Download this publication - PULP

11
Iain
CHAPTER
BALANCING AND THE
LIMITATION OF RIGHTS IN
THE SOUTH AFRICAN
CONSTITUTION
Currie*
1 What does it mean to have a constitutional right?
The Criminal Law (Forensic Procedures) Bill 2 of 2009 was introduced into
Parliament just prior to the 2009 election and was subsequently withdrawn
without being considered by Parliament. 1 It was revived after the election and
considered in detail by the Parliamentary Portfolio Committee on Police. 2 The
Committee has since split the Bill into two parts. The first part deals with wideranging
amendments to the law governing the obtaining of fingerprints, and it
was adopted by the Committee in March 2010 and passed by the National
Assembly in June. 3 Consideration of part 2 of the Bill will take place later in
the 2010 parliamentary session.
If it follows the form of the Bill originally introduced in 2009, 4 then part
2 of the Forensic Procedures Bill will amend the South African Police
Service Act 68 of 1995 and permit the establishment of a national DNA
database. This will consist of DNA profiles (popularly known as a ‘DNA
fingerprint’) derived from DNA samples that have been collected from
crime scenes, from arrested persons, from convicted offenders and from
volunteers. In addition to DNA profiles, the database will also hold, ‘where
applicable and scientifically possible’, the physical DNA samples for
possible use if ‘significant technological advances’ have been made since the
compilation of the DNA profile to which they relate.
* University of the Witwatersrand, Johannesburg.
1 ‘Misdaad-wet met maande vertraag’ Rapport 21 March 2009; ‘MP defends slow
progress of DNA testing Bill’ Cape Argus 25 March 2009.
2 Information from the Parliamentary Monitoring Group database http://www.pmg.
org.za (accessed 27 July 2010).
3
The most important change proposed by this part of the Bill is to allow the police to
perform comparative searches of other, non-forensic, fingerprint databases such as the
databases of the Departments of Home Affairs and of Transport. See clause 6 of the
Bill.
4 Some changes can be expected. The reasons for the Committee delaying consideration
of the DNA-database aspect of the original Bill were concerns about the readiness of
the police to implement it and concerns about the constitutionality of some of its
proposed measures. See ‘DNA database delayed’ IT Web 5 July 2009.
251