Category Archive: Criminal law

Criminal record? Wipe it clean

Make a fresh start

Expungement of criminal record

If you have a criminal record, no matter how minor the offence, your chances of getting a job are slim. But there is good news. If it’s been 10 years or more since the conviction, you can apply to have your criminal record wiped clean. This is known as “expungement”.

What is expungement of a criminal record?

Expungement of a criminal record is a legal process through which you can apply to the Department of Justice to remove any record of previous minor criminal offences from the criminal record database of the South African Police Service (SAPS).

This process came into effect in 2009 as a result of changes to the Criminal Procedure Act, 1977 (Act 51 of 1997) which made it easier for people to clear their name of a minor offence so that the past was no longer an obstacle to future employment opportunities. The Act was also designed to assist anyone convicted of apartheid era crimes.

Note that expungement of criminal records differs from restorative justice.

Are you eligible to have your criminal record wiped clean?

According to Section 217B(1) of the Criminal Procedure Act, you can apply to have your criminal record expunged if:

  • It has been 10 years since the date of your conviction (if you were 18 or younger when you were convicted you can apply after five years).
  • It was a minor offence, such as petty theft or shoplifting.
  • You were not convicted of any other offence and were given the option of a fine rather than imprisonment.
  • You were told that by paying a fine you would not receive a criminal record and you’ve subsequently discovered that you indeed have a record.
  • You were fined less than R20 000.
  • You received a suspended sentence.
  • Your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

You do not qualify for expungement if:

  • It has not been 10 years since the conviction.
  • Your name is either listed in or has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
  • You were sentenced to prison without the option of a fine.
  • You received a fine of more than R20 000.
  • You were convicted of a serious crime such as murder, rape other sexual offences, or violent crimes.

Getting the ball rolling – steps in the expungement process

  1. First obtain a clearance certificate from the Criminal Record Centre of the SAPS proving that 10 years has elapsed since your conviction. This certificate must be attached to your application.
  2. Complete the expungement application forms (Part II and Part III) and, together with the clearance certificate, post or hand deliver them to the Department of Justice and Constitutional Development in Pretoria.
  3. If you meet the requirements set out in section 271B(1) of the Act, you will be notified in writing that your application was successful and that your crime has been expunged. You will likewise receive written notification if your application is denied together with the reasons for this decision. The process usually takes about three months.

The employment landscape

One of the biggest challenges facing South Africa is high unemployment, coupled with widespread poverty, high inequality and poor economic growth. The country’s official unemployment rate for job-seekers is 27.2% (Stats SA), but if we accept the broad definition, which includes those who have given up trying to find a job, the true level of unemployment is probably closer to 50%.

Finding a job is hard enough without the added barrier of a criminal record. Since more and more employers are running background checks on potential employees and are entitled to refuse or terminate employment because of a previous crime, even a minor one, it makes sense to apply for expungement. Any future background checks will not reflect prior convictions.

Given the gloomy landscape, job seekers must be able to “put their best foot forward”. Don’t let a past mistake determine your future.

Let our law firm help you

Cape Town Attorneys, SD Law & Associates Inc. are criminal attorneys and bail lawyers. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

 

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Restorative justice – the arguments

Reconciliation vs. retribution

Globally, conventional criminal justice systems, based on punishing people for their crimes through incarceration and instilling fear of imprisonment as a deterrent, seem to have limited success. Prisons are overcrowded and rehabilitation is largely failing. Instead, restorative justice methodology, with its focus on resolving crimes by holding offenders accountable for their actions, is gaining ground.

Restorative justice supporters claim that the promotion of healing, restitution and rehabilitation of offenders will prevent future offences. This is because revenge does not help victims make sense of or restore their losses. It doesn’t answer questions or provide closure. Restorative justice falls within the ambit of alternative dispute resolution (ADR) and is a process of mediated dialogues. The term was first coined by Albert Eglash, a psychologist working with prisoners in the 1960s.

Alternative Dispute Resolution is rooted in South African customary law

Restorative justice and ADR have always been an integral part of customary law in South Africa. The Truth and Reconciliation Commission (TRC) is a good example of restorative justice. The TRC was established to deal with apartheid crimes in a participative and reconciliatory manner to promote healing of families, communities and the country. The Commission for Conciliation, Mediation and Arbitration (CCMA), which tackles labour disputes, is another example.

ADR and restorative justice – is there a difference?

Although negotiation, mediation and arbitration are components of both ADR and restorative justice, there is an important distinction. ADR involves conflict resolution and compromise assessment with the help of an impartial mediator. In ADR the parties agree on the terms of the settlement themselves. By contrast, restorative justice sets out to address the harm done once an offender has admitted to a crime and is willing to take responsibility for it. It does not aim to resolve a dispute.

In each case both parties are directly involved and are engaged in decision making, compared with conventional criminal processes, which regard the victim and offender as passive opponents, with key decisions taken by judges and lawyers.

Young offenders (under 18) may be offered diversion rather than restorative justice.

Advantages and application of restorative justice

Restorative justice functions within the framework of the criminal justice system. It is often seen as a way to deal with petty or moderate crimes, but can be used in criminal cases, taking into account the severity of the offence.

ADR mechanisms have become increasingly popular in South Africa: ADR is cheaper, quicker, more efficient and less stressful than going to court. It is informal and voluntary and can happen at any stage before or during civil proceedings as long as judgement has not yet been passed. The process also gives victims and communities a voice and can therefore be a more empowering experience.

Let the punishment fit the crime

The State vs Shilubane, 2005 was a significant victory for the principles of restorative justice. The accused, a 35-year-old first-time offender, stole and cooked seven fowls worth R216.16. He pleaded guilty and despite showing “genuine remorse” was sentenced to nine months in prison. On review, the sentence was deemed “disturbingly inappropriate”with Judge Bosielo stating that the “punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy.”

Although it requires a significant mind shift on the part of the legal fraternity, victims and offenders, the positive outcomes of restorative justice are heartening, and the process has done much to build relationships in South Africa.

A key argument in favour of restorative justice is that participating offenders are less likely to commit further offences, compared with those who are subject to conventional justice interventions (see “Restorative Justice: The Evidence”, by Lawrence Sherman and Heather Strang).

The solution to prison overcrowding?

Retributive justice and harsh sentences are failing to stem the ever-growing crime rate in South Africa. Restorative justice, with its emphasis on reconciliation over retribution, has much to recommend it, beyond reducing the seemingly insurmountable backlog in the South African courts. This is not to suggest that serious crimes should go unpunished or untried. Clearly, the merits of ADR/restorative justice must be carefully considered on a case‑by‑case basis, but it may be a viable alternative to a custodial sentence for less serious crimes or where the offender does not pose a danger to society.

The punishment should still fit the crime.

We can help

Cape Town Bail Attorneys, SD Law & Associates Inc. is a Cape Town law firm of Cape Town Bail Attorneys. We’ll fight for you and protect your rights. If you need advice on alternative dispute resolution or independent mediation services or help with any aspect of criminal law or bail, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

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