Start fresh

Anyone with a criminal record faces considerable obstacles in getting a job. This is the case even for minor offences, especially now that COVID-19 has hit the job market hard. However, if the conviction is 10 years old or more, the criminal record may be expunged…in other words, wiped clean.

What does expungement mean in practice?

Expungement is a legal process that allows the Department of Justice to remove the record of minor criminal offences from the criminal record database of SAPS.

Expungement is a fairly new feature of the criminal justice environment, coming into effect as recently as 2009. The process is enshrined in the Criminal Procedure Act, 1977 (Act 51 of 1997), which was designed to make it easier to clear one’s name of a minor offence, removing an obstacle to employment opportunities. The Act was also designed to erase the record of crimes committed during the apartheid era.

Who is eligible for expungement?

According to Section 217B(1) of the Criminal Procedure Act, anyone can apply to have a criminal record expunged if:

• It has been 10 years since the date of the conviction (or five years if the individual convicted was 18 or younger at the time).
• It was a minor offence, such as petty theft or shoplifting.
• There was no other offence committed (and convicted) at the same time and there was the option of a fine rather than imprisonment.
• By paying a fine the individual was told there would not be a criminal record but  subsequently a record has been discovered.
• The fine was less than R20 000.
• The sentence was suspended.
• The individual’s name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

Expungement is not possible if:

• It has been less than 10 years since the conviction.
• The individual’s name is either listed in or has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
• There was no option of a fine and there was a mandatory custodial sentence.
• The fine was more than R20 000.
• Conviction was for a serious crime such as murder, rape, other sexual offences, or violent crimes.

What are the steps in the expungement process?

1. A clearance certificate must be obtained from the Criminal Record Centre of the SAPS proving 10 years has elapsed since the conviction. This certificate must be attached to the application.
2. The expungement application forms (Part II and Part III) must be completed and, together with the clearance certificate, posted or hand delivered to the Department of Justice and Constitutional Development in Pretoria.
3. If the application is successful, the applicant will be notified in writing that the crime has been expunged. Equally, there will be receive written notification if the application is denied, citing the reasons for the decision. The process takes on average three months.

What expungement means for employment 

South Africa suffers from high unemployment, particularly among the youth, as well as widespread poverty, massive inequality and low growth. The consequences of COVID-19 and the contraction of key industries such as hospitality have stifled growth and prosperity even further.

Finding a job is hard enough without a criminal record. Employers commonly run background checks on potential employees and they are within their rights to refuse employment to someone with a criminal record, however minor the crime, so it makes sense to apply for expungement. Future background checks will then not reflect prior convictions.

We all make mistakes, especially when we are young. A youthful mistake shouldn’t ruin a bright future.

We’re here to help

Cape Town law firm SD Law is an expert in criminal defence, including DUI and possession of drugs. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.