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Criminal Procedure Act, 1977 (Act No. 51 of 1977)

Chapter 3 : Ascertainment of Bodily Features of Persons

36D. Powers in respect of buccal samples, bodily samples and crime scene samples

 

(1) Subject to section 36A(5), an authorised person must—
(a) take a buccal sample; or
(b) cause the taking of any other bodily sample by a registered medical practitioner or registered nurse defined in the National Health Act,

of any person—

(i) after arrest but before appearance in court to be formally charged for any offence referred to in Schedule 8;
(ii) released on bail in respect of any offence referred to in Schedule 8, if a buccal sample or a bodily sample of that person was not taken upon his or her arrest;
(iii) upon whom a summons has been served in respect of any offence referred to in Schedule 8;
(iv) whose name appears on the National Register for Sex Offenders; or
(v) charged or convicted by a court in respect of any offence, which the Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection.

[Section 36D(1) has not yet been proclaimed - as referred to in Proclamation 89 of 2014]

 

(2) Subject to section 36A(5), an authorised person may—
(a) take a buccal sample; or
(b) cause the taking of any other bodily sample by a registered medical practitioner or registered nurse,

of any person—

(i) after arrest but before appearance in court to be formally charged in respect of any offence;
(ii) released on bail in respect of any offence, if a buccal sample or bodily sample was not taken upon his or her arrest;
(iii) upon whom a summons has been served in respect of any offence;
(iv) whose name appears on the National Register for Sex Offenders; or
(v) charged or convicted by a court in respect of any offence, which the Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection.

 

(3) The authorised person must supervise the taking of a buccal sample from a person referred to in subsection (1) or (2) who is required to submit such sample and who requests to take it himself or herself.

 

(4) The Station Commander or other relevant commander must within 30 days furnish every bodily sample taken under subsection (1) or (2) to the authorised officer, who must carry out a forensic DNA analysis on every such sample in terms of Chapter 5B of the South African Police Service Act.

 

(5) Subject to section 36A(5), nothing in this Chapter prohibits—
(a) an authorised person from re-taking or supervising the re-taking of a buccal sample from any person referred to in subsection (1), (2) or (3), if the buccal sample taken from him or her was either not suitable or insufficient for forensic DNA analysis; or
(b) a registered medical practitioner or registered nurse from re-taking a bodily sample taken from any person referred to in subsection (1) or (2), if the bodily sample taken from him or her was either not suitable or insufficient for forensic DNA analysis.

 

(6) The forensic DNA profile derived from bodily samples, taken under any power conferred by this section, may be used to conduct a comparative search.

 

(7)

(a) Any forensic DNA profile derived from such sample, taken under any power conferred by this section must only be used for the purposes referred to in section 15F of the South African Police Service Act.
(b) The forensic DNA profile derived from bodily samples, taken under any power conferred by this section must be retained on, or removed from, the NFDD in accordance with the provisions of Chapter 5B of the South African Police Service Act.
(c) Any person who uses or allows the use of a bodily sample, crime scene sample or any forensic DNAprofile derived from such sample for any purpose other than as contemplated in paragraph (a), is guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine.
(d) Intimate samples may only be taken—
(i) by a registered medical practitioner or registered nurse; and
(ii) in accordance with strict regard to decency and order.

 

[Section 36D inserted by section 2 of Act No. 37 of 2013]