‘Expungement is a procedure which results in the lawful clearance and removal of a criminal record on an individual’s record from the National Criminal Register.’
In most instances people believe that a criminal record is something that you carry with you for the rest of your life. This is the case for serious crimes such as murder or robbery, but what about, as an example, the drunk driving charge that you pleaded guilty to when you were an irresponsible student?
One can obtain a criminal record for any crime committed, including drunk driving, common assault, reckless driving, shoplifting, trespassing or even something as simple as saying something that defames a person’s character. Some people are embarrassed about the offence committed, or, as an example, don’t want to tell their parents about the offence committed and simply plead guilty to a charge or sign an admission of guilt fine, which leads to a criminal conviction and subsequently, a criminal record.
As a result of this, you could find yourself in a position where you are unable to gain employment (as most employers require a police clearance certificate before employing a person) or you are unable to travel freely outside of South Africa as they may not be able to obtain the necessary visas required to enter into another country.
In order to remedy your status as a ‘convicted criminal’, you can apply for the expungement of the criminal record. This process was designed so that, among other things, the past would not be a hindrance to future employment or travel opportunities. The purpose of being allowed to expunge a criminal record for a minor offence was also intended to assist anyone convicted of certain crimes that were committed during the apartheid-era.
The expungement of a criminal record is a legal process, in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977), as amended (“the Act”), where you apply to the Director-General of Justice and Constitutional Development to remove any record of previous ‘minor criminal’ offences from the National Criminal Register of the South African Police Service (“SAPS”).
According to Section 217B (1) of the Act, you can apply to have your criminal record expunged if:
· A period of 10 (ten) years has passed after the date of the conviction for that offence; or
· You have not been convicted and sentenced to a period of imprisonment without the option of a fine during those 10 (ten) years; or
· The sentence was corporal punishment; or
· The sentence was postponed, or you were cautioned and discharged; or
· The sentence was a fine not exceeding R20 000.00; or
· The sentence was imprisonment with the option to pay a fine (not more than R20 000) instead of serving the period of imprisonment; or
· The sentence of imprisonment was suspended wholly; or
· The sentence was correctional supervision in terms of section 276(1)(h) of the Act; or
· The sentence was imprisonment in terms of section 276(1)(i) of the Act; or
· The sentence was periodical imprisonment in term of section 276(1)(c) of the Act; or
· Proof is provided that your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.
Notwithstanding what is set out above, a person will not qualify for expungement if:
· A period of 10 (ten) years has not lapsed from the date of the conviction; or
· A person was sentenced to direct imprisonment; or
· A fine of more than R20 000.00 was imposed; or
· A person was sentenced to direct imprisonment (the imprisonment was not suspended and there was no option to pay a fine) during the relevant 10 (ten) year period; or
· Their name is included in the National Register for Sex Offenders or the National Child Protection Register and their name has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
In terms of the process, one will first file an application with the Director-General of Justice and Constitutional Development requesting expungement. If the Director-general is satisfied with the application and all the requirements to expunge your record have been a met, a certificate of expungement will be issued by the Director-General to the Criminal Record Centre of the South African Police Service. The Head of the Criminal Record Centre will inform the applicant in writing that their conviction/s and sentence/s have been expunged.
*Please note this process usually takes several weeks to complete.
We at Kern, Armstrong and Du Plessis have the experience and will take care of the entire process for you, with minimal effort required from you. Please contact us to set up a consultation to discuss the process and how we can assist you.