| (1) | For the purposes of this Chapter, unless the context indicates otherwise— |
| (a) | 'appropriate person' means any adult member of a child's family, or a care-giver of the child, which includes any person other than a parent or guardian who factually cares for a child, including— |
| (ii) | a person who cares for a child with the implied or express consent of a parent or guardian of the child; |
| (iii) | a person who cares for a child whilst the child is in temporary safe care; |
| (iv) | the person at the head of a child and youth care centre where a child has been placed; |
| (v) | the person at the head of a shelter; |
| (vi) | a child and youth care worker, who cares for a child who is without appropriate family care in the community; and |
| (vii) | a child at the head of a child-headed household, if such a child is 16 years or older; |
| (aA) | 'authorised officer' means the police officer commanding the Division responsible for forensic services within the South African Police Service, or his or her delegate; |
[Definition inserted by section 1(a) of Act No. 37 of 2013]
| (b) | 'authorised person' means— |
| (i) | with reference to photographic images, fingerprints or body-prints, any police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in the performance of his or her official duties; and |
| (ii) | with reference to buccal samples, any police official or member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, who is not the crime scene examiner of the particular case, but has successfully undergone the training prescribed by the Minister of Health under the National Health Act, in respect of the taking of a buccal sample; |
[Definition substituted by section 1(b) of Act No. 37 of 2013]
| (c) | 'body-prints' means prints other than fingerprints, taken from a person and which are related to a crime scene, but excludes prints of the genitalia, buttocks or breasts of a person; |
| (cA) | 'bodily sample' means intimate or buccal samples taken from a person; |
[Definition inserted by section 1(c) of Act No. 37 of 2013]
| (cB) | 'buccal sample' means a sample of cellular material taken from the inside of a person's mouth; |
[Definition inserted by section 1(c) of Act No. 37 of 2013]
| (d) | 'child' means a person under the age of 18 years; |
| (e) | 'Child Justice Act' means the Child Justice Act, 2008 (Act No. 75 of 2008); |
| (f) | 'comparative search' means the comparing by the authorised officer of— |
| (i) | fingerprints, body-prints or photographic images, taken under any power conferred by this Chapter, against any database referred to in Chapter 5A of the South African Police Service Act; and |
| (ii) | forensic DNA profiles derived from bodily samples, taken under any power conferred by this Chapter, against forensic DNA profiles contained in the different indices of the NFDD referred to in Chapter 5B of the South African Police Service Act; |
[Definition substituted by section 1(d) of Act No. 37 of 2013]
| (fA) | 'crime scene sample' means physical evidence which is retrieved from the crime scene or any other place where evidence of the crime may be found, and may include physical evidence collected from the body of a person, including a sample taken from a nail or from under the nail of a person; |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fB) | 'DNA' means deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes each species unique; |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fC) | ‘forensic DNA analysis’ means the analysis of sections of the DNA of a bodily sample or crime scene sample to determine the forensic DNA profile: Provided that this does not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the sex of that person; |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fD) | ‘forensic DNA profile’ means the results obtained from forensic DNA analysis of bodily samples taken from a person or samples taken from a crime scene, providing a unique string of alpha numeric characters to provide identity reference: Provided this does not contain any information on the health or medical condition or mental characteristic of a person or the predisposition or physical information of the person other than the sex of that person; |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fE) | ‘Independent Police Investigative Directorate Act’ means the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011); |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fF) | ‘intimate sample’ means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample; |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fG) | ‘National Health Act’ means the National Health Act, 2003 (Act No. 61 of 2003); |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (fH) | ‘NFDD’ means the National Forensic DNA Database of South Africa, established in terms of section 15G of the South African Police Service Act; |
[Definition inserted by section 1(e) of Act No. 37 of 2013]
| (g) | 'South African Police Service Act' means the South African Police Service Act, 1995 (Act No. 68 of 1995). |
| (2) | Any police official who, in terms of this Act or any other law takes the fingerprints, a body-print or buccal samples or ascertains any bodily feature of a child must— |
Words preceding Section 36A(2)(a) substituted by section 1(f) of Act No. 37 of 2013]
| (a) | have due regard to the personal rights relating to privacy, dignity and bodily integrity of the child; |
| (b) | do so in a private area, not in view of the public; |
| (c) | ensure the presence of a parent or guardian of the child, a social worker or an appropriate person; and |
| (d) | treat and address the child in a manner that takes into account his or her gender and age. |
| (3) | Buccal samples must be taken by an authorised person who is of the same gender as the person from whom such sample is required with strict regard to decency and order. |
[Section 36A(3) inserted by section 1(g) of Act No. 37 of 2013]
| (4) | Notwithstanding any other law, an authorised person may take a buccal sample or cause the taking of any other bodily sample with the consent of the person whose sample is required or if authorised under— |
[Section 36A(4) inserted by section 1(g) of Act No. 37 of 2013]
| (5) | Any authorised person who, in terms of this Chapter or in terms of any other law takes a buccal sample from any person, must do so— |
| (a) | in accordance with the requirements of any regulation made by the Minister of Police; and |
| (b) | in a designated area deemed suitable for such purposes by the Departmental Heads: Police, Justice and Constitutional Development or Correctional Services in their area of responsibility. |
[Section 36A(5) inserted by section 1(g) of Act No. 37 of 2013]
[Section 36A inserted by section 2 of Act No. 6 of 2010]
