| We do not currently have a Convicted Offender Database in South Africa – in other words, our National DNA Criminal Intelligence Database currently only consists of DNA profiles collected from crime scenes (known as Crime Stains) and DNA samples of persons suspected of a crime/arrestees.
It is imperative to have a convicted offender database in addition to the crime stains and persons profiles, and it is only as a result of outdated legislation that we do not have a Convicted Offender Database in SA, as opposed to the rest of the world, where convicted offenders’ DNA automatically forms part of the National DNA Databases.
The advent of DNA Profiling came about subsequent to the drafting of
the legislation currently preventing a Convicted Offender Database from
being formed, namely the Criminal Procedures Act of 1977 (CPA).
Accordingly, s.37 of the Criminal Procedure Act has not actually been
drafted to expressly exclude the taking a DNA sample from a convicted
offender, but rather that it has over time been interpreted in a very
obscure way to perpetuate this exclusion, namely: the taking of DNA was
originally conducted via the drawing of a blood sample by inserting a
needle into a convicted offender, and it was this act of inserting the
needle to draw blood, that was considered to be assault.
It is for this reason that convicted offenders have escaped their
DNA profiles’ from being entered onto the NDCID under the protection of
s.37 of the CPA i.e. by default. Nowadays however, we are able to
uplift a DNA sample from a person by means of a simple buccal (saliva)
swab and as such this is not considered to be an act of assault. The question is therefore: does s.37 in fact still exclude the taking of DNA samples from a convicted offender now that a DNA sample may be taken via a saliva swab? If by implication it does, must it be challenged on the basis that it is unconstitutional? Or simply that s.37 needs to be reformed in order to keep it in line with worldwide trends and practices in force, especially considering that the CPA was drafted before DNA profiling was being used as a form of criminal intelligence. 
It goes without saying that in SA there is an urgent need for DNA samples to be taken from criminals, for a number of reasons:
- it acts as a deterrent;
- it could be used to link the offender with previous crime scenes where DNA profiles have been uplifted from crime scenes;
- it has been shown that there is a high possibility of the convicted offenders repeating crimes either after release, or during parole and by retaining the DNA profile, any subsequent crime stain may be linked immediately to that person, whose full details will be on the database.
Hand in hand with the amendment of s.37 is the issue of the DNA profile being kept on the DNA Database after that person has served his sentence in full. Currently, the DNA profile is taken off the active NDCID and put into a dormant database once the sentence has been served. Again, this is contradictory and it is unclear in terms of which law this is being achieved. It is considered to be contradictory because fingerprints are retained, but not DNA profiles, and both are unique identifiers.
The above issues are being tackled by the DNA Project which aims to lobby support to change current legislation to include convicted offenders DNA on the NDCID. Any person with a legal opinion on this issue is urged to submit their views to info@dnaproject.co.za | 
