EXPUNGEMENT OF A CRIMINAL RECORD
When charged with a crime, the importance of having reliable, trustworthy and experienced legal assistance at your disposal cannot be over emphasized. In practice however, many people do not have access to good legal representation, receive poor advice or may themselves end up making bad decisions in their case. This could ultimately result in a criminal conviction. Where somebody has been found guilty or has pleaded guilty to an offence in Court, or in certain cases, paid an admission of guilt fine to the Police, that person will have a criminal conviction recorded against their name in the criminal record database. Where such a criminal conviction is not successfully appealed, it will remain as a blemish against that person’s record for the rest of their life. The criminal justice system and the Courts in general also regard people who have previous criminal convictions with far more circumspection, should they ever be charged with another offence.
Expungement of a criminal record is a process by which a criminal record of a convicted offender is expunged (or removed) from the criminal record database of the Criminal Record Centre of the South African Police Service.
This allows a person to carry on with life without a criminal record being an obstruction to their present or future employment and other opportunities. Although this service is rendered free of charge by the Department of Justice and Constitutional Development, it is often beneficial to your case to have an attorney assist you in completing and submitting your application.
There are certain prerequisites in order for a person to qualify for the expungement of a criminal record:
- a period of 10 years must have passed since the date of the conviction for that offence, and;
the person must not have been convicted and sentenced to a period of imprisonment without the option of a fine during those 10 years.
Only convictions where the following sentences were ordered will qualify for expungement:
where the sentence was corporal punishment;
where the sentence was postponed or the person was cautioned and discharged;
when the sentence was a fine not exceeding R20 000;
When the sentence was imprisonment with the option to pay a fine (not more than R20 000) instead of serving the period of imprisonment;
where the sentence of imprisonment was wholly suspended;
where the sentence was correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act;
where the sentence was imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act;
where the sentence was periodical imprisonment in terms of section 276(1)(c) of the Criminal Procedure Act;
where proof is provided that a person’s name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.
Expungement of a criminal record will not be possible in the following circumstances:
- where a person’s name is included in the National Register for Sex Offenders or the National Child Protection Register and his or her name has not been removed from the National Register for Sex Offenders or the National Child Protection Register;
where a person was sentenced to direct imprisonment;
where a fine of more than R20 000 was imposed;
where a period of 10 years has not lapsed after the date of the conviction;
where a person was sentenced to direct imprisonment (the imprisonment was not suspended and there was not the option of a fine) during the relevant 10 year period.
The Expungement Process
An expungement application must be submitted on the prescribed application form and same must also be accompanied by the following attachments:
- A clearance certificate from the Criminal Record Centre of the South African Police Service issued on a date 10 years after the conviction(s) and sentence(s).
Confirmation stating that your name has been removed from the National Register for Sex Offences or the National Child Protection Register (if your name has been included in any of these registers).
The completed application form (Part II and Part III), together with the attachments must be posted to:
Department of Justice and Constitutional Development:
Private Bag X81
or delivered by hand to:
Department of Justice and Constitutional Development:
329 Pretorius Street
If the Director-General is satisfied that a person meets the requirements, he or she will issue a certificate of Expungement directing that the conviction(s) and sentence(s) of the person be expunged. This process takes approximately 3 months. The Certificate of Expungement issued by the Director-General, will be submitted to the head of the Criminal Record Centre of the South African Police Service within 14 working days after the Director-General has issued it.
If the application for Expungement is refused, the person will be informed by post of such and the reasons for the decision. The head of the Criminal Record Centre of the South African Police Service will, within 21 working days after his or her receipt of the Certificate of Expungement, confirm to the person in writing that the conviction(s) and sentence(s) in question has/have been expunged.
Once a criminal record has been expunged, it will be as if it never existed in the first place and a successful applicant will essentially have a “clean slate” once again.
If you have a criminal conviction you wish to have expunged, arrange a consultation with one of our attorneys to ascertain whether you meet the necessary criteria.