 37 Extend prohibition on the examination of the body of a person to non- intimate samples (section 37(1)(c)) Extend prohibition on the examination of the body of a person to non- intimate samples (section 37(1)(c)) Provide for non-intimate samples to be taken by a registered medical practitioner or registered nurse if requested by police official (section 37(2)) Provide for non-intimate samples to be taken by a registered medical practitioner or registered nurse if requested by police official (section 37(2)) Remove retention of intimate or non–intimate samples or information derived from such samples & retain prints only (section 37(6)(a) Remove retention of intimate or non–intimate samples or information derived from such samples & retain prints only (section 37(6)(a) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 37(6)((d)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 37(6)((d)) Remove subsection (8) and retain finger-prints, body prints and photographic images only Remove subsection (8) and retain finger-prints, body prints and photographic images only

Clause 4 Section 212 of CPA - Retain current position - Proof of certain facts by affidavit or certificate

Clause 5 Section 225 of the CPA - Retain current position, except for removal of DNA analysis referred to in subsection (1) - Evidence obtained not in accordance with Chapter 3 of the CPA

Clause 6 Provides for – Provides for – - Insertion of Chapter 5A in SAPS Act dealing with storage and use of finger- prints, body-prints and photographic images of persons - Insertion of Chapter 5B in SAPS Act - to provide for establishment, administration and maintenance and use of the NDDSA

Proposals Chapter 5A - Retain current position - Remove reference to Chapter 5B (section 15C(3)(a)) Chapter 5B - Remove entire Chapter (sections 15D- 15S)

Clause 7 Provides for- - Consequential amendments to section 1 of the Firearms Control Act, 2000 (Act No. 60 of 2000) (section 1) Proposals Remove reference to “NDDSA” Remove reference to “NDDSA” Remove definitions of “DNA, DNA analysis and NDDSA” Remove definitions of “DNA, DNA analysis and NDDSA” Extend definition of “intimate sample” to include “pubic hair” Extend definition of “intimate sample” to include “pubic hair” Limit speculative search to fingerprints and body prints only Limit speculative search to fingerprints and body prints only

Clause 8 Provides for- - Consequential amendments to section 113 of the Firearms Control Act - Align powers of police to take prints and samples with the new provisions in the CPA Proposals - Provide for non-intimate samples to be taken by a registered medical practitioner or registered nurse if requested by police official (section 113(3)) Remove retention of intimate or non–intimate samples or information derived from such samples & retain prints only (section 113(5)(a)) Remove retention of intimate or non–intimate samples or information derived from such samples & retain prints only (section 113(5)(a)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 113 (5)(d)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 113 (5)(d)) Remove subsection (6) and retain finger-prints and body prints only Remove subsection (6) and retain finger-prints and body prints only

Clause 9 Provides for- - Consequential amendments to section 1 of the Explosives Act, 2003 (Act No. 15 of 2003) - Align powers of police to take prints and samples with the new provisions in the CPA Proposals Remove reference to “NDDSA” Remove reference to “NDDSA” Remove definitions of “DNA, DNA analysis and NDDSA” Remove definitions of “DNA, DNA analysis and NDDSA” Extend definition of “intimate sample” to include “pubic hair” Extend definition of “intimate sample” to include “pubic hair” Limit speculative search to fingerprints and body prints only Limit speculative search to fingerprints and body prints only

Clause 10 Provides for- - Consequential amendments to section 9 of the Explosives Act - Align powers of police to take prints and samples for investigative purposes with the new provisions in the CPA Proposals - Provide for non-intimate samples to be taken by a registered medical practitioner or registered nurse if requested by police official (section 9(3)) Remove retention of intimate or non–intimate samples or information derived from such samples & retain prints only (section 9(5)(a)) Remove retention of intimate or non–intimate samples or information derived from such samples & retain prints only (section 9(5)(a)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 9 (5)(d)) Remove storage of non-intimate samples and information derived from such samples and reference to the NDDSA i.t.o Chapter 5B of the SAPS Act (section 9 (5)(d)) Remove subsection (6) and retain finger-prints and body prints only Remove subsection (6) and retain finger-prints and body prints only

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