Justice should be blind. But the police don't have to be

June 18 was a tougher day than most for Desire Sprenger. It marked the second anniversary of the death of her husband, Dr Michael Sprenger, who had been murdered on a midwinter night in 2009 while working late in his Rosettenville, Johannesburg rooms.

Michael had been stabbed 21 times, his throat was slit and his body set alight and burnt beyond recognition.

In the ensuing blaze, his dispensary was destroyed - as were the lives of his widow and the three young children who survived him.

Until then, Sprenger had, she said, led a sheltered life in her family's Atholl home. Nothing could have prepared her for the murder of her husband of 12 years or the unimaginably gruesome details she had to digest the following afternoon.

At Mike's practice in The Prairie Centre, Sprenger discovered he had been dismembered and that the police had neglected to remove his legs from the crime scene. Nor had they secured the scene.

To make matters worse - if that were possible - 10 months after Mike's death, samples of his tissue sent to the police's Silverton forensic lab for DNA identification were declared non-viable.

"Mike's heart, lungs and all his internal organs were intact. The police had plenty of viable tissue to use but they sent charred tissue for analysis. They also had his dental records," said Sprenger.

So, in the face of persistent rumours that the body Sprenger had laid to rest 14 months earlier was not Mike, that he'd been in Germany with a lover and the fire was a ruse, Sprenger, at the insistence of the police, agreed to exhume his body. Matching recovered DNA with his children's DNA proved conclusively that the body was indeed his. His dental records were never used.

In October last year, Sprenger lodged a complaint with the Independent Complaints Directorate and the matter was transferred to the Hawks.

"It's now two years since Mike died. Still no witnesses have been questioned other than a brief two-minute statement taken on the night of his murder from the last person known to have seen him alive," she said.

As far as Sprenger is concerned, general police ineptitude and lack of awareness of the importance of DNA profiling means she suffered "secondary victimisation".

Former Cape Town commercial lawyer Vanessa Lynch faced the same lack of police and public awareness of DNA in the wake of the murder of her father, John Lynch, in his Johannesburg home seven years ago.

According to Lynch, medics attending to her father discarded his clothing, which may have contained DNA evidence. Family members and friends inadvertently destroyed the crime scene by clearing away all blood and evidence of the crime and police threw away a bottle of brandy, saying South Africa didn't have technology to uplift DNA from a bottle.

"All evidence linking the criminals to my Dad's death was destroyed and the opportunity to link the perpetrators to his murder lost forever. Still no one has been arrested," said Lynch.

Today, Lynch is executive director of the DNA Project, a nonprofit organisation lobbying for an expanded national DNA database and the use of DNA as a crime-fighting tool.

"DNA places the criminal at the scene forever and is much more reliable than any other form of evidence," Lynch said. "No matter what criminals take, they always leave something behind - it's almost impossible not to leave some DNA evidence at a crime scene."

Legislation governing this area of the law - the Criminal Procedures Act of 1977 - was promulgated before the advent of DNA profiling as a criminal intelligence tool.

"Technology has progressed way beyond the law and requires its own regulation to prevent improper use," said Lynch.

"The only way to tackle crime is to establish a larger DNA reference database of everyone arrested as well as all convicted offenders. When police collect genetic material at a crime scene, it can be compared with a larger reference base of profiles of known suspects increasing the likelihood of a match." (The South African database contains only about 121000 profiles.)

Since South Africa has the highest recidivism rate and lowest conviction rate in the world, there's a good chance someone who commits a crime has already been convicted and has a recorded profile. The more profiles entered on the national DNA database, the greater the chance of a match when a crime scene profile is entered.

Although forensic labs play a crucial role in fighting crime, South Africa has only two fully functional forensic DNA labs and the existing DNA database does not contain enough reference profiles for use as a criminal intelligence tool.

The head of the Forensic Science Laboratory, Major-General Edward Ngokha, said: "In future, if we're looking for suspects in 20 cases, we might find all those crimes are committed by one person. Where there's no known suspect, repeat offenders could be easily identified. This would reduce police work and prison overcrowding."

Increased probability of arrest and prosecution might also act as a crime deterrent - but just how police will deal with the explosion of samples on an expanded database remains to be seen.

New DNA legislation, the Criminal Law (Forensic Procedures) Amendment Bill, proposes that the SA Police Service collects DNA samples from all people arrested, and administer a national DNA database. The bill seeks to govern the way the database is managed, for how long profiles can be stored and which profiles should be retained.

The bill was drafted in 2008, yet only the section of the bill dealing with fingerprint legislation has been adopted. "After the bill was tabled in parliament, we received many submissions about DNA-related human rights issues. These needed investigation," said MP Sindi Chikunga, chairma n of the parliamentary portfolio committee on police .

DNA-profiling critics consider it an invasive form of surveillance that constitutes a serious threat to democracy and violation of individual constitutional rights. Issues that need to be urgently addressed include ensuring DNA evidence is properly collected and preserved, that the database is secure, the rights to privacy and human dignity, and the constitutionality of retaining innocent people's DNA on a criminal database.

Clearly, an expanded DNA database has the potential for abuse as well as reform. So last week Chikunga, members of her committee and advisers departed on a fact-finding mission to Canada and the UK to evaluate international best practice.

Meanwhile, R3-billion allocated in 2009 from the budget to the Criminal Justice System Review for restructuring criminal justice services - including expanding the criminal DNA database - has never been fully allocated. Ngokha said he knew nothing about this amount. Nor was he willing to comment on implementation costs of the new bill or detail development plans.

"Crime is a living entity. We'll go where the crime is," was all he was willing to say. "We'll establish DNA labs where we've identified needs."

The good news is that a state-of-the-art lab is being built in Plattekloof in Cape Town, construction is under way on a lab in Eastern Cape and plans are afoot for a KwaZulu-Natal lab. "A backlog of 20000 cases was eradicated last year. We can deliver DNA results in major crime cases in less than 24 hours and 92 % of cases in this lab should be completed in 28 working days. This means we won't need 50 detectives working on one case for months or have people in custody as awaiting-trial offenders for months and years," he said.

The value of DNA profiling lies in its ability to exonerate the innocent as well as convict the guilty, to include or exclude suspects as well as those implicated or convicted by eye-witness testimony or flimsy evidence. US Innocence projects utilising DNA evidence have succeeded in freeing 266 people from prison - 17 of whom were on death row for crimes they never committed.

Whether the right to privacy outweighs the right to safety and security is moot; with increasing risks of terrorism and global crime, efforts to link individual databases into a single international database are escalating. Interpol's DNA database already contains profiles shared by 49 countries.

And while politicians and human rights activists debate the pros and cons, Desire Sprenger 's suffering continues and violent criminals get away with murder.

Raphaely is a member of the Wits Justice Project, which investigates alleged miscarriages of justice