Thursday, August 6, 2015

Expunging Criminal Records for Minor Offences

Many of our wildest moments can be attributed to the recklessness of youth. When a mistake ends in a criminal record however, it can impact every area of your life for the rest of your life!
 
A criminal record often means that the punishment for the crime lasts far longer than a court of law intended. This is particularly severe in the case of minor offences where a person is limited in terms of international travel, immigration or employment.
 
TPN statistics show that a high number of job applicants who have been criminally vetted have had some kind of brush with the law. In a recent case, an employer unknowingly employed a convicted murderer in a position that involved visiting people’s homes! Of course not all cases are quite that severe, but the fact remains: what are you doing to protect your brand? Many of our rental agents are entrusted with cash in the form of rent or deposits, as employers what steps have we taken to verify against previous convictions for theft?
 
Schools and Pre-Schools take note!
 
It is a legal obligation that anyone working with children has to be criminally checked and checked against the sexual offence register.

Warning! Admission of guilt fine for petty crimes leads to a criminal conviction. 


Thousands of people have criminal records as a result of having paid admission of guilt fines for petty crimes. Recently in the Western Cape, a Magistrate criticised police for fast-tracking cases and securing a release by not explaining to detainees that an admission of guilt fine would result in a criminal record. These criminal records often go unnoticed until the person applies for a job, a travel visa or finance. More often than not, detainees are under the impression that an admission of guilt fine was paid as bail.
 
The same Magistrate referred a judgment to the Western Cape High Court for review recommending that the arrest for possession of dagga of 19 year old, Dane Houtzamer be set aside. Dane’s father was told by Police that he needed to pay R200 to get his son released. In August 2014, his father brought the issue before the Wynberg Magistrate’s Court bringing to the court’s attention the fact that the consequences of paying the R200 - a criminal record - had not been explained by the police. The High Court Judge ruled that Houtzamer’s conviction be expunged from the criminal record book and that the R200 be refunded. He also suggested that a possible alternative in administering admission of guilt fines would be to stipulate that a fine could not be paid until a period of time had lapsed.
 
Further examples of petty crimes where an accused can pay an admission of guilt fine and so secure their release are: common assault; drunk driving; possession of a small quantity of drugs and shoplifting.
 

Categories of Criminal Records which can be expunged


A criminal record can be expunged or erased from the National Criminal Register. The categories under which a criminal record can be expunged are:
 
1. Minor Offences - this is only applicable where:
  • The offence is categorised as minor by the type of sentence the court imposed.
  • The date of the conviction was 10 years ago;
  • There has not been another conviction for which they were sentenced to imprisonment without the option of a fine.
This does not apply to convictions of sexual offences against children where an offender’s name has been included in the National Register for Sex Offenders or the National Child Protection Register. If the victim was mentally disabled, it disqualifies a person from having their criminal record expunged.
 
2. Apartheid Offences -
 
A person who was convicted of an offence under ‘Apartheid’ legislation can apply for their criminal record to be expunged if this was not done automatically by the head of the Criminal Record Centre.
 
3. Race Related Offences - this is applicable where:
  • The offence was based on race.
  • The offence would not be regarded as an offence in an open and democratic society based on human dignity, equality and freedom under a democratic constitution.
4. Juvenile Offences -
 
Where a child was convicted of an offence listed in Section 87 of The Child Justice Act as either Schedule 1 or Schedule 2, the criminal record of that child must be expunged after 5 years in the case of Schedule 1 offences, or after 10 years in the case of Schedule 2 offences. This does not apply if the child has been convicted of a similar or more serious offence during the time period.
 
Child Sex Legalised
 
In 2013 the Constitutional Court declared 2 sections of the Criminal Law Amendment Act invalid. This means that, now:
  • Children between 12 and 16 are not held criminally liable for engaging in consensual sexual acts with each other.
  • Presiding officers are given the discretion to decide in individual cases whether the particulars of children should be included in the National Register for Sex Offenders.
  • Children who were convicted for having engaged in consensual sexual acts can now be removed from the National Register for Sex Offenders.

How to Apply for Expungement of a Criminal Record


An application for the expungement of a criminal record must be made to the Director-General of the Department of Justice and Constitutional Development. This is done by submitting an application form under one of the applicable categories.
If the applicant complies with the necessary requirements, the Director-General will issue a certificate of expungement which is submitted to the Criminal Record Centre. The certificate serves as authority for the centre to erase the criminal record. 
 

Conclusion - TPN Verified Employment Database



Naturally it is vitally important for employers to have access to all current and relevant information available on a potential employee, criminal checks included. TPN is able to assist with criminal checks on prospective employees as a starting point.

TPN has further developed a centralised database called StaffSure which consists of verified employment data collected directly from our members.

Added to a criminal check, a TPN StaffSure enquiry provides detailed verified employment history including:
  • previous positions held;
  • periods of employment;
  • reasons for termination; and
  • HR contact details for reference purposes.

TPN combines our verified employment database (Staffsure) with TransUnion, Experian and the Companies and Intellectual Property Commission, as well as checking all qualifications - TPN Staffsure is able to provide a truly comprehensive report on prospective employees. This allows employers to clearly distinguish between applicants who could become a liability to their organisation and those who deserve a second chance!

1 comment:

  1. Hi, If a landlord or agent has allowed a tenant to move in knowing they have a criminal record, or if the tenant embarks in criminal activity whilst leasing from the landlord or agent and they are aware of this, does the landlord or agent have any implications held against them?

    ReplyDelete