The procedure for having a Criminal record expunged

The procedure for applying for an expungement of a criminal record is set out in section 271D of the Criminal Procedure Act and the regulations thereto.28 Excluding apartheid era offences, the first step in the application for expungement is to obtain a ‘clearance certificate’ showing that a period of ten years has lapsed after the conviction(s) and sentencing.

The clearance certificate can be applied for at a police station29 and a fee of R160.00 is payable upon application for a clearance certificate. Applications in respect of section 271B must use Form A. Applications in respect of section 271C (2)(a) (offences based on race) must use Form B.

Applications in respect of section 271C(2)(a) (offences listed under apartheid era laws) must use Form C. Form C applies to those instances where the records should have been automatically expunged, but this did not happen. In respect of racebased offences and specific apartheid era law, there is no need to submit the SAPS certificate of clearance. The full applications must be submitted to the Director General: Justice and Constitutional Development who, if the applicant meets the criteria for expungement, issue a certificate of expungement; Form D in the Regulations.

The certificate of expungement must then be submitted by the Director General: Justice and Constitutional Development to the head of the Criminal Records Centre of SAPS. Upon the receipt of the certificate of expungement, the Head of the Criminal Records Centre of SAPS (or such delegated official) must expunge the record as indicated. The Head of the Criminal Records Centre of SAPS will, however, not automatically inform the applicant of the expungement and will only do so upon the written request of the applicant.

In the event that there is a dispute or uncertainty whether an offence meets the requirements in section 271C(1) or section 271C(2), the matter must be referred to the Minister of Justice and Constitutional Development. If the Minister decides that it does meet the requirements in section 271C(1) or section 271C(2), the Minister may issue a certificate of expungement (Form E). It should be noted that in respect of applications made under section 271B(1), there is no dispute resolution mechanism.

The process of having a criminal record expunged is not an easy one and may be confusing and intimidating to the lay person. At minimum the applicant has to interact with three entities: the police upon application for a clearance certificate; the Department of Justice and Constitutional Development, and the SAPS Criminal Record Centre (on two occasions).

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