We received the following enquiry on our info email on 13th of September 2024, and we thought the response to this question will be informative and relieving to concerned parties.
HI FM, my name is Siphokhazi from Lenasia, I’ve been unemployed for about 2 years now, and after attending a series of interviews in this month of September I might have landed what I would term as “my dream job “ . I had made it out of the second and third round of interviews and I was subsequently called up for the final stage. I went for the finger print and record checking screening and I’ve just been informed that there is a criminal record on my profile. I have only had issues with the law one time in my whole existence and that was during the covid lock down. I am afraid that this will further my unemployment streak. Is there anyway I can be assisted. Your prompt response will be appreciated.
Response: Let us delve into the legislation that would have put our correspondent in this dire situation. After clarifying that we will further look into legal reliefs that are readily available and applicable to the matter at hand.
The Disaster Management Act 57 of 2002 was enacted with the aim of managing the severity of disasters, amongst other things. It was under this legislation that the country could be placed under lock-down during the Covid 19 pandemic. Under the same law, lock-down regulations were created with regards to the conduct of all persons in South Africa during that period. Failure to adhere to the regulations had dire consequences, including criminal prosecution and possibly a criminal record. The pandemic has eased, the regulations are no longer enforced and a way out for those who already acquired a criminal record under the lock-down regulations has come.
The lockdown regulations required compliance with various disease management measures, such as curfews, mask-wearing, limits on gatherings, and the closure of certain entertainment venues. Non-compliance was considered an offense under the Criminal Procedure Act, (Act 51 of 1977, Criminal Procedure Act”). which could result in fines or imprisonment, along with acquiring a criminal record.
Having a criminal record can have various implications on a person’s life. One of the severe implications is the possible limitation on the ability to earn a living. Companies often conduct a thorough assessment of potential candidates for vacancies, including an investigation into their criminal history. In an economy where the unemployment rate is already high, the last thing one needs is a criminal record to further limit employment prospects. Unfortunately, those who were convicted for contravening the lock-down regulations may have found themselves in this predicament.
Apart from employment seekers, there are various groups of individuals who might find themselves experiencing rejection and denials as a result of lockdown violations. This can include ; foreign individuals applying for permits and visas, postgrad qualification applicants, loan and finance applicants etc.
On 3 April 2024, the Judicial Matters Amendment Act 15 of 2023 was passed and section 57D has been added to the Criminal Procedure Act with the heading “Convictions and sentences in respect of admission of guilt fines relating to offences in terms of regulations made in terms of section 27(2) of Disaster Management Act, 2002”.
This amendment provides that the criminal record of a person who paid an admission of guilt fine or appeared in court and was sentenced for an offence under the lock-down regulations is expunged. The expungement is automatic and there is no application required. However, should a person discover that their criminal record for contravening lock-down regulations is still active:
- S/he may apply to the Director General: Justice and Constitutional Development for the criminal record to be expunged.
- The Director General must issue a certificate of expungement directing that the conviction and sentence be expunged if s/he is satisfied that the relevant requirements were met.
- The applicant must then submit the certificate to the head of the Criminal Record Centre (“CRC”) of the South African Police Services for the criminal record to be expunged.
- The applicant is entitled to make a written request for the head of the CRC to provide confirmation that the criminal record has been expunged.
The application for expungement is to be submitted with the assistance of the SAPS in order to ensure that the prescribed manner for expungement is followed.
Expungement (clearing) of these records will undoubtedly bring much desired relief to those who were convicted for certain offences under the lock-down regulations. Those who were convicted of a lock-down related offences where an admission of guilt fine was payable should ideally obtain a clearance certificate to establish whether the criminal record has been removed or not and follow the steps to have it expunged if it has not yet been attended to.
FM attorneys prides itself in being on standby to assist individuals, groups and institutions who might require our services in this respect.
Until our next article , stay safe and remain law abiding.
Leave a Reply