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5 May 2009

The Criminal Procedure Amendment Act provides for three different categories of criminal records which will fall away as previous convictions or be expunged. Sections 2 and 3 of the Amendment Act, which comes into operation on 6 May 2009, effect certain amendments to the Criminal Procedure Act, 1977, in order to allow for the expungement of criminal records relating to certain criminal convictions.

There are two main categories of criminal records which qualify for expungement.

First category:

A person can apply in writing to the Director-General of the Department of Justice and Constitutional Development, to have a criminal record expunged. Such a person will, however, only qualify to have the criminal record expunged if the following requirements are met:
(i) The person must have been convicted of a minor offence. Minor offences are determined by the type of sentence the court imposed on the person for the offence.
(ii) The criminal record of such a person may, however, only be expunged after a period of 10 years has elapsed since the date of conviction of that offence, and that person has not, during that 10 year period, been convicted of an offence for which he or she was sentenced to a period of imprisonment without the option of a fine.

(This, however, does not apply to persons convicted
* of sexual offences against children whose names have been included in the National Register for Sex Offenders in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; and
* of certain offences under the Children's Act, 2005, whose names have been included in the National Child Protection Register, unless their names have been removed from the said registers in terms of these two Acts.)

(iii) Applications must be made to the Director-General of the Department of Justice and Constitutional Development on forms that have been developed specifically for this purpose. If satisfied that the applicant complies with the above requirement, the Director-General must issue a certificate of expungement which must be submitted to the head of the Criminal Record Centre of the South African Police Service (SAPS). This certificate of expungement serves as authority for the Record Centre to expunge the record in question.

Second category (“Apartheid” offences):

The Amendment Act also makes provision for the expungement of criminal records of persons who were convicted of offences under so-called “Apartheid” legislation enacted before the Constitution took effect. If these records are for some reason not expunged automatically by the head of the Criminal Record Centre, the convicted person may apply to the Director-General: Justice and Constitutional Development for a certificate of expungement to be issued. Again, if satisfied that the applicant was convicted of a contravention of one of the above provisions and the record has not been expunged automatically, the Director-General must issue a certificate of expungement which must be submitted to the head of the Criminal Record Centre of the South African Police Service. This certificate of expungement serves as authority for the Record Centre to expunge the record in question.

The Amendment Act also provides for an application procedure to the Director-General of Justice and Constitutional Development by a person who was convicted of an offence in terms of legislation which was enacted in the former Republic of South Africa or the former TBVC states, where those offences were based on race or were offences which would not have been considered to be offences in an open and democratic society, based on human dignity, equality and freedom, under the current constitutional dispensation. If the Director-General is satisfied that the applicant complies with these specific requirements, he or she must issue a certificate of expungement which must be submitted to the head of the Criminal Record Centre of the South African Police Service. This certificate of expungement serves as authority for the record centre to expunge the record in question. If there is any doubt whether the offence is an “apartheid” offence or not, the matter must be submitted to the minister for a decision.

The Amendment Act sets out the procedure to be followed when applying for the expungement of a criminal record.

Application forms for purposes of applying for the expungement of criminal records will be available at the National and Regional Offices of the Department of Justice and Constitutional Development, all Magistrate’s Offices and Police Stations with effect from 8 May 2009. Application forms will also be available on the Website of the Department of Justice and Constitutional Development at the following Web address: www.doj.gov.za.

Applicants are urged to complete applications in full and to adhere to the instructions set out in the application forms in order to ensure that applications are processed quickly.

For further information please contact:
Zolile Nqayi
Tel: 021 467 1714
Cell: 082 898 6483
Fax: 021 467 1732
E-mail: znqayi@justice.gov.za

Issued by: Department of Justice and Constitutional Development
5 May 2009
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za/)