First published in the Daily Maverick 168 weekly newspaper.

President Cyril Ramaphosa and Minister of Police Bheki Cele have been given 30 days to fix a legislative blunder that saw the release of more than 96,000 convicted offenders on parole without their DNA being added to a national database set up to improve crime-fighting – and specifically to assist in solving gender-based violence cases and cold cases.

The failures, especially on the side of Cele, who initially pushed for the entire country’s DNA to be put on file before signing legislation to extend the DNA sampling of convicted criminals, but later abandoned this notion, has been described as a “catastrophic miscarriage of justice” by Andrew Whitfield, DA member of Parliament’s Committee on Police.

The convicts who were released were charged with Schedule 8 offences that included rape and murder and sexual offences committed against children.

But now Action Society, a civil rights organisation, has given the South African government until 20 September to fix the law before they go to court about it.

In 2015 a law making provision for a transitional period allowing the police to take DNA samples from convicted criminals for two years was passed. But by April 2020, the National Forensic Oversight and Ethics Board, in a report signed by Justice Yvonne Makgoro, confirmed that it had proposed an amendment during 2017 to the Forensic Procedures Act to remedy the shortcoming in the legislation after the expiry of the two-year transitional period to allow for the continuation of the convicted offender sampling  programme. The board, in its report, confirmed that the Amendment Bill was also recommended for approval by the Justice, Crime Prevention and Security (JCPS) Cluster directors-general forum during 2017/18.

The board also stressed the importance of the extension of this two-year period to allow for all outstanding convicted offenders to give DNA samples. In this report the board emphasised that this database was a vital component because it provided potential links to cold cases and other crimes. If this crucial index is not populated, the board warned at the time, this database would lose its efficacy as “a criminal intelligence tool”.

Just how well it works was demonstrated by the case in 2016, against Sikhangele Mki whose DNA was taken after he was convicted on a charge of assault. Mki only received a suspended sentence but, using the forensic database, investigators managed to match him to 26 cases of rape. He 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 each.

Despite this early success the Amendment Bill that would allow for this transitional period to be extended was not tabled “pending the finalisation of discussions with the Minister of Home Affairs to establish a population DNA database of all citizens of South Africa”.

The Amendment Bill has not yet been presented to Parliament.

In 2015 the police estimated that it would take them 14 months to take all the required samples, but this never happened.

No longer covered by the transitional period since 2017, convicts were able to refuse to have their DNA taken.

Eventually this has led to the release of 96,875 convicts without their DNA being added to a forensic database.

Andrew Whitfield of the DA explained that, in terms of Section 7 of the Criminal Law (Forensic Procedures) Amendment Act, the responsibility to draw DNA samples and maintain the records of the National Forensic Database is that of the South African Police Service (SAPS).

The law made provision for a transitional period during which offenders already serving sentences but not yet on the national database would be referred to the police for their DNA to be captured.

This transitional period was allowed to lapse without the police completing their work and Cele failed to ensure that it was extended.

Whitfield, who has been campaigning for the country’s failing forensic DNA system to be fixed, said what happened was a catastrophic miscarriage of justice. He said Cele and Minister of Home Affairs Aaron Motsoaledi “had a highly unconstitutional pipe-dream of a national DNA population database” and had allowed crucial legislation to slip through the cracks while pursuing this.

“Thousands of convicted offenders are being released from incarceration without their DNA samples having been taken, potentially leaving them unlinked to previous crimes and unlinkable to future crimes.

“It cannot be gainsaid that the failure to capture this data undermines an essential element of the entire project,” Action Society’s letter says. “In the meantime, the women and children of South Africa are being subjected to what has been described as a ‘veritable war on women and children’ and there is no sign that this is abating.”

Vanessa Lynch, a long-time activist for the establishment of a forensic DNA database in South Africa, said DNA is taken from suspects and from victims of crimes – but convicted criminals were allowed to refuse having their DNA taken.

“There is no rational reason for this,” she said.

Elanie van der Walt from Action Society confirmed that their attorneys have sent a letter to the Presidency, the commissioner of police, the minister of police and the commissioner of correctional services, to demand the urgent implementation of the Forensics Procedures Amendment Act.

“The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (Forensic Procedures Act), forces convicted Schedule 8 offenders [this includes murderers and rapists] to submit a DNA sample for the population of the National Forensic DNA Database. Since the creation of this database in 2015, however, this Amendment Act has still not been finalised and is still awaiting the president’s signature,” Van der Walt said.

“The President and the national minister of police are failing to protect the citizens of South Africa and are infringing on their constitutional rights. A crucial part of the criminal justice system is not being applied, due to the lack of resolve from government to implement the law,” Van der Walt added.

She said the letter was sent on 20 August and the government was given 30 days to comply. If no feedback is received by 20 September, she noted, Action Society will proceed with legal action against the government.

“Despite the obvious fact that this database is an essential and effective weapon in the fight against crime, enhancing the ability of the SAPS to identify criminals and providing considerable assistance to the prosecuting authorities – this crucial element is being neglected by the government. The failure of the government to apply and implement the law is allowing thousands of convicted murderers and rapists to walk free without being able to link them to past or future crime,” she said.

“There is a considerable body of literature about the effectiveness of a properly implemented and maintained National Forensic DNA Database in the fight against crime. Notwithstanding its obvious benefits, the implementation of this database has been fraught with difficulties and delays since its inception in 2015. These challenges have had the result that the fight against crime and gender-based violence has been deprived of the benefit of a fully  operational forensic DNA database. Unfortunately, this situation persists even today,” she added.

Neither Cele nor Motsoaledi’s spokespersons responded to questions on the issue. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.