Expungement is the process by which criminal records are removed or erased from an individual’s criminal record. This process is important because having a criminal record can have serious implications for one’s future prospects, including employment and travel. In South Africa, the Criminal Procedure Act (CPA) provides for the expungement of criminal records under certain circumstances. The law was amended in 2018 to allow for the expungement of certain offences that were previously not eligible for expungement.

However, the COVID-19 pandemic has brought about a new set of circumstances that has led to further changes in the expungement law. During the pandemic, individuals who were found to be in breach of COVID-19 regulations, such as not wearing a mask or not adhering to social distancing rules, were charged with offences such as “Failure to Comply with Directions of a Law Enforcement Officer” or “Failure to Wear a Face Mask.” These offences, which were not considered to be serious offences before the pandemic, have now become part of an individual’s criminal record.

In response to this, the South African government passed the Criminal Procedure Amendment Act, which came into effect on 28 February 2021. The new law allows for the expungement of certain offences related to COVID-19 regulations that were committed during the lockdown period. This means that individuals who were charged with these offences can now apply to have their criminal records expunged.

The offences that are eligible for expungement include Failure to Comply with Directions of a Law Enforcement Officer, Failure to Wear a Face Mask, and Violation of the Disaster Management Act. However, there are certain criteria that must be met in order for an individual to be eligible for expungement. These include:

• The offence must have been committed during the lockdown period, which began on 26 March 2020 and ended on 31 December 2020.
• The offence must have been a first-time offence, and the individual must not have been previously convicted of a criminal offence.
• The offence must not have resulted in serious harm or damage to property.

Individuals who meet these criteria can apply to have their criminal records expunged by submitting an application to the Director-General of the Department of Justice and Constitutional Development. The application must include a copy of the individual’s criminal record, a statement explaining why the expungement is necessary, and any other relevant documents or evidence. Brits Law can assist in drafting the required application for you and submit the same to the Director-General on your behalf.

It is important to note that the expungement process is not automatic, and the Director-General has the discretion to approve or deny an application based on the circumstances of the case. However, the new law provides an opportunity for individuals who were charged with minor COVID-19 offences to have a second chance and move on with their lives without the stigma of a criminal record.