4.2.1 DNA and blood samples
The police have the power to obtain blood samples in terms of section 37 (1) (c) of the Criminal Procedure Act. The enabling Act previously provided in section 37 (1) (c) of the Criminal Procedure Act before the amendment that:
Any police official may –
(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.469
Section 37 (1) (c) of the amended Criminal Procedure Act 470 now provides:
Any police official may-
(c) take such steps as he or she may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a) (i) or (ii) or paragraph (a) or (b) of section 36B (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance: Provided that a police official may not-
(i) take a blood sample of any person,471 or
(ii) examine the body of a person who is of a different gender to the police official.472
Section 37 (1) (c) is silent on or does not prescribe any procedure in relation to the taking of the following samples for analysis for DNA purposes: hair, teeth, bones, body fluid, saliva and body tissue. This is a gap that needs to be addressed by the legislature.
469
Section 37 (1) (c), Act 51 of 1977.
470
51 of 1977.
471 Criminal Law (Forensic Procedures) Amendment Bill (B9-2013) is amending the section to
read as follow : (i) take an intimate sample of any person.
472
Section 37 (1) (c) of the new Criminal Procedure Act after amendment by Criminal Law (Forensic Procedures) Amendment Act 6 of 2010.
From a constitutional perspective the taking of blood samples or other samples to extract DNA profiles is not unconstitutional. DNA is the most common method of ascertaining bodily features in foreign jurisdictions. This is similar to the approach of South Africa, especially in sexual offences and murder cases.
The difference is that in Canada a warrant is issued by a judge for DNA samples, which the police can use to obtain samples from a suspect or accused person for comparison purposes for DNA. In the UK the CJPA 2001 gives the police authority to obtain samples from a suspect for investigation purposes.
In Canada, it is not unconstitutional to obtain samples from a suspect to ascertain bodily features, as is the position in the USA. In the USA, ascertainment of bodily features of a person through samples is not regarded as unconstitutional. Canada and the UK authorise samples to be obtained from a suspect for investigation purposes.
In Canada, if there is reasonable suspicion that the DNA of a person is the same as the DNA found at a crime scene, the police can file an ex-parte application to a judge and request that a DNA warrant be issued by the court to enable the police to obtain blood samples from that person for comparison and compilation of a DNA profile.
The position of the suspect in Canada is the same as the position of the suspect in South Africa in the sense that the police cannot obtain “body samples” from the suspect for forensic investigation and testing without the prior consent of the suspect. In South Africa that can only be done if the person is arrested, detained or convicted.
The other difference is that in South Africa, a doctor can obtain a blood sample of any person who is being treated by him or her (section 37 (2) (b), while in Canada the doctor cannot obtain the blood sample of a person without that person’s consent. The researcher therefore concludes that doctors in South Africa are sufficiently authorised to obtain samples from a suspect and arrested person, while the situation is different in Canada.
Currently section 37 (1) (c) of the Criminal Procedure Act 473 does not authorise South African police officials to obtain samples from a person who is a suspect, unless that person has been arrested, detained or convicted or that person gives informed consent.
473
Act 51 of 1977.
In conclusion and based on the decision of Regina v Fisher,474 and the Canadian Criminal Code, comparable solutions could be of assistance in South Africa. It is suggested that a law must be enacted authorising a “DNA warrant” similar to the one in Canada so that police will be able to order medical practitioners to obtain samples from “suspects” as well, not only from arrested detained and accused persons. This problem might, however, be solved by section 36D and section 36E of the Criminal Law (Forensic Procedures Amendment Bill) if these can be approved to become law (an Act).475
Furthermore, on the basis of the conflicting decisions between the cases of Gaqa and Xaba supra, the researcher submits that there is no certainty in relation to whether an exhibit (real evidence) such as a bullet projectile can be removed from the body of the suspect or accused person by means of surgery by a medical practitioner on request of a police official in terms of section 37 (2) (a) or section 37 (3) (a) or (b) or section 37 (4). The researcher concludes that this uncertainty needs intervention by the legislature or Constitutional Court.