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EXPUNGEMENT BASICS

Expungement (also called "expunction") is a court-ordered process in which the legal record of an arrest or a criminal conviction is "sealed," or erased in the eyes of the law. When a conviction is expunged, the process may also be referred to as "setting aside a criminal conviction." The availability of expungement, and the procedure for getting an arrest or conviction expunged, will vary according to the state or county in which the arrest or conviction occurred

LEGAL EFFECTS OF EXPUNGEMENT

An expungement ordinarily means that an arrest or conviction is "sealed," or erased from a person's criminal record for most purposes. After the expungement process is complete, an arrest or a criminal conviction ordinarily does not need to be disclosed by the person who was arrested or convicted. For example, when filling out an application for a job or apartment, an applicant whose arrest or conviction has been expunged does not need to disclose that arrest or conviction.

In most cases, no record of an expunged arrest or conviction will appear if a potential employer, educational institution, or other company conducts a public records inspection or background search of an individual's criminal record.

An expunged arrest or conviction is not necessarily completely erased, in the literal sense of the word. An expungement will ordinarily be an accessible part of a person's criminal record, viewable by certain government agencies, including law enforcement and the criminal courts. This limited accessibility is sometimes referred to as a criminal record being "under seal." In some legal proceedings, such as during sentencing for any crimes committed after an expungement, or in immigration / deportation proceedings, an expunged conviction that is "under seal" may still be considered as proof of a prior conviction.


THE APPLICATION SHOULD SUCCEED IF f:

1.    Ten years have lapsed after the date of the conviction of your offence.

2.    A direct prison sentence was not recieved on conviction.

3.    There have been no subsequent convictions and imprisonment for any other offence during those 10 years,        without the option of a fine.

4.    You were sentenced to the following sentences:

4.1. Conviction of lesser serious crimes (for example minor charges of theft, assault, fraud etc.)

4.2. Politically motivated crimes. For most crimes where a direct sentence was not laid upon except         politically motivated crimes and crimes in respect of which the punishment is now unconstitutional         under our new legislation.

5.    Convictions of an offence based on race.

6.    You were convicted of an offence which would not be regarded as an offence in an open and democratic         society based on human dignity, equality and freedom under the democratic constitutional dispensation.

YOUR APPLICATION WILL NOT SUCCEED IF:

1.   If a period of 10 years has not lapsed since the conviction of the crime, EXCEPT for crimes that were        based on race and/or politically motivated,  of which punishment is now unconstitutional.

2.   If you were convicted of a sexual offence against a child or a mentally disabled person.

3.   If your name is included in the National Register for sex offenders or the Notional Child Protection       Register. You may however qualify if your name has been removed from the National Register.

4.   If you were imprisoned for an offence, which was not a political offence and or based on race.

5.   Serious cases where the sentence is one of imprisonment without the option of a fine for example       robbery, rape, murder and assault with the intention to do grievous bodily harm.

THE PROCESS

1.  Before submitting the application for expungement of a conviction, a clearance certificate reflecting the      offence (and confirmation that the offence in question was not automatically expunged by the Criminal      Record Centre) must be obtained from the Criminal Record Centre of the South African Police Service.

2.  The completed application form (Part II and Part III), together with the attachments must be posted or      delivered by hand to the Director-General: Justice and Constitutional Development:

3.  If the Director-General is satisfied that a person meets the requirements set out in section 271C(1) of the      Act, he or she will issue a certificate of expungement directing that the conviction(s) and sentence(s) of the      person be expunged.

4.  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.

I5.  If the application for expungement is refused, a person will be informed by post of this decision and       reasons for the decision.

6.  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 the conviction(s) and sentence(s) in question has/have been       expunged.

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