It has become the norm and probably essential, for employers to check whether prospective employees have a criminal record. So, do not be surprised when you apply for a job or when you are up for promotion if your Police Clearance Certificate is suddenly requested even though, with your initial appointment, it was not required. It has now become standard practice in most employment environments.
Police clearance certificates are generally not requested for spurious reasons. It might be based on reasons such as an employer wanting to ensure that it does not appoint a paedophile, sexual predator or someone with any other criminal record.
Just imagine if one of your colleagues was found guilty of a sexual offence in the workplace and has a criminal record for such offences. Under these circumstances the employer might be held liable by the victim for not ensuring that a proper check was done before employing the perpetrator.
It may be that because of the request of this certificate, the ‘joint’ on the beach many years ago comes back to haunt you. Suddenly you become aware of your ‘criminal past’. You recall being caught on the beach with a ‘joint’ and having to phone your parents to help you to be freed from the police cells.
Having a criminal record may disqualify you from securing employment or from obtaining that long-awaited promotion you’ve been working so hard to achieve.
In our previous article “Expunging a criminal record for the use of dagga”, we alerted you to the fact that you might qualify to get your criminal record removed (expunged) in terms of section 271B(1) of the Criminal Procedure Act no. 51 of 1977 after a period of 10 years has lapsed from the date of conviction.
The responses to our article indicated that most of the readers do not qualify because the 10-year period has not lapsed. Consequently, the question arises whether you will qualify to have your record expunged even though the 10-year period has not lapsed. We contacted the Department of Justice to enquire about criminal records that do not meet the 10-year threshold and we were informed that they have no discretion in this regard.
Criminal records not qualifying for expungement:
Below are examples of persons who have criminal records but do not qualify for expungement in terms of the above mentioned:
- “I was found in possession of a dagga by Police Officers, when I was still at University. Upon my arrest, I was advised by a Police Officer to pay a fine of R 50.00 so that I could avoid long court procedures. Two years after my conviction, upon applying for a job, I learned that I have a criminal record for being in possession of dagga, and thus I have not been able to secure employment with my qualification.”
- “I was convicted and sentenced for the use of cannabis. Upon my arrest the police officer on duty advised me to pay R 300.00 so that I may leave the police station to continue with my life. I thought paying the R 300.00 would sweep the matter under the carpet. Upon applying for a promotional position at work, I learned about my criminal record. As a result, I was not appointed for the position.”
- “I am a fruit seller. I was wrongly accused of assaulting my competitor, who is a vendor. The Police Officers were called to our place of selling, to arrest me. When I was held in Police Custody, a Police Officer told me that I may be released on condition I pay R700.00. I was issued a notice to pay a fine either to the clerk of the court or at a police station on or before the date stated on the notice. I complied with the instructions given to me by the Police Officer, by paying the R 250.00 to the clerk of the Court. The fruit selling business, no longer made profit as a lot of people were selling fruit on the street. Today I want to be an uber driver; however, I can’t as my criminal record bears record that I assaulted my business competitor.”
Many of the responses we received paints a picture of being arrested and advised (coerced) by Police Officers to pay a fine and in so doing avoid jail time or the embarrassment of having to inform your parents of the ordeal. The Police can be very persuasive by encouraging you to pay the fine and not having to appear in court or staying overnight in the cells especially over a weekend.
The law places an obligation on Police Officers to explain the impact of paying a fine in exchange for your release from police custody. The Criminal Procedure Act (hereinafter referred to as “the CPA”) makes it possible for the payment of an admission of guilt fine. Section 57(1) of the CPA, states:
Where the accused may, without appearing in court, admit his guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate’s court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at such local authority.
You must know that paying a fine results in a recording of such a fine as a conviction and sentence. This method of dealing with small/trivial cases is not unusual. Firstly, if you pay the fine you, forfeit the right to force the state to prove your guilt and your opportunity to prove your innocence. Secondly, if you pay the fine you will get a criminal record.
In many instances, the consequences of paying a fine was not properly explained to the persons. Our courts have taken cognizance of the consequences and the detrimental impact it might have on such a person’s future.
As a result of the aforementioned, in the case of S v Madhinha 2019 (1) SACR 297 (WCC), this practise was successfully challenged in court. The courts ruled that convictions (paying a fine) obtained in this way may be reviewed and set aside.
The Courts ruled that when suggesting to a person to pay a fine, the Policeman must have alerted the person of his right to challenge the accusation in court. The guidelines provided in S v Parsons 2013 (1) SACR 38 (WCC), must be followed by a magistrate during the hearing of such a reviewing application.
The guidelines are as follows:
- Are there considerations of equity and fair dealing which compel the Court to intervene to prevent failure of justice?
- The accused must show good cause for mistakenly or erroneously admitting guilt.
- The accused must show that, were the charge to go to trial, she would have had a probable or arguable defense.
Our courts ruled that if the above grounds are proved, the conviction may be set aside and the fine paid must be reimbursed.
We at Faure and Faure Incorporated have indulged in extensive research, to assist many clients who have come to us to set aside their convictions and sentences. Let us, help you!
Article by Lloyd Fortuin (Faure & Faure Inc. Director) in collaboration with Article Clerk, Kuhle Unathi Majola.
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