I was recently interviewed by John Perlman on Radio 702 Drive regarding a case in the Eastern Cape, where the suspect—who had not yet been arrested or charged—was allegedly advised by his attorneys not to provide a DNA sample. The mother of the alleged victim had requested that the police take a DNA sample from the principal of the school where the child attended. (Source: EWN article).
I explained on-air the various legal options available in South Africa relating to the taking of a DNA sample. For arrestees who have been arrested and charged with a Schedule 8 offence, providing a DNA sample is mandatory. However, in cases where a DNA sample is being requested from someone who could assist in the investigation, such as the principal in this case, it is discretionary, not automatic.
One of the listeners raised an important point: If a complainant reports a case to the police, shouldn’t it be the police who determine how the investigation proceeds, rather than the complainant? The listener's concerns about the police's role in the investigation are valid. In this case, it appears from the media report that the request for a DNA sample from the principal came from the mother of the child, not the investigating officers. This raises questions: why did the police not think it was necessary to request a DNA sample from the principal if they had a reason to suspect his involvement? While that speaks to competency (which is not the subject of this opinion), what I would like to focus on is the situation where there are not enough grounds to arrest and charge a suspect with a Schedule 8 offence (which would normally make DNA sampling mandatory). In these instances, what laws can we rely on to compel the suspect to submit a DNA sample?
The answer, in this case, lies in a combination of discretionary powers under the DNA Act. As outlined in Section 36E, if there are reasonable grounds to suspect that a person has committed an offence, but they have not yet been arrested or charged, DNA sampling may still be possible, provided the police apply to a magistrate for a warrant. In the absence of consent from the person concerned, this legal provision gives the police the power to request a warrant to compel the submission of a DNA sample, even if the individual has not been formally charged or arrested.
The relevant DNA Act provision, Section 36E, clearly outlines the conditions under which a DNA sample can be taken:
Section 36E: Samples for Investigation Purposes
(1) Subject to subsection (2) and section 36A(5), an authorised person may take a buccal sample of a person or a group of persons, or supervise the taking of a buccal sample from a person who is required to submit such a sample and who requests to do so himself or herself 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 referred to in Schedule 8; and
(b) believe that the buccal sample or the results of the forensic DNA analysis thereof will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence.
(2) If a person does not consent to the taking of a buccal sample under this section, a warrant may be issued by a judge or a magistrate if it appears from written information given by the authorised person on oath or affirmation that there are reasonable grounds for believing that—
(a) any person from whom a buccal sample is required has committed an offence listed in Schedule 8; and
(b) the sample or the results of an examination thereof will be of value in the investigation by excluding or including that person as a possible perpetrator of the offence.
(3) The provisions of section 36D(4), (5)(a), (6), and (7) apply with the necessary changes to a sample or forensic DNA profile derived therefrom as contemplated in subsection (1).
The refusal to provide a DNA sample when requested under this section—in and of itself—if not backed by sufficient legal justification, could raise suspicion and may be grounds for the police to apply for such a warrant and for the magistrate to grant it.
In the case under discussion, the principal's attorney has advised against the principal submitting a DNA sample without sufficient evidence (such as a warrant for arrest). However, under the DNA Act, if the police are unable to secure consent for a sample (which they believe will either exclude or include him in the investigation), they can request a warrant from a magistrate if there are reasonable grounds to do so.
The principal’s refusal to provide a sample—if not backed by a compelling legal argument—could understandably be seen as suspicious, especially since it could exclude him from the investigation. If the police decide to apply for a warrant under S36E and it is granted, the resultant DNA profile could become a pivotal piece of evidence in trial when compared against a sample taken from the child i.e. it could either exclude or include him as a person of interest in the investigation.
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