July 27, 2017

A guide to expunging a criminal record

For some, an ill-fated decision as a youngster resulted in a criminal conviction which impeded them when trying to advance their careers. With the passing of time and maturity comes the decision to have their criminal record expunged.

Section 271B(1) allows a person to make a written application to the Director-General: Justice and Constitutional Development for the expungement of their criminal record. The person wishing to make an application for the expungement of their record may only do so if:

  • 10 years have lapsed after the date of conviction of that offence; and
  • the person has not been convicted of any other offence and sentenced to a period of imprisonment without the option of a fine during those 10 years.

The sentences imposed which are considered to be capable of being expunged under Section 271B(1) are as follows:

  • where the passing of the sentence was postponed;
  • a sentence discharging the person with a caution;
  • a sentence in the form of a fine not exceeding R20000.00;
  • corporal punishment;
  • imprisonment with the option of a fine not exceeding R20000.00;
  • a sentence of imprisonment which was wholly suspended;
  • correctional supervision

Where a person has been convicted of a sexual offence against a child or a person who is mentally disabled and whose name has been included in the National Register for Sex offenders or whose name has been included in the National Child Protection Register as a result of a conviction for an offence would not qualify to have the criminal record in question expunged in terms of this section. Such a person would only be able to have their criminal record expunged if their name has been removed from the National Register of Sex Offenders.

A person intending on making an application for the expungement of their criminal record will first need to obtain a clearance certificate from the police. This will need to show that a period of ten years has lapsed after conviction and sentence and that they have not been convicted of any other offence. The clearance certificate must be attached to the application in order for it to be considered by the Director-General.

Further, if a person’s name has been included in the National Register for Sex Offenders and/or the National Child Protection Register, confirmation needs to be obtained from the Registrar or the Director- General: Social Development stating that the person has been removed from the register.

The application form will need to be posted or hand delivered to the Director- General Justice and Constitutional Development for consideration. In the event that the Director-General is satisfied that the application meets the requirements as set out in the Act, he will issue a certificate of expungement  directing that the conviction and sentence be expunged.

The Certificate of Expungement is then submitted to the head of the Criminal Record Centre of the South African Police Services. The head of the Criminal Record centre will provide written confirmation, within 21 working days, after receiving the certificate of expungement, that the conviction and sentence in question has been expunged.

The turnaround time from the date of lodging your application to date of confirmation of expungement is approximately 4 months.

Author: Marisa De Aguiar

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