Certain categories of offenders who have criminal records may apply to have those records expunged or erased.
Criteria for Eligibility
A person who was convicted for an offence 10 years ago and:
- Was not sentenced to a period of direct imprisonment of any length. (This does not refer to imprisonment where there was an option to pay of fine of less than R20 000 and the person went to prison because of an inability to pay the fine).
- The sentence was one of the following:
- Wholly suspended
- A caution
- A discharge
- Fined and the fine did not exceed R20 000
- Correctional supervision
- Periodic imprisonment
- Has not been convicted of another offence since.
Each application is judged on its individual merits. The above criteria must be read in conjunction with the application legislation.
The application forms are available in PDF from the Department of Justice and Constitutional Development’s website: Application Form
Failure of Application
Section 271B of the Criminal Procedure Act does not provide for a review/appeal remedy when the Director-General has refused to issue a certificate of Expungement. However, if a person is dissatisfied with the Director-General’s decision not to issue a certificate of Expungement, such a person may make use of judicial review of the matter by the High Court. Nothing prevents an aggrieved applicant to request the Director-General to reconsider his/her matter and the applicant’s reasons why an application should be granted, will be beneficial.
No specific form or procedure is prescribed for an application for pardon in terms of section 84(2)(j) of the Constitution. Experience has however taught that certain information is necessary in the preparation and processing of applications for pardon. The Directorate: Legal Process, which is responsible for the processing of pardon applications in the Department, prepared a template of required information to assist applicants in providing all relevant information which is necessary for the processing of these applications.
An applicant is free to submit any information in addition to what is required in the template, and in any format he or she chooses. In other words the template is not prescriptive, but as stated above it does assist the DOJ and prevents delays in so far as requests for further information from the Department is concerned.
- The President grants pardon. This power of the President is only exercised in highly exceptional cases.
- To pardon a person is to forgive a person for his/her wrongful deeds. The pardon process is therefore not available to persons who maintain their innocence and is not a “super” appeal procedure.
- Section 271B of the Criminal Procedure Act, 1977 (Act 51 of 1977) provides for certain minor convictions to be expunged after the expiration of 10 years. In the light thereof, pardon is only granted after the expiration of 10 years for other and more serious convictions which do not qualify in terms of section 271B.
- Before submitting the application for pardon, a clearance certificate must be obtained from the Criminal Record Centre of the South African Police Service. The clearance certificate must be attached to the application.
Diversion is intended to steer lower risk offenders away from the criminal justice while still holding them accountable for their actions. If offenders receive a diversion, they must still perform some sanction such as attending a behaviour change programme or counselling, pay a fine or perform unpaid community service.
A person who is diverted does not have a criminal record.
However, it has come to NICRO’s attention that despite being diverted, a number of people report the fact that a criminal conviction has been recorded against their name. This is typically found out when a person applies for a job or a visa for travel.