LAW FOR
POLICING III
CHAPTER 14: GENERAL METHODS OF OBTAINING EVIDENCE
INTRODUCTION

Evidence must be obtained in a manner which is consistent with the
Constitution, 1996. The provisions of the empowering legislation (“the
Criminal Procedure Act”) must be adhered to in order to avoid
infringements of the rights of individuals.

The Constitution is the supreme law of South Africa. Any law or conduct
inconsistent with is invalid.

The rights in the Bill of Rights may only be limited in terms of section 36 of the
Constitution which is also known as the limitations clause.
ASCERTAINING BODILY FEATURES
INTRODUCTION

In the investigation of criminal offences, police officers are often times
required to ascertain the bodily features of suspects in order to properly
identify the correct persons.

The techniques of police officers have a big impact on the criminal justice
system when the trial commences and the evidence of the identity of the
accused has to be led in court.

Bodily features of persons do not include a person’s learned abilities, but
they include, for instance palm-prints and buccal contents.
ASCERTAINING BODILY FEATURES
INTRODUCTION

Ascertaining the bodily features of a person does not violate the person’s
privilege against self-incrimination.

However, police must still act in terms of the requirements of Chapter 3 of
the Criminal Procedure Act, which governs the ascertainment of bodily
features.

If a police officer does not comply with the above legal requirements, the
evidence thus obtained (e.g a blood sample) may be excluded at the
criminal trial.
ASCERTAINING BODILY FEATURES
OF CHILDREN

When bodily features of children are to be ascertained and samples taken
under the Criminal Procedure Act, the police officer must do this in private
and ensure that the child’s parent, guardian, social worker or other
appropriate person is present.

The rights of the child to privacy, dignity and bodily integrity must be
respected.
TAKING OF FINGER-PRINTS

Section 36B(1) provides for the compulsory/mandatory taking of finger-prints on certain
categories of persons.

These are persons: (i) arrested on any charge in regards to an offence referred to in
Schedule 1;

(ii) persons released on bail if their fingerprints were not take at the time of arrest;

(iii) persons who have been served with a summons for a crime listed in Schedule 1;

(iv) persons convicted and sentenced to prison without the option of a fine whether
suspended or not (if their fingerprints were not taken upon arrest);

(v) persons convicted of any offence declared/designated by the Minister for the purpose
of this section.
TAKING OF FINGER-PRINTS

A police officer may take the fingerprints of the above persons again at a later stage.

In practice, police officers do take additional fingerprints of accused persons at their court
appearance if the evidence which will be led will depend on fingerprints lifted on the crime
scene.

This is done for a legitimate reason to ascertain if the accused has not been obliterating his
fingerprints.

A person who has been arrested on any charge may also have their fingerprints taken.

In S v Huma & Another the Constitutional Court ruled that taking of a person’s fingerprints
does not violate the person’s constitutional rights. Study page 339 for the reasons advanced
by the court.
TAKING OF FINGER-PRINTS

FINGERPRINTS AND BODY PRINTS FOR INVESTIGATION

A police officer may, without a warrant, take finger and body prints of any person whom
he reasonably suspects of having committed an offence in Schedule 1.

Section 36D(2) authorises the taking of buccal samples, bodily samples and crime scene
samples. It specifies the categories of persons on whom these powers may be exercised by
an authorised person. A buccal sample is obtained from inside the mouth of a person
towards the check.

The above samples may be obtained from any person: (i) who has been arrested before
his first appearance in court; (ii) who has been released on bail for any offence if a sample
was not taken from him; (iii) who has been served with a summons for any offence; (iv)
whose name appears on the National Register For Sex Offenders; (v) who has been
charged with or convicted of any offence declared by the Minister.
TAKING OF BODILY SAMPLES

BODILY SAMPLES FOR INVESTIGATION PURPOSES

Section 36E(1) provides for persons in respect of whom authorised persons may take
buccal samples for purposes of investigations.

An authorised person may take a buccal sample from a person who consents to that if
there are reasonable grounds to suspect that the person committed an offence in
Schedule 8 and believes that a buccal sample will be of value in the investigation of the
person.

If the person does not consent, then in terms of section 36E(2) the authorised person may
apply for a warrant to a magistrate or judge. The judicial officer will grant a warrant if: (i)
there are reasonable grounds for believing that the suspect has committed an offence in
Schedule 8 and that a buccal sample will be of value in the investigation by including or
excluding that person.
TAKING OF BODY PRINTS

A police official may take body prints of any person:

(i) who is arrested upon a charge;

(ii) released on bail;

(iii) arrested in terms of section 40(1)(n), (o) or (p) of the CPA;

(iv) who is summoned to appear in court in respect of a Schedule 1
offence or any offence allowing the suspension, cancellation or
endorsement of any licence, permit;

(v) who is convicted by a court or deemed to be convicted.
IDENTIFICATION

The evidence of a witness regarding the identification of a suspect or accused is treated
with caution by the court because they might make mistakes.

Study page 341 of the textbook on what should happen if a police officer arrests a suspect
at a crime scene. An identity parade must be arranged.

Section 37(1)(b) of the CPA makes provision for police officials to cause an arrested person
to be made available for identification. This includes identity parades.

A police official may determine the condition, position and clothing of the persons to be
lined up at the identity parade, including the accused.

Evidence of an identification parade usually offers the state a higher evidential force than a
dock-identification. It therefore offers reliable evidence.
IDENTIFICATION PARADE
PROCEDURE

1. The police official should record the proceedings on a SAPS 329 form.

2. The investigating officer should not be in charge of the parade.

3. The suspect should be informed of the purpose of the parade and be given a reasonable
opportunity to obtain legal representation.

4. The suspect should be informed that a court can draw an adverse (negative)
inference(conclusion) if he should refuse to partake in the parade.

5. There should be one suspect and at least 8 other persons in the line up.

6. The suspect and the other persons on the line-up should be similarly dressed and be of the
same build, height, appearance and age.

7. Photographs of the parade line-up should be taken.
IDENTIFICATION PARADE
PROCEDURE

8. The officer in charge of the parade should ask the suspect to choose their place in the
line-up.

9. Witnesses should be kept separately and not be allowed to communicate.

10. Before the start of the parade, the witnesses should not be allowed to see any member
of the parade (including the suspect).

11. Neutral police officers should escort witnesses separately from each other.

12. The police officer in charge should inform the witness that the suspect might not be
present in the line-up.

13. The officer in charge should request the witness to make his selection by tapping the
individual on their shoulder.

There are alternatives to the live identity parade. Study page 347-348 of the textbook.
BODY PRINTS AND BODILY
APPEARANCES

Section 37(1)(c) of the CPA provides that any police officer may take such
steps as he may deem necessary in order to ascertain whether the body of
any person mentioned in section 36B(1)(a) or (b) has any mark,
characteristic or distinguishing feature or shows any condition.

This may find application where a suspect has a tattoo, for instance, which
may throw some light on the suspect’s identity or even possible motive.

A police officer may not examine the body of a person who is of a different
gender from his. This applies to arrested persons and those who have been
released on bail.
PHOTOGRAPHIC IMAGES

Study page 349 of the textbook on photographic images of persons in
terms of section 37(1)(d).
DATABASE OF PRINTS, IMAGES AND
DNA

There is a national database for body- and finger-prints, photographs and
DNA under the Police Service Act.

This database allows police officers to do comparative searches for
investigative purposes. Study pages 350-351.
ASCERTAINING BODILY FEATURES
AGAINST PERSON’S WILL

Section 37 read with section 225(2) of the CPA provides that evidence of
finger-prints, bodily samples etc, of an accused will not be rendered
inadmissible merely because it was obtained against the will of the accused
or that the requirements of section 36A,36B,36C,36D,36E or 37 were not
complied with.

With regards to fingerprints, it is clear that according to S v Huma the taking
of such evidence against the will of the accused does not violate the
Constitution.
ASCERTAINING BODILY FEATURES
UNDER A COURT ORDER

In other circumstances not covered by the previous provisions, a court
before which criminal proceedings are pending may order that finger-prints,
body prints or a blood sample be taken from the body of any accused in
order to ascertain whether the body of any such person has any mark,
characteristic or distinguishing feature or shows any condition or
appearance. Study pages 352-3 of the text book.

A court may also order the HIV testing of an alleged offender in regards to a
sexual offence at the application of the victim or the investigating officer.

This is done where the victim was exposed to the risk of being infected with
HIV in the commission of an offence.
RECORDS OF BODILY FEATURES TO
BE DESTROYED

Persons whose bodily features were ascertained in terms of Chapter 3 of the
CPA will be retained on the SAPS database after they have been convicted.

In cases where a decision has been made not to prosecute a person or the
person is found not guilty at trial or his conviction is overturned on appeal or
they are discharged at a preparatory examination, their finger-prints or
images or body prints must be destroyed.

The Firearms Control Act also contains provisions empowering police officials
to ascertain bodily features of suspects in offences related to firearms.
THE
END