Expunging a criminal record for the use of dagga – Criminal Record Dagga

With the recent judgment in the matter of the so called “Dagga couple” (Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC) (18 September 2018)), the Constitutional Court ruled that legislation banning the private use of dagga by an adult is unconstitutional. This judgment obviously raises many debates. One of which is the debate on whether a person with a criminal record for a dagga conviction would be able to have this criminal record automatically removed.

The rule is that once you have a criminal conviction, it is registered against your name and remains there until the day you die. This poses a problem for someone with a dagga conviction. You will have a criminal record for a crime that is no longer classified as such.

A practical example:

Let’s suppose that you have excelled in your career to such an extent that you have reached the ceiling of the available opportunities in South Africa. The next step would be to pursue opportunities that have arisen overseas and take up that dream job. When applying for your work visa, you qualify for the criteria such as qualifications and work experience. However, you are then required to provide a police clearance certificate. The dream suddenly becomes a nightmare when your police clearance certificate reveals that you have a criminal record for the possession of dagga for which you paid a R50,00 (Fifty Rand) fine and conveniently forgot about. A minor indiscretion from your youth resulted in a criminal conviction and criminal record. Now what?

How to remove a criminal record for the use of Dagga

A practical solution: 

The question that you need to ask is whether one can in fact remove a criminal record against your name, and if yes, what are the requirements to do so.

It is indeed possible in terms of the Criminal Procedure Act, Act 51 of 1977 (“the Act”), which stipulates that you can approach the Director-General of Justice and Constitutional Development and apply for the expungement of your criminal record, for a dagga conviction or otherwise.

The requirements to be successful with such an application are the following:

1. Ten (10) years has lapsed since the date of your conviction.
2. You have not been convicted of any other offence or sentenced to a period of  imprisonment without the option of a fine during those ten (10) years.
3. You were sentenced for:
   1. The passing of sentence was postponed;
   2. You were cautioned and discharged;
   3. Fine imposed that did not exceed R20 000.00;
   4. Corporal punishment;
   5. Imprisonment with the option of a fine not exceeding R 20 000.00;
   6. Sentence of imprisonment was wholly suspended;
   7. Correctional supervision;
   8. Periodical imprisonment.

You will not qualify for an expungement if:

1. You were convicted of a sexual offence against a child or a mentally disabled person or of an offence where you were found unsuitable to work with children;
2. Your name is included in the National Register for Sex Offenders or the National Child Protection Register,

but you may qualify if your name has subsequently been removed from such Register.

The procedure to follow:

1. Complete an Application form in terms of Section 271B(1) of the Act. These application forms can be downloaded from the Department of Justice and Constitutional Development’s website at http://www.justice.gov.za/.
2. Submit your Application to the Director-General: Justice and Constitutional Development, attaching a police clearance certificate which indicates that ten (10) years has lapsed since the date of your conviction.
3. If your name was included in one of the above Registers, confirmation that your name has been removed from such Register must be obtained and also attached to your application.

Should your application be successful, a certificate of expungement will be issued and submitted to the head of the Criminal Record Centre of the South African Police Service, to remove your criminal conviction. If not, you will be informed accordingly and provided with the reasons.

Should the ten (10) years not yet have passed since the date of your dagga conviction, the process is not as simple, and you will strictly speaking not qualify for an expungement as provided for above. This goes against the principle of reasonableness as you will have to put your dream job on hold until the ten (10) years have passed. All because of a crime that is no longer criminal!

We at Faure & Faure Inc. are currently in the process of obtaining certainty from the Director-General on this matter and invite you to be on the lookout for the outcome on our website.

Should you require any advice and assistance in this regard do not hesitate to contact our offices.

Article written by Inge Johnson (Attorney at Faure & Faure Inc.) with technical assistance provided by Lloyd Fortuin (Director at Faure & Faure Inc.).

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