JOHANNESBURG - In a move likely to benefit thousands of South Africans, criminal records – including some of those obtained during the Covid-19 pandemic – will be expunged, according to Deputy Justice Minister John Jeffery.
Jeffery told Sunday Independent that a review of the regulations in the Judicial Matters Bill had been on the cards long before lockdown, with the intention to wipe the slate clean for people with records for certain categories of admission of guilt offences.
The deputy minister said many people had paid admission of guilt fines as an “easy solution”, without knowing that this would leave them with criminal records. The government was now looking at removing the criminal records of those who found themselves in this situation. “We have identified for a while that in terms of the Criminal Procedure Act, there is a problem with admission of guilt fines resulting in people having criminal records,” Jeffery said.
More than 150 000 people have criminal records over Covid-19 regulation breaches alone – though this figure, according to the deputy minister, could be higher.
“There will be retroactive effect on past and future admissions of guilt for Covid-19 fines,” he said. “This is not about stopping prosecutions. This may be debatable but if you have a lockdown, it needs to be enforced, and one way in which this is done is by creating crimes.
“A crime during the hard lockdown may differ from area to area but the law applies to everybody. Therefore, just because you live in a leafy suburb and there is nobody on the streets, it does not give you the right to walk your dogs, when everybody else is confined to a lockdown.
“The issue is simply around the criminal records for admission of guilt fines,” he said. He said amendments to the Criminal Procedure Act would ensure that the minister is able to revisit the categories of crimes for admission of guilt so that people don’t get criminal records. The proposed changes on expungements would be put through the Cabinet process for lawmakers to consider admission of guilt fines so that the penalties are not as harsh, especially for young people.
“It’s a twofold thing, looking to the future and going back as well.
“We have been planning for some time on the amendment of the Criminal Procedure Act to ensure that certain categories of admission of guilt won’t end up in a criminal record for individuals,” he said. But Jeffery said this wouldn’t be a blanket ruling as some of the country’s
environmental laws, for example, make provision for fines for an admission of guilt offence but expungement would not be allowed – to ensure companies do not repeatedly break the law thinking that they would get away with a fine.
Asked whether logistically, the proposed expungement process would end up being a bureaucratic nightmare, Jeffery said: “Well, we’ll have to avoid that.
“There is an attempt to digitise the expungement process to make it a lot easier than the current process.
“But it’s obviously of concern as well, and we’ll have to address it to ensure that it can be easily done.”
Jeffery said South Africa subscribed to the current push by human rights groups on the African continent to decriminalise petty crimes to ensure that people were not bogged down as a result of a conviction for minor offences.
“While our approach is specific to South Africa, the issues being addressed in Africa are similar: we also want to ensure petty offences are decriminalised so people, particularly young people, don’t end up with criminal records that would penalise them, which means they won’t get jobs, etc,” he said.
In this regard, therefore, Jeffery said moves were currently under way to amend regulations to expunge the criminal records of South Africans; for example, a large number of people have criminal records for drinking in public.
Currently, one has to apply to the president for a pardon for expungement of crimes.
A large number of citizens had also paid admission of guilt fines during Covid-19.
“We will have to ensure that applications for expungement are not bogged down and will be looking at systems or a more practical and quicker turnaround,” he said.
He said once the paperwork had been finalised, Minister of Justice Ronald Lamola would announce details of categories for expungement.
However, there were categories of offenders who would not qualify, for example, child sex offenders.
Legal counsellor at the Helen Suzman Foundation Anton van Dalsen said it made no sense for admission of guilt fines in respect of minor transgressions to lead to criminal records.
He said the foundation’s approach would be to suggest that something similar to Section 341 of the Criminal Procedure Act was applied to minor transgressions of the regulations issued in terms of the Disaster Management Act.
At a meeting of the Justice and Correctional Services Committee in Parliament on May 18, he said, Jeffery noted that the matter of admissions of guilt attracting criminal records was something the deputy minister had been wanting to address for a while.
“He stated his intention for most admissions of guilt not to produce a criminal record,” said Van Dalsen.
“However, we are unaware of any action being taken on this so far,” said Van Dalsen.
* Edwin Naidu is a journalist at the Wits Justice Project (WJP). Based in the journalism department of the University of the Witwatersrand, the WJP investigates human rights abuses and miscarriages of justice related to SA’s criminal justice system.
Sunday Independent