| (1) | A police official must take the fingerprints or must cause such prints to be taken of any— |
| (a) | person arrested upon any charge related to an offence referred to in Schedule 1; |
| (b) | person released on bail if such person's fingerprints were not taken upon arrest; |
| (c) | person upon whom a summons has been served in respect of any offence referred to in Schedule 1; |
| (d) | person convicted by a court and sentenced to a term of imprisonment without the option of a fine, whether suspended or not, if the fingerprints were not taken upon arrest; |
| (e) | person convicted by a court in respect of any offence, which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subsection. |
| (2) | A police official may take or cause— |
| (a) | fingerprints to be taken of any person arrested upon any charge; or |
| (b) | fingerprints to be taken of a person deemed under section 57(6) to have been convicted in respect of any offence, which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subsection. |
| (3) | The fingerprints taken in terms of this section must be stored on the fingerprint database maintained by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act. |
| (4) | A police official may again take the fingerprints of any person referred to in subsection (1), if— |
| (a) | the fingerprints taken on the previous occasion do not constitute a complete set of his or her fingerprints; |
| (b) | some or all of the fingerprints taken on the previous occasion are not of sufficient quality to allow satisfactory analysis, comparison or matching; or |
| (c) | the fingerprints taken were lost, misfiled or not stored on the database. |
| (5) | The fingerprints taken under any power conferred by this section, may be the subject of a comparative search. |
(6)
| (a) | Subject to paragraph (c), any fingerprints, taken under any power conferred by this section— |
| (i) | must upon the conviction of an adult person be retained on a database referred to in Chapter 5A of the South African Police Service Act; |
| (ii) | must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and |
| (iii) | in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceedings with reference to such fingerprints or body-prints were instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified. |
| (b) | Fingerprints retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of missing persons, the identification of unidentified human remains or the conducting of a prosecution. |
| (c) | Subparagraphs (a)(i) and (ii) do not prohibit the use of any fingerprints taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence. |
| (d) | Any person who, with regard to any fingerprints, body-prints or photographic images referred to in this Chapter— |
| (i) | uses or allows the use of those fingerprints, body-prints or photo graphic images for any purpose that is not related to the detection of crime, the investigation of an offence, the identification of missing persons, the identification of unidentified human remains or the conducting of a prosecution; or |
| (ii) | tampers with or manipulates the process or the fingerprints, bodyprints or images in question; or |
| (iii) | falsely claims such fingerprints, body-prints or images to have been taken from a specific person whilst knowing them to have been taken from another person or source, |
is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.
| (7) | The National Commissioner must destroy the fingerprints of a child upon receipt of a Certificate of Expungement in terms of section 87(4) of the Child Justice Act. |
| (8) | Subsection (1)(d) applies to any person convicted of any crime, irrespective of the sentence, including— |
| (a) | any person serving such a sentence at the time of the commencement of this section; and |
| (b) | where applicable, any person released on parole in respect of such a sentence, irrespective of the fact that such a person was convicted of the offence in question, prior to the commencement of this section. |
[Section 36B inserted by section 2 of Act No. 6 of 2010]
