First published in Daily Maverick 168

Despite great efforts by activists to get it done and great success by law enforcement using DNA to solve cold cases, the police and the Department of Correctional Services have only managed to collect DNA samples from 2.3% of convicted offenders who were released on parole for serious crimes in the past 10 years.

The process has been stalled as legislation to allow for the period to do this to be extended has not been signed.

DNA samples were only taken from 2% of prisoners convicted of serious crimes in the past 10 years. The figures were provided to Parliament by Minister of Justice and Correctional Services Ronald Lamola in September in a response to a question asked by the Democratic Alliance’s Werner Horn.

This is in sharp contrast to an answer given by the minister of police during a sitting of the national assembly in March. He was asked about the taking of DNA samples from convicted offenders who were released through remission of sentences in March: “Well, I believe that the member will understand that is happening or it has been done to the sentenced and convicted prisoners … all the prisoners that have been released through the remission at the present moment, there is not a single one of them that leaves the walls of prison having not taken the sample of the DNA … That’s what we are doing at the present moment,” he said.

The founder of the now closed DNA Project, Vanessa Lynch, who made it her mission to ensure that the victims of crime and their families would benefit from the vital role that DNA evidence can play in helping to convict criminals, said the collection of DNA samples played a crucial role in plans by the Office of the Criminal Justice Review System for seven fundamental and far-reaching informative changes of the criminal justice system. It has come to be known as the CJS Seven-point Plan.

“These changes were intended to be adopted and implemented in an effort to transform the criminal justice system into a more effective administration.  The seven-point plan identified as one of its priorities, the need to strengthen a pivotal aspect of South Africa’s forensic crime-fighting capacity, namely a coherent, all-encompassing and holistic legislative framework for the collection, storage and use of DNA evidence.

“The realisation of this aspect of the seven-point plan was, however, only possible with the implementation of new DNA-specific legislation, which would allow for the inclusion of different types of forensic DNA profiles on a formally established and properly administered DNA database, as well as for comparative searches between the crime scene and various reference profiles on the DNA database.”

Legislation allowing for a two-year period during which DNA samples would be taken from convicted offenders was created. This, however, expired in 2017. Lynch said a subsequent amendment Bill to allow for this period to be extended had not yet been signed.

In their handover report tabled in Parliament in April this year, the outgoing DNA Board also stated that the amendment Bill was recommended for approval by the Justice, Crime Prevention and Security (JCPS) Cluster Directors-General Forum during 2017/18. “The Bill, however, could not be tabled with the JCPS cluster Cabinet Committee due to the decision taken by the minister to place its further processing in abeyance pending the finalisation of discussions with the minister of home affairs to establish a population DNA database of all citizens.”

Earlier this month the police admitted to two courts and to Parliament that a budget crisis had pushed its laboratories to the edge of collapse and stalled thousands of gender-based violence cases, including rape, murder and attempted murder, because technicians were unable to do DNA analysis.

Forensic experts giving evidence in courts in Vredenburg and Makhanda also admitted that they had to select which samples would be analysed because funds were not available to do all of them.

In another letter to President Cyril Ramaphosa, Lynch further raised her concern about the collapse of the project to take DNA samples from convicted offenders, stressing the importance of developing a DNA database and taking DNA samples from paroled offenders.

“When used in conjunction with the DNA Database it has the ability to identify serial offenders, preventing them from striking again,” she said. Lynch pointed out in her letter to the president that samples were no longer taken from convicted offenders because the Bill that provided for the extension of the time period to continue doing this had not been signed since 2017.

“This is exacerbated by your current minister’s [Minister Bheki Cele] wish to pursue a population DNA database which would involve taking DNA samples from all your citizens – an idea that is not only unconstitutional but impractical considering you do not even have the funds to get our criminal population on the database, which is surely the primary objective?” she continued.

DA MP Andrew Whitfield said there were currently no DNA samples recorded for probably more than 50,000 convicted Schedule 8 offenders. Schedule 8 offences include rape, murder, culpable homicide and robbery.

“All that is required for the Bill to be gazetted and introduced in Parliament is the minister’s signature since 2017. The minister of police has stated that he first wishes to gather DNA samples from all South African citizens. The ministers of home affairs and police have plans for a national database [which] might be unconstitutional in nature and is wholly unnecessary for the tabling of this Bill. It is also a completely unaffordable exercise, and the Civilian Secretariat has acknowledged both these concerns.”

Whitfield explained that the Civilian Secretariat this week for the first time said that the minister was considering bringing the Bill back to Cabinet. “I have asked for a more concrete timeline and a current costing of the Bill. Now we hear that it is being delayed. The Bill already has costing attached to it. It has been ready for three years. The ANC’s determination to pursue a national DNA database and impose genetic surveillance of the entire nation is Orwellian and is a very dangerous DNA dystopia which this country needs to guard against.

“Those 50,000 offenders basically could have 10, 50 or even another life sentence added to their sentence if they can be linked to other crimes. This piece of legislation is not controversial. We are making some progress now to bring the Bill back to Parliament. The urgency of this cannot be overstated,” he said.

“The Bill must be tabled and gazetted in November and brought to Parliament as soon as possible,” he added. DM168