South Africa

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South Africa's DNA database was introduced in 1997. New legislation to expand it was passed by the National Assembly in September 2013, received Presidential assent in January 2014 and came into force on 1st January 2015.

The 2008 Interpol survey reports that 66,941 crime scene DNA profiles and 53,969 individuals' profiles were held in South Africa at the time of the survey. In 2011, South Africa's DNA database contained 92,871 reference DNA profiles from individuals and 39,452 crime scene DNA profiles according to Interpol.

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Detailed Analysis

Note: the new DNA Act 2013 is not yet included in the analysis below

I. Law on Point

Although this paper looks at the strengthening of both the SAPSs powers to collect and retain fingerprints and the powers of the SAPS to collect and retain DNA samples, it must be mentioned at the outset that South Africa does not have any specific legislation regulating the taking of fingerprints and the establishment of a DNA database. To clarify this statement: Firstly, there is legislation which broadly regulates the taking, use and destruction of fingerprints for use in criminal cases and there is legislation that broadly regulates the taking and use of fingerprints for the purposes of identification, but there is no singular piece of legislation solely regulating this area for the purposes of criminal investigations. Secondly, although the taking of blood samples in criminal cases and the ascertainment of other bodily features is broadly regulated by the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (CPA), there is no legislation in South Africa which specifically provide for the establishment of a DNA database containing samples taken from accused and convicted persons, against which samples collected at a crime scene can be run, in an effort to establish the identity of a perpetrator.

Criminal Procedure Act, 1977

The ascertainment of bodily features of the accused is regulated by Chapter 3 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (CPA), which grants powers, under section 37, in respect of the taking of fingerprints, palm-prints, foot-prints, the drawing of blood samples, attendance at an identity parade and the taking of photographs.[1],[2],[3] Section 37 should be read together with section 212(6) and (8) (proof of fingerprints and dispatch thereof, by means of affidavit); section 225 (admissibility of prints or bodily features as proof); and section 272 (proof of previous convictions with the aid of fingerprints). Each of these sections are discussed here in turn together with relevant case law, where applicable, in order to set out the current legislative framework regulating the taking of fingerprints and blood samples in criminal cases.

In terms of section 37(1)(c), a police official may not take a blood sample from an accused, but a police official may take such steps as he may deem necessary in order to ascertain whether the body or any person referred to in paragraph (a)(i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance. Blood samples may be taken, in terms of section 37(2), on own authority by a medical officer of a prison or a district surgeon or if a police official requests it, another registered medical practitioner or a registered nurse may also take such sample. Any registered medical practitioner attached to any hospital who on reasonable grounds is of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant in later criminal proceedings, may in terms of subsection (2)(b) take a blood sample from such person. In terms of subsection (3), a court before which criminal proceedings are pending may in any case in which a police official is not empowered under subsection (1) to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such steps, including the taking of a blood sample, be taken. Although not as clearly worded as in reference to the destruction of all prints taken under section 37, the wording “record of steps taken under this section”, as it appears in subsection (5), has been interpreted as requiring the destruction of the result of the bodily examination in all cases where the accused was found not guilty.

Section 37 , if read together with section 225(2), allows blood samples to be taken against the will of the person and such evidence is admissible in court, even if obtained in a manner not in accordance with section 37.[4]

In S v Orrie and Another 2004 (1) SACR 162 (C), the state applied, by way of a notice of motion and founding affidavit for an order in terms of section 37(1)(c) of the CPA read with subsections (2)(a) and (b), that the investigating officer is authorized, in conjunction with a medical officer or a district surgeon, to take a blood sample of each of the accused “in order to ascertain whether such sample(s) has any mark, characteristic or distinguishing feature by means of DNA analysis”.[5]

The state brought this application after the accuseds refusal to furnish blood samples in response to an informal request therefore. The accused opposed the application and argued that being subjected to such blood tests for the purpose of compiling a DNA profile will infringe the accuseds fundamental rights to dignity, to freedom and security of the person, the right to bodily integrity, the right to privacy and the right to be presumed innocent and not to have to assist the prosecution in proving its case (§§ 10; 12(1); 12(2); 14(a); 35(3)(h) and 35(3)(j) of the Constitution.

The Court held as follows in this regard (own emphasis added):[6]

“There can be little doubt that the involuntary taking of a blood sample for the purposes of DNA profiling is both an invasion of the subjects right to privacy and an infringement, albeit slight, of the right to bodily security and integrity. To the extent, however, that the involuntary taking of a blood sample from an accused for the purposes of compiling a DNA profile for use in criminal proceedings infringes his or her right to privacy, dignity and bodily integrity, I am of the view that the limitation clause of the Constitution (§ 36 of Act 108 of 1996) permits the limitation of these rights, through the medium of s 37 of the Criminal Procedure Act. I consider that, taking into account the factors set out in s 36(1)(a)-(e), such a limitation is necessary and justifiable in an open and democratic society based on human dignity, equality and freedom. Put differently, the taking of blood samples for DNA testing for the purposes of a criminal investigation is a reasonable and necessary step to ensure that justice is done and is reasonable and necessary in balancing the interests of justice against those of individual dignity”.

From a reading of the above, it is clear that the CPA is silent on the taking of bodily samples for the purpose of DNA analysis. It currently only provides for the taking of a blood sample for DNA testing in specific instances and directly related to a specific case. Therefore, the legislation does not support DNA matches between different cases and the use of DNA profiles of suspects and convicted offenders on a DNA database. At the moment the Criminal Record and Forensic Science Service (CRFSS) of the SAPS have a database of crime samples (samples collected at a crime scene) and a very limited database containing the DNA profiles of suspects.

In Levack and Others v Regional Magistrate, Wynberg, and Another 2004 (5) SA 573 (SCA), the application of section 37 of the CPA was broadened to include voice recognition. The Court held that although the section does not expressly mention the voice it does form part of the innumerable bodily features that the wording of the section expressly contemplates. In deciding the case, Cameron JA again confirmed that “autoptic evidence”, evidence derived from the accuseds own bodily features, does not infringe the right to silence or the right to be compelled to give evidence. (at paragraph 19) Cameron JA held in this regard as follows: “Differently put, it is wrong to suppose that requiring the appellants to submit voice samples infringes their right either to remain silent in the court proceedings against them or not to give self-incriminating evidence” (at paragraph 17). In doing so, Cameron JA reaffirmed the findings of courts in the cases of S v Huma and Another 1996 (1) SA 232 (W) and S v Maphumulo 1996 (2) SACR 84 (N) (footnote 23). Cameron JA relied heavily on the findings of the court in Ex parte Minister of Justice: In re R v Matemba 1941 AD 75, where Watermeyer JA held as follows in reference to the non-voluntary taking of an accuseds palm-print:

“Now, where a palm print is being taken from an accused person he is, as pointed by out Innes CJ in R v Camane 1925 AD at 575, entirely passive. He is not being compelled to give evidence or to confess, any more than he is being compelled to give evidence or confess when his photograph is being taken or when he is put upon an identification parade or when he is made to show a scar in Court. In my judgment, therefore, neither the maxim nemo tenetur se ipsum prodere nor the confession rules make inadmissible palm prints compulsorily taken”.

In S v Maphumulo, Combrink J held as follows:

“I have concluded, accordingly, that the taking of the accuseds fingerprints, whether it be voluntarily given by them, or taken under compulsion in terms of the empowerment thereto provided in section 37(1), would not constitute evidence given by the accused in the form of testimony emanating from them, and as such would not violate their rights as contained in section 25(2)(c), or 25(3)(d) of the [Interim] Constitution. Nor does it appear to be a violation of the accused rights as contained in section 10 of the [Interim] Constitution, which reads: “Every person shall have the right to respect for and protection of his or her dignity”.”

In S v Huma and Another (2) SACR 411 (W), the accused objected to having his fingerprints taken on two grounds. The first is that the taking of fingerprints impairs the dignity of a person and is therefore a contravention of the constitutional right to dignity contained in sections 10 and 11 of the Interim Constitution. The second ground of objection was based on the constitutional right to remain silent as contained in section 25(3)(c) and (d) of the Interim Constitution. In colloquial terms this is called the privilege against self-incrimination. Claassen J held as follows in regard to the question as to whether or not the taking of fingerprints constitutes inhuman or degrading treatment (page 416) (own emphasis added):

In my judgment it does not constitute inhuman or degrading treatment for the following reasons:

1.The taking of fingerprints is accepted worldwide as a proper form of individual identification. It is throughout the world used for the issuing of identity documents and passports. The same holds true for South Africa. The act of making ones fingerprints available for purposes of issuing an identity document or a passport can never be regarded as inhuman or degrading treatment.

2.The taking of fingerprints per se in private and not in Court or a public place (see S v Mkize 1962 (2) SA 457 (N) at 460) can in no way lower a persons self-esteem or bring him into dishonor or contempt, or lower his character or debase him. The definition of inhuman or degrading as referred to above in the judgment of Mahomed AJA therefore cannot, in my view, apply to the mere act of taking ones fingerprints.

3.The process of taking ones fingerprints does not, in my view, constitute an intrusion into a person’s physical integrity. No physical pain of any kind accompanies this process. By comparison, the taking of a blood sample constitutes more of an intrusion into a persons physical integrity than the mere taking of one’s fingerprints. When a blood sample is taken the skin is ruptured and it is accompanied by a small element of pain. Pain and violation of a persons physical integrity are also associated with corporal punishment and other forms of punishment. By comparison, in my judgment, the taking of fingerprints is on par with the mere taking of a photograph, which does not, in my view, violate the physical integrity of a person.

4.When fingerprints are taken pursuant to the provisions of s 37 it has to be borne in mind that those fingerprints will be destroyed in the event of the accused being found not guilty. There is therefore an additional safeguard built into the application of the provisions of this section.

5.The taking of fingerprints can potentially be a helpful procedure to the benefit of the accused in proving his innocence. If, after the fingerprints have been taken, a comparative chart is made and it is found that the necessary requirements for purposes of comparison are lacking, then the whole process of taking fingerprints would actually have rebounded to the accuseds benefit.

For the above reasons I have come to the conclusion that the value judgment which I have to make is such that the taking of fingerprints does not constitute a contravention of a persons dignity, protected and enshrined in ss 10 and 11(2) of the Constitution. However, even if I am wrong in this finding, I am of the view that s 33(1) allows a limitation to a persons constitutional right to dignity which is reasonable and necessary in a democratic society in respect of fingerprint-taking for purposes of compiling a comparative chart in criminal proceedings. This limitation is reasonable and necessary to enable the administration of justice to run its proper course. In my view, the fact that fingerprints are to be taken for purposes of a criminal investigation is a reasonable and necessary step in a democratic society to ensure that justice is done and is reasonable and necessary to balance the interests of justice against the interest of individual dignity. (emphasis added)


With regard to the privilege against self-incrimination, Claassen J held that the “privilege against self-incrimination does not apply to procedures relating to the ascertainment of bodily features such as the procedures involved in identification parades, the taking of finger- and footprints, blood samples and the showing of bodily scars … [t]hese procedures relate to the furnishing of what has been termed “real” evidence, as opposed to the furnishing of oral or testimonial evidence by the accused” (at page 417).


Section 225 of The CPA: Evidence Obtained Not in Accordance With Section 37 or Against the Will of The Accused

Section 225 of the CPA reads as follows:

(1) Whenever it is relevant at criminal proceedings to ascertain whether any finger-print, palm-print or foot-print of an accused at such proceedings corresponds to any other finger-print, palm-print or foot-print, or whether the body of such an accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, evidence of the finger-prints, palm-prints or foot-prints of the accused or that the body of the accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, including evidence of the result of any blood test of the accused, shall be admissible at such proceedings.

(2) Such evidence shall not be inadmissible by reason only thereof that the finger-print, palm-print or foot-print in question was not taken or that the mark, characteristic, feature, condition or appearance in question was not ascertained in accordance with the provisions of section 37, or that it was taken or ascertained against the wish or the will of the accused concerned

In terms of subsection (2), evidence concerning bodily features is admissible even if the presence of those features was determined against the will of the accused. (Refer in this regard to the Maphumulo judgment above).

Although not relevant for the purpose of this report it should be noted that section 212 of the CPA deals with proof of certain facts by affidavit or certificate. The manner in which the finding, lifting, dispatch and examination of prints can be proved is provided for in section 212(4)(a), (6) and (8). In addition, section 272 of the CPA provides that a record, photograph or document (SAP69), which “relates to a fingerprint” is the normal evidential material through which previous convictions are proved.

Firearms Control Act, 2000 (Act No. 60 of 2000)

In terms of section 6 of the Firearms Control Act, the Registrar may issue any competency certificate, licence, permit or authorization contemplated in the Act, upon receipt of an application completed in the prescribed form, including a full set of fingerprints from the applicant. Section 123 of the Act provides that the National Commissioner is the Registrar of Firearms.

Apart form section 6 of the Firearms Control Act, the collection of fingerprints and bodily samples is also regulated by section 113 of the Act.[7] Section 37 of the CPA limits the taking of prints by police officials to persons arrested or convicted in the circumstances stipulated in section 37(1)(a). Section 113 of the Firearms Control Act in turn provides the police with the power to take prints and bodily samples from a person or a group of persons where such person or one or more persons in a group of persons are suspected of having committed an offence punishable with imprisonment for a period of five years or longer.

Explosives Act, 2003 (Act No. 15 of 2003)

Section 9 of the Explosives Act to a large extent mirrors section 113 of the Firearms Control Act.[8]

Correctional Services Act, 1998 (Act No. 111 of 1998): Regulations

Regulation 17 of the Correctional Services Regulations deals with identification of prisoners and from a reading of this item it is clear that the taking of fingerprints as well as photographs or the recording of distinctive marks of a prisoner is not compulsory. Regulation 17 reads as follows:

(1) The name, age, height, mass, full address, distinctive marks of a prisoner and other particulars as may be required must be recorded in the manner prescribed by Order.

(2) If required the fingerprints and photographs of a prisoner must be taken, as prescribed by Order




  1. Section 37 of the CPA reads as follows: Powers in respect of prints and bodily appearance of accused (1) Any police official may- (a) take the finger-prints, palm-prints or foot-prints or may cause any such prints to be taken- (i) of any person arrested upon any charge; (ii) of any such person released on bail or on warning under section 72; (iii) of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of section 40 (1); (iv) of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; or (v) of any person convicted by a court or deemed under section 57 (6) to have been convicted in respect of any offence which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subparagraph; (b) make a person referred to in paragraph (a) (i) or (ii) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine; (c) take such steps as he may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a) (i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance; Provided that no police official shall take any blood sample of the person concerned nor shall a police official make any examination of the body of the person concerned where that person is a female and the police official concerned is not a female. (d) take a photograph or may cause a photograph to be taken of a person referred to in paragraph (a) (i) or (ii). (2) (a) Any medical officer of any prison or any district surgeon or, if requested thereto by any police official, any registered medical practitioner or registered nurse may take such steps, including the taking of a blood sample, as may be deemed necessary in order to ascertain whether the body of any person referred to in paragraph (a) (i) or (ii) of subsection (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance. (b) If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken. (3) Any court before which criminal proceedings are pending may- (a) in any case in which a police official is not empowered under subsection (1) to take finger-prints, palm-prints or foot-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance; (b) order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain the state of health of any accused at such proceedings. (4) Any court which has convicted any person of any offence or which has concluded a preparatory examination against any person on any charge, or any magistrate, may order that the finger-prints, palm-prints or foot-prints, or a photograph, of the person concerned be taken. (5) Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this section shall be destroyed if the person concerned is found not guilty at his trial or if his conviction is set aside by a superior court or if he is discharged at a preparatory examination or if no criminal proceedings with reference to which such prints or photographs were taken or such record was made are instituted against the person concerned in any court or if the prosecution declines to prosecute such person.
  2. Section 40(1)(n), (o) and (p) reads as follows: “(1) A peace officer may without warrant arrest any person- (n) who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act; (o) who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act; (p) who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons;”.
  3. Section 57(6) of the CPA reads as follows: “(6) An admission of guilt fine paid at a police station or a local authority in terms of subsection (1) and the summons or, as the case may be, the written notice surrendered under subsection (3), shall, as soon as is expedient, be forwarded to the clerk of the magistrates court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (7), be deemed to have been convicted and sentenced by the court in respect of the offence in question”.
  4. See A Kruger “Hiemstras Criminal Procedure” (2008) Comments on Chapter 3, at page 11 (available on Lexisnexis).
  5. At paragraph 2.
  6. At paragraph 20.
  7. Section 113 reads as follows: (1) Any police official may without warrant take fingerprints, palmprints, footprints and bodily samples of a person or a group of persons or may cause any such prints or samples to be taken, if - (a) there are reasonable grounds to suspect that that person or that one or more of the persons in that group has committed an offence punishable with imprisonment for a period of five years or longer; and (b) there are reasonable grounds to believe that the prints or samples or the results of an examination thereof, will be of value in the investigation by excluding or including one or more of the persons as a possible perpetrator of the offence. (2) The person who has control over prints or samples taken in terms of this section – (a) may examine them for purposes of the investigation of the relevant offence or cause them to be so examined; and (b) must immediately destroy them when it is clear that they will not be of value as evidence. (3) Bodily samples to be taken from the body of a person, may only be taken by a registered medical practitioner or a registered nurse. (4) A police official may do such tests, or cause such tests to be done, as may be necessary to determine whether a person suspected of having handled or discharged a firearm has indeed handled or discharged a firearm.
  8. Section 9 is repeated below with the wording that distinguishes it from the Firearms Control Act indicated in italics: “(1) Any police official may without warrant take fingerprints, palmprints, footprints and bodily samples of a person or a group of persons or may cause any such prints or samples to be taken, if there are reasonable grounds to - (a) suspect that the person or that one or more of the persons in that group has committed an offence punishable with imprisonment for a period of five years or longer in terms of this Act; and (b) believe that the prints or samples or the results of an examination thereof, will be of value in the investigation by excluding or including one or more of the persons as possible perpetrators of the offence. (2) The person who has control over prints or samples taken in terms of this section – (a) may examine them for the purposes of the investigation of the relevant offence or cause them to be so examined; and (b) must immediately destroy them when it is clear that they will not be of value as evidence. (3) Bodily samples to be taken from the body of a person, may only be taken by a registered medical practitioner or a registered nurse. (4) A police official may do such tests, or cause such tests to be done, as may be necessary to determine whether a person suspected of having handled or detonated an explosive has indeed handled or detonated an explosive.”