Expunging a Criminal Record
Expunging a Criminal Record: Definition and Overview
What Is Expunging a Criminal Record?
Expunging a Criminal Record refers to the formal legal process by which a person’s past convictions are removed or sealed from public records. Under South African law, this mechanism is governed primarily by section 271B of the Criminal Procedure Act 51 of 1977 (CPA), which allows for the expungement of convictions after a prescribed waiting period, subject to certain conditions. The key objective of expungement is to facilitate reintegration into society by eliminating barriers to employment, travel, and social inclusion that arise from a Criminal record.
Why Expunging a Criminal Record Matters
Having a Criminal record can have lifelong repercussions. It may hinder one’s ability to secure employment, obtain professional licenses, or qualify for certain educational opportunities. Through the process of expungement, individuals can clear their names, reducing the stigma and legal obstacles associated with past convictions.
The Legal Framework for Expunging a Criminal Record in SA
Statutory Provisions Governing Expungement
The primary statutory authority is section 271B of the CPA, introduced by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This provision outlines eligibility criteria, waiting periods, and procedural steps for expunging a Criminal record. Important subsections include:
- Section 271B(1): Defines “eligible offences” and the required waiting period after sentence completion.
- Section 271B(2): Provides for presidential proclamation of further offences eligible for expungement.
Eligibility Criteria Under Section 271B
To apply for Expunging a Criminal Record, the applicant must:
- Have completed the sentence at least ten years prior (five years for minor offences).
- Have no subsequent convictions.
- Not have been sentenced to imprisonment without the option of a fine for an offence referred to in Schedule 2 of the CPA.
Application Process and Judicial Discretion
Applicants must submit a written application to the Registrar of the relevant regional court, including certified copies of their sentence records and proof of sentence completion. The court retains discretion to refuse if expungement is not in the interests of justice (S v] Van der Merwe [2011] ZAGPPHC 63 at para 15).
Step-by-Step Guide to Expunging a Criminal Record
Initiating the Application
Begin by obtaining certified copies of one’s Criminal record from the South African Criminal Record Centre. Prepare a formal application citing section 271B of the CPA and referencing the relevant case law.
Gathering Supporting Documentation
Essential documents include:
- Certified copy of the final sentence.
- Proof of sentence completion (e.g., certificate of good conduct).
- A letter explaining rehabilitation efforts and current standing in the community (optional but recommended to persuade the court).
Filing with the Regional Court
Submit the application to the Registrar’s Office at the regional court that handled the original conviction. Pay the prescribed filing fee as per the Magistrates’ Courts Act 32 of 1944.
Court Hearing and Decision
A judge will review the application, consider the statutory criteria and any representations. If granted, the court issues an order for Expunging a Criminal Record, instructing relevant agencies to seal or destroy the records.
Post-Expungement: Effects and Limitations
Legal Effects of Expungement
Once expunged, the convicted person may lawfully deny the conviction in most contexts, including employment and travel. Exceptions apply for certain security or judicial roles where full disclosure is mandatory by statute.
Limitations and Exceptions
Expungement does not automatically remove the conviction from international databases, and certain government bodies, such as the National Prosecuting Authority, may retain confidential records.
Common Pitfalls and How to Avoid Them
Missing the Waiting Period
Failing to respect the statutory waiting period under section 271B can lead to summary rejection of the application.
Incomplete Documentation
An application lacking certified records or proof of sentence completion will not proceed to a hearing.
The Role of the Right Attorney in Your Application
Securing the right Attorney—especially one familiar with criminal appeals and expungement procedures—can significantly enhance your application’s success rate. Reliable attorneys will ensure all court requirements are met and represent your interests at the hearing.
Considering Lawsuit Risks and Rehabilitation Evidence
While filing for expungement is not a lawsuit, any challenge or appeal by the State can turn into adversarial proceedings. Presenting substantial evidence of rehabilitation, such as community service records or employment history, helps mitigate this risk.
Affordable Attorneys: Balancing Cost and Quality
Many applicants hesitate due to legal fees. Look for attorneys who offer payment plans or pro bono services for qualifying individuals; affordable attorneys can still provide quality representation without imposing undue financial strain.
FAQ
What is the cost of expunging a criminal record in South Africa?
The filing fee in regional courts is set by the Magistrates’ Courts Act and varies; however, legal fees charged by attorneys may range depending on complexity.
How long does the expungement process take?
Typical processing time spans six to twelve months, depending on court schedules and any objections.
Can all offences be expunged?
No. Section 271B lists eligible offences, and certain crimes—especially those in Schedule 2—are excluded unless the President proclaims otherwise.
Do I need an attorney to apply for expungement?
While not mandatory, the right Attorney can navigate procedural nuances and represent you effectively in court.
What if my application is refused?
You may petition the High Court for judicial review of the refusal based on administrative law principles (Promotion of Administrative Justice Act 3 of 2000).
Will expungement remove all traces of my conviction?
It seals records in South Africa but does not guarantee removal from international or private databases.
Can I travel abroad after expungement?
Most countries require disclosure in visa applications; however, presentation of a court order may suffice to waive disclosure in some jurisdictions.
How does expungement affect employment checks?
Once expunged, employers conducting routine Criminal record checks in South Africa should not see the conviction.
Are suspended sentences eligible for expungement?
Yes, provided the waiting period is observed from date of sentence completion.
Does expungement erase my criminal history on my ID document?
No, national ID documents remain unchanged; the effect is limited to judicial and law enforcement records.
References
| Authority | Citation | Substance & Importance |
|---|---|---|
| Criminal Procedure Act 51 of 1977 | s 271B | Governing statutory framework for expungement |
| S v Van der Merwe | [2011] ZAGPPHC 63 at para 15 | Judicial discretion principles in expungement matters |
| Promotion of Administrative Justice Act 3 of 2000 | s 33 | Grounds for judicial review of administrative refusals |
Useful Links
- Department of Justice and Constitutional Development: Expungement Guidelines – Official guidelines clarifying procedures.
- Legal Aid South Africa – Resources for affordable attorneys and assistance.
- African National Congress Legal Resources – Historical and statutory background on Criminal justice reform.
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE).
