By Izette Knoetze

The Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 came into operation with effect from 18 January 2013.

Briefly, the history to this Act is that in 2009 the Department of Justice and Constitutional Development introduced a Bill on the proposed National DNA Database, which provided the framework in which a DNA intelligence database for South Africa was to be established. However, the parliamentary Portfolio Committee on Police subsequently decided to divide the Bill into two phases: The first relating to fingerprints and body-prints and the second relating to DNA. This Act relates to the first phase.

Purpose of the Act

According to its preamble, the purpose of the Act is to –

• amend the Criminal Procedure Act 51 of 1977 (CPA) to provide for the compulsory taking of fingerprints of certain categories of persons;
• provide for the taking of fingerprints and body-prints for investigative purposes;
• provide for the retention of fingerprints and body-prints taken under the Act;
• regulate the destruction of fingerprints taken under the Act;
• regulate proof of certain facts by affidavit or certificate;
• amend the South African Police Service Act 68 of 1995, so as to regulate the storing and use of fingerprints, body-prints and photographic images of certain categories of persons;
• provide for the keeping of databases and to allow for comparative searches against those databases;
• provide for security measures relating to the integrity of information stored on these databases;
• provide for the development of standing operating procedures regarding access to the databases of other state departments;
• amend the Firearms Control Act 60 of 2000 to further regulate the powers in respect of fingerprints and body-prints for investigation purposes;
• amend the Explosives Act 15 of 2003 to further regulate the powers in respect of fingerprints and body-prints for investigation purposes; and
• provide for matters connected therewith.

Amendments to the Criminal Procedure Act

The Act provides for the insertion of ss 36A, 36B and 36C after s 36 of the CPA.

In s 36A the following definitions and interpretation of chapter 3 are inter alia inserted:

• ‘Authorised person’ means, ‘with reference to photographic images, fingerprints, or body-prints, any police official in the performance of his or her official duties’.
• ‘Body-prints’ means ‘prints other than fingerprints, taken from a person and which are related to a crime scene, but excludes prints of the genitalia, buttocks or breasts of a person’.
• ‘Child’ means a ‘person under the age of 18 years’.
• ‘Comparative search’ means ‘the comparing of fingerprints, body-prints or photographic images, taken under any power conferred by this chapter, by an authorised person against any database referred to in chapter 5A of the South African Police Service Act’.

What constitutes a body-print?

Apart from the definition of a ‘body-print’ above, what exactly is this?

In my view, the above definition is not a model of good legal draftsmanship. I submit that a ‘body-print’ is a mark, image or print (other than a fingerprint) found at a crime scene and originating from any part of the human body (other than those parts specifically excluded). I further submit that the mark, image or print must (as in the case of a fingerprint) be unique to an individual so that it can be said to originate from a specific individual. Examples would be palm prints, footprints (from the sole of a foot, not from a shoe) and teeth marks.

Children

The taking of fingerprints and body-prints of a child by any police official is regulated in terms of s 36A(2) of the Act. This section stipulates that any police official who, in terms of this Act or any other law, takes the fingerprints or a body-print or who ascertains any bodily feature of a child must –

• have due regard to the personal rights relating to privacy, dignity and bodily integrity of the child;
• do so in a private area, not in view of the public;
• ensure the presence of a parent or guardian of the child, a social worker or an appropriate person; and
• treat and address the child in a manner that takes into account gender and age.

Powers in respect of accused and convicted persons

The powers in respect of taking fingerprints are conferred on a police official in terms of s 36B.

Section 36C provides that any police official may, without warrant, take fingerprints or body-prints of a person or a group of persons, if there are reasonable grounds to suspect that the person has, or persons have, committed an offence or to believe that the prints, or the results of an examination thereof, will be of value in the investigation process.

Provision is made (s 36B(3)) for storage of the fingerprints on the fingerprint database maintained by the National Commissioner of Police as provided for in the South African Police Service Act.

Retention of fingerprints

Section 36B(5) provides that fingerprints may be the subject of a comparative search.

In terms of s 36B(6)(a)(i), any fingerprints must, on the conviction of an adult, be retained on a database referred to in chapter 5A of the South African Police Service Act.

The retention of a child’s fingerprints on conviction is regulated by s 36B(6)(a)(ii), which provides that where a child is convicted, his fingerprints must be retained on a database referred to in chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in s 87 of the Child Justice Act 75 of 2008.

Fingerprints retained in terms of s 36B may be used for purposes related to the detection of crime, the investigation of an offence, the identification of missing persons, the identification of unidentified human remains or the conducting of a prosecution. Fingerprints may also be used to establish if a person has been convicted of an offence.

If any person uses or allows the use of fingerprints, body-prints or photographic images for any purpose other than the abovementioned purposes, or tampers with or manipulates the process or the fingerprints, body-prints or images or falsely claims such fingerprints, body-prints or images to have been taken from a specific person while knowing them to have been taken from another person or source, he is guilty of an offence and liable on conviction to imprisonment for up to 15 years.

Destruction of fingerprints and body-prints

The destruction of fingerprints and body-prints is regulated by s 36B(6)(a)(iii) of the Act, which provides that any fingerprints ‘in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceedings with reference to such fingerprints or body-prints were instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the division responsible for criminal records referred to in chapter 5A of the South African Police Service Act has been notified’.

In terms of s 36B(7), the National Commissioner of Police must destroy the fingerprints of a child on receipt of a certificate of expungement in terms of s 87(4) of the Child Justice Act.

Insertions in the South African Police Service Act

The Act provides for the insertion of chapter 5A in the South African Police Service Act after s 15. In terms of s 15A, the National Commissioner must ensure that fingerprints, body-prints or photographic images are stored, maintained, administered and are readily available, whether in computerised or other form, and that they are located in the division of the service responsible for criminal records.

Duties of the National Commissioner

The National Commissioner must ensure that the fingerprints and photographic images of persons whose names must be included in the National Register for Sex Offenders are taken and dealt with in accordance with s 15A(1). The National Commissioner must, in terms of s 15C, within six months of the commencement of this section, issue national instructions, which must be followed by all police officials, regarding –

• the collection of fingerprints and body-prints and the taking of photographic images;
• the storage, maintenance and administration of prints and images; and
• the use of the information made available in terms of this chapter and the manner in which statistics must be kept by the division of the service responsible for criminal records. This includes the recording and maintaining of statistics on all exhibits collected at crime scenes.

Conclusion

The taking, storage, retention and destruction of fingerprints and body-prints are regulated by this Act. Provision is also made for the taking of fingerprints and body-prints of children, while upholding various personal rights (privacy, dignity and bodily integrity) of the child. The use of fingerprints to investigate and solve crime is one of the most significant innovations in the criminal justice system.

This Act, which regulates the taking, storage, retention and destruction of fingerprints and body-prints, is an important component of this.

Izette Knoetze LLD (UFS) is a legal researcher at Legal Aid South Africa in Johannesburg.

This article was first published in De Rebus in 2013 (March) DR 26.