An expungement is an application whereby you remove your criminal record from your name. After your criminal record is expunged, it would appear as if the criminal conviction never happened.
Do you qualify for an expungement?
In terms of Section 271 of the Criminal Procedure Act, an application for expungement of a criminal record can be brought after ten (10) years after the conviction.
It is important to note that the following needs to be in place before the application can be considered:
10 years should have elapsed;
The fine should not exceed R20,000.00.
It is important to remember that the person convicted should have been sentenced to a period of imprisonment with the option of a fine. If the court did not grant the option of a fine the convicted person will not be able to apply for an expungement.
When will you not qualify for an expungement?
You will not be able to qualify for an expungement if:
- you were condemned of a sexual offence against a child or a mentally challenged person;
- your name appears in the National Register for sex offenders or the National Child Protection Register;
- your fine is over R20,000.00; and
- you have been incarcerated for a serious crime without the option of a fine.
What can be done if I do not qualify for an expungement?
You can apply for a presidential pardon. A presidential pardon is complete forgiveness of the crime. According to our constitution, the decision to pardon can only be done by the South African President.
The process is long as it can take up to two years or more to finalise due to the involvement of various role players.
What is the process for the expungement?
You will need to obtain a police clearance certificate in order to establish all the details of the offence and conviction. Such a certificate can be obtained from your nearest police station.
If a person’s name has been included on the National Register for sex offenders, a confirmation letter must be obtained from the Registrar that his/her name has been removed from the register.
If the person’s name has been included on the National Child Protection Register, a confirmation letter or certificate must be obtained from the Director-General.
Once you have obtained the above, you will complete the expungement application and it must be delivered by hand to the Director-General: Department of Justice.
If the Director-General is satisfied that a person meets the requirements set out in section 271B(1) of the Act, 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.
If the application for expungement is denied, the person will be informed of this decision via post, together with the reasons for this decision.
The head of the Criminal Record Centre of the South African Police Service will, within 21 working days, confirm to the person in writing that his/her conviction(s) has been expunged.
You will then obtain a police clearance certificate that confirms that you have no conviction(s).
How long does an expungement take?
Expungements can take anything from 6weeks to 6months.
An expungement process is not easy and requires knowledge of the legal system. Contact Burger Huyser Attorneys for assistance regarding your expungement.