The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013: A critical analysis
Authors Lirieka Meintjes-van der Walt, Izette KnoetzeISSN: 1996-2118 Affiliations: Adjunct Professor of Law, Law, Science and Justice Research Niche Area Leader Faculty of Law University of Fort Hare, Advocate of the High Court of South Africa; Legal Researcher, Legal Aid South Africa, Adjunct Research Fellow, Law, Science and Justice Research Niche Area, University of Fort Hare, Admitted Attorney Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 131 – 162
The Criminal Law (Forensic Procedures Amendment Act, 37 of 2013 (the Act) established the long-awaited National Forensic DNA Database of South Africa in terms of section 15G of the South African Police Service Act 68 of 1995. No other criminal investigation procedure has grabbed the attention of society as much as DNA-profiling. The analysis of the Act below centres on the apparent conflicting interests of society, namely the ability of the State to use DNA for the enforcement of justice, on the one hand, and the protection of human rights and privacy of its citizens, on the other hand. As a DNA database is comprised of DNA profiles derived from biological samples, the manner of collection, storage and use of essentially sensitive personal data raises ethical, social and legal issues. This article scrutinises the Act and its ability to balance the conflicting interests between ‘crime control’ on the one hand, and, on the other hand, ‘due process’ and how these competing interests are accommodated in the regulation of the collection of DNA samples, the retention and removal of DNA samples as well as DNA profiles for the establishment of an intelligence DNA database for South Africa. In this article a rights-based approach is followed, which includes the principle of proportionality as found in South African constitutional jurisprudence, to examine the provisions of the Act and to determine whether the Act justifiably limits certain rights of the individual.