The Disaster Management Act 57 of 2002 was enacted with the object 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 lock-down regulations required people to adhere to certain disease management controls, such as curfews, wearing of masks, limiting the numbers of persons that may be gathered in a place (including workplaces) and closing of certain types of entertainment businesses. Failure to adhere to the regulations was an offence punishable in terms of the Criminal Procedure Act 51 of 1977 (“Criminal Procedure Act”). On conviction, a person could be liable to pay a fine and/or be sentenced to imprisonment. The consequence of a conviction under the Criminal Procedure Act also means that the person ends up with 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. 

 

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.  

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