A common and dangerous misconception in South Africa is that a criminal record simply "expires" or vanishes on its own after ten years. Many individuals believe that because they have stayed out of trouble for a decade, their record is automatically clean. While there is a legal concept known as "falling away," it is vastly different from a formal expungement.If you are waiting for your record to disappear naturally, you may be in for a rude awakening during your next job interview or visa application. Here is the definitive guide to understanding the difference between these two legal concepts.
1. Section 271A: What "Falling Away" Actually Means
Under Section 271A of the Criminal Procedure Act (CPA), certain minor convictions "fall away" after a period of ten years. However, this does not mean the record is removed from the government's database.The term "falling away" refers strictly to sentencing purposes. In the South African legal system, if you are convicted of a new crime, the court looks at your past record to decide on a sentence. If your old conviction has "fallen away," the court must treat you as a first-time offender rather than a repeat offender, often resulting in a more lenient sentence.
The Key takeaway:
"Falling away" protects you in a courtroom, but it does not protect you in the boardroom or at the border.
2. The Danger of the "Invisible" Record
Even if a conviction has legally "fallen away" for a magistrate or judge, it remains fully visible on the South African Police Service (SAPS) National Criminal Record database. This leads to the following real-world consequences:
• Employment Background Checks: When a prospective employer runs a criminal record check, the conviction will still appear, regardless of how much time has passed.
• Travel and Visas: Foreign embassies and border authorities will still see the record, which can lead to immediate visa denials.
• Professional Stigma: As seen in the case of S v Mutobvu, individuals are often shocked to find they are ineligible for jobs because they were unaware that an old "admission of guilt" fine created a permanent record that never expired.
3. Section 271B: The Power of Formal Expungement
If you want your record to be permanently deleted, you must undergo a formal expungement process under Section 271B of the CPA. Expungement is an administrative legal procedure that directs the Head of the Criminal Record Centre to physically remove the conviction from the database.Once a record is formally expunged:
• It is as if the offence never happened: For all practical purposes, the conviction is erased.
• Disclosure is no longer required: In most cases, you are legally entitled to state that you do not have a criminal record.
• Background checks return "Clear": Employers and agencies will no longer see the conviction because it has been purged from the system.
4. Why You Need Professional Assistance
While the law allows you to apply for expungement yourself, the process is notoriously complex, administrative, and prone to delays. It involves obtaining a Police Clearance Certificate (PCC), submitting detailed applications to the Director-General of Justice, and following up in person to ensure the SAPS database has been updated.
At Criminal Record Expungement Services (Pty) Ltd (CRES), we manage the entire process for you for an all-inclusive fee of R2500. Owned and managed by a practising attorney with over 25 years of experience, we ensure your application is handled correctly the first time, preventing the months of frustration and potential rejections that often occur with DIY applications.
