How Long Does a Criminal Record Last?

Being convicted of a crime can be a traumatic experience that puts a person’s life on hold. Most of us though, imagine that when your time has been served you can rejoin society and continue your life as before. This, however, is not always the case. Oftentimes a criminal record may follow a person and seriously undermine any attempts to get a job and live a normal life. How long does a criminal record last? Is there any cure for this? How long will this record last and can it ever be removed?

If no action is taken by the individual, a criminal record may last forever. In certain circumstances, a criminal record can be legally removed from the records. Unfortunately, this doesn’t apply to all cases and only some individuals may apply to have their records cleared.

This process can be attempted 10 years after the sentencing occurred, if successful, the individual’s record will be expunged and they will be free to fully re-enter society. If the individual is not eligible for this clearance process, their criminal record will follow them for the rest of their lives.

This begs the question then, which types of criminal records can be cleared?

What Crimes can be Cleared?

The requirements for a crime that can be cleared are as follows  –

• Minor crimes – If you are convicted of ‘minor’ or ‘lesser’ crimes, you may be able to wipe away your record. These charges normally include but are not limited to, things like minor assaults, shoplifting, fraud, etc.
• Ten-year period – A ten-year period must pass from the conviction date before you are eligible for the process.
• No other convictions – You will need to ensure that no other crimes have been committed in the ten-year period.
• No direct prison time served – If your sentence only involved community service, supervision, or some other punishment that did not result in actual imprisonment you will normally be accepted for record clearance. Sometimes (if the judge is in a good mood), punishments of this nature can even be done as a substitute for an actual sentence and the person may forego the criminal record entirely.
• Minor fine – You can also apply if your conviction only involved a fine of less than R20 000.

What Crimes Cannot Be Cleared?

Not all crimes are able to be expunged, you may not have your record cleared if you fall into the following categories –

• Certain sexual offences – If you are found guilty of a sexual offence against a minor or a disabled individual you will not be eligible for the process.
• Registry Listing – If your name appears on the National Register for Sex Offenders or the National Child Protection Register your record cannot be cleared. However, if you manage to remove your name from these lists you may be able to wipe away your record.
• Serious convictions and sentences – People found guilty of more serious crimes will not be able to get rid of their criminal records. If, for example, you have been found guilty of rape, murder, etc. Your record will remain as is.

As you can see, less severe crimes are usually able to be expunged. If you believe that you qualify to have your record removed, there is a simple procedure to follow in order to do so.

How do I get my Criminal Record Removed?

There are many lawyers and firms that specialize in helping people clear their criminal records. Sadly, this can be quite costly. If you don’t wish to spend the extra money on an attorney you can get things done by yourself.

The procedure when clearing a criminal record is as follows –

• As mentioned, if you are on certain sexual misconduct registers you will first need to apply to the relevant authorities to be removed from these lists. Proof that you have been removed from these registers must then be included in future expungement applications.
• Next, you will need to apply for a Police Clearance Certificate(PCC), this can be done at your local police station and must include all relevant identification.
• Once these certificates have been obtained, they must be submitted, along with a formal application for expungement to the Director-General: Justice and Constitutional Development. If the Director-General approves your application you will receive confirmation and your criminal record will have been officially cleared.

How much does it Cost to Remove your Criminal Record?

As mentioned, many people hire lawyers to do most of the work when getting their records cleared. The cost of the process then will depend on the lawyer you hire. The procedure itself, however, is free, so if you’re strapped for cash it’s still possible to remove your record.

Can I get a Job with a Criminal Record?

Yes, you can still get a job with a criminal record. While there is a prevalent idea in many parts of the world that a criminal record makes future employment essentially impossible, this is not actually the case.

While it’s true that some career paths may be more inaccessible than others (people on sexual misconduct registers will have a hard time getting a teaching job in a school), there are studies to suggest that criminal records in general are not the deal breakers that many think they are.

A Sterling Talent Solutions Report in 2017 pointed out that while 93% of employers conduct research into a potential employee’s history, more than 80% of HR professionals do not believe that criminal records are a particularly damaging influence and do not negatively impact the evaluation process.

Do I have to Tell my Employer about my Criminal Record?

Many people with criminal records believe that if their bosses get wind of their history, they will no longer employ them. While this may very well be true, it is still in your best interest to let your boss know about your criminal history.

While the Employment Equity Act of 1998 protects an employee from many forms of outright discrimination, you may still find it hard to get the job when they hear about your past. That said, lying about your criminal history is definitely a fireable offence, and it is likely that your employer will check. It’s always advisable to be open and clear about your history when applying for a job and to never lie on your CV.

Changes in Legislation

Many South Africans have expressed anger over the current system of criminal prosecution. They argue that incurring a 10-year criminal record for minor offenses is an extreme punishment. With this in mind, some new legislation is currently being considered which may rethink the way such infringements are punished. If successfully passed, the new laws could turn certain minor criminal acts into simple fines that do not carry along the penalty of a criminal record.

Can an Employer ask about my Criminal Record?

Yes, an employer is allowed to ask about any crimes a potential employee may have committed in the past.

Can I be Fired for Having a Criminal Record?

This one is a little bit harder to answer. As noted some professions have strict rules when it comes to certain criminal records, for example, a person convicted of major fraud might not be able to find employment as an accountant.

The rule of thumb is that the crime shouldn’t be relevant if it is not related to the job you intend to do. In other words, a person convicted of shoplifting probably shouldn’t be fired from their job as a doctor.

Depending on the job and crime committed, your boss may have the right to let you go. In other scenarios, a court may view it as being an unfair dismissal.

In Conclusion – How long does a Criminal Record Last and can I get Rid of It?

In South Africa, a criminal record will not be automatically revoked after a set period of time. This means that if an individual does not take steps to clear their name, they will keep their criminal record for life.

Certain, less severe crimes such as petty theft and minor assault will normally result in a criminal record that can be wiped away 10 years after the date of conviction. Other, more serious crimes such as rape and murder are normally not applicable for clearance and the record will remain forever.

Once the 10-year period has passed, the individual must apply for a Police Clearance Certificate, remove themselves from any relevant criminal registries and finally, apply to the Director-General to have their record removed.

A criminal record may hamper your ability to find work but there are many employers that do not see it as a stumbling block and would be willing to hire such a person. Certain scenarios in the workplace may constitute unfair treatment and discrimination if the criminal record has no bearing on the penalties incurred. 

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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