Department of Justice and Constitutional Development
The president has assented to Criminal Law (Forensic Procedures) Amendment Act 6 of 2010.
The act amends Criminal Procedure Act 51 of 1977, South African Police Service Act 68 of 1995, Firearms Control Act 60 of 2000, and Explosives Act 15 of 2003.
The principal aim of the Criminal Law (Forensic Procedures) Amendment Act is to strengthen the forensic investigative powers and capacity of the South African Police Service (SAPS).
The act was drafted in response to constraints and gaps identified in existing legislation during a review conducted by the Office for Criminal Justice System Reform. These constraints and gaps affected two pivotal aspects of South Africa’s forensic crime fighting capacity:
· the collection, storage and use of fingerprinting; and
· DNA evidence.
For criminal investigation purposes, the act provides the SAPS with access to fingerprint databases maintained by the department of home affairs, the department of transport, “or any department of state in the national sphere of government”. This is irrespective of whether the photographic images or prints concerned were collected prior to its coming into effect on a date yet to be determined.
Further, the act extends the powers of the SAPS to take and retain fingerprints and other biometric materials for criminal investigation purposes. Biometric materials include bodily substances taken for the purposes of DNA analysis.
Amendments to the South African Police Service Act included in the new act make provision for establishing and regulating the administration and maintenance of a national DNA database. The amendments also provide for regulating the storage and use of fingerprints, palm prints, footprints and photographs.
Provisions for amendments to the Firearms Control Act and Explosives Act pertain to the regulation of SAPS powers to take fingerprints, body prints and bodily samples. The term “body print” refers to a print of any body part other than one generally deemed to be private.
Section 36A of the new act spells out procedures in respect of taking prints or samples from a child. These apply to any person under the age of 18 years. Police officers are explicitly required to pay “due regard” to the personal rights of a child in terms of privacy, dignity and bodily integrity.
Section 15D sets out procedures and steps to be taken by the commissioner of police for preserving the integrity of information taken and/or stored on the national database.
The act will come into operation by proclamation in the Government Gazette.