Criminal record expungement checklist

An expungement application fails far more often on paperwork than on law. The dates do not match, a certified copy is missing, the form was filled in from memory instead of from the record. This checklist exists to stop that, by putting the steps in the only order that works.

What this document does and when to use it

The checklist walks you through an application to have a criminal record expunged under section 271B of the Criminal Procedure Act 51 of 1977. It is a working document, not something you send anywhere. You keep it, fill in the dates and reference numbers as you go, and use it as the index to the bundle you post to the Director-General.

Use it if you have a conviction on your South African Police Service record, you believe the waiting period has passed, and you want the entry removed. Print it, or copy it into a document you can edit, and keep it with the papers.

Before you start, run your dates through our expungement eligibility calculator and read how to clear your criminal record in South Africa for the legal background. This article is about working the checklist itself: what each step is for and what goes wrong at it.

Before you start: get these facts straight

You need one thing above all: the record itself, as SAPS holds it. Not your recollection of what happened in a magistrates' court years ago. People are wrong about their own records in both directions.

From that record you take four things that the whole application depends on: the case number, the court, the offence as worded on the record, and the date of conviction. Everything you write on the form must match those exactly.

You will also need a certified copy of your identity document, proof of your current address, and any court papers you still have. Certification is free at a police station or from a commissioner of oaths.

Two situations change the shape of the application. If you were under 18 at the time of the offence and the matter was handled under the Child Justice Act 75 of 2008, shorter periods apply. And if the conviction was for a sexual offence, get advice before you spend anything, because the National Register for Sex Offenders runs on its own rules and is not touched by this process.

Walking through the checklist, step by step

Step 1 gets your record from SAPS. You apply at a police station to the SAPS Criminal Record Centre for a police clearance certificate, have your fingerprints taken and pay the fee. Keep the receipt number. This has to happen first and nothing else can start without it.

Step 2 is reading the record and writing down the details. The checklist gives you six lines: case number, court, offence, date of conviction, sentence, and any other convictions listed. Fill them in by copying, character for character. The note under the step is the one people ignore: "The date of conviction is the date the waiting period runs from. Not the date of the arrest, not the date you finished paying a fine." A record listing more than one conviction changes your position, so record them all.

Step 3 works out the waiting period. You count from the date of conviction, confirm that you were not convicted and sentenced to imprisonment without the option of a fine during that period, and check the result against the eligibility calculator. If the matter was a child justice matter, you use the shorter child periods instead. Write down the earliest date you are eligible even if it has already passed, because you will need it if the Department queries your timing.

Step 4 gathers the documents. The original clearance certificate, a certified copy of your identity document, proof of address, any court documents, the receipt for an admission of guilt fine paid at a police station, proof of your date of birth for a child justice matter, and a marriage certificate or change of name document if your name has changed. The name mismatch is a quiet killer: without the linking document the Department cannot connect the record to you.

Step 5 completes the prescribed form. You download the current expungement application form published by the Department of Justice and Constitutional Development from its website, or collect it from a Department office or a magistrates' court. Read the whole form before you write on it. Complete every field, sign and date it, have it commissioned if it requires a commissioner of oaths, and then do the check the step ends on: that the case number and conviction date on the form match the clearance certificate exactly. Do that with both documents side by side, not from memory.

Step 6 submits the application. Address it to the Director-General: Department of Justice and Constitutional Development, attach the Step 4 bundle, and photocopy the whole thing before it leaves your hands. Record the date you sent it, the method, and the proof of sending.

Step 7 is follow-up, with space for your first written enquiry, the reply, and any further enquiry. A blank Step 7 six months later means you cannot show that you chased anything.

Step 8 verifies afterwards, and it is the step people skip. The certificate of expungement arrives, and then you apply for a fresh police clearance certificate to confirm the SAPS entry has actually been removed. An approved application does not always mean the entry is gone.

A worked example

This example is illustrative only.

Sipho Ndlovu was convicted of shoplifting in a magistrates' court and paid a fine. He is now applying for a job that requires a clean clearance certificate, so he applies at his local police station, has his fingerprints taken and pays the fee.

The certificate arrives and surprises him twice. The offence is worded as theft, not shoplifting, and the date of conviction is a month later than he remembered because the matter was postponed. He copies both exactly into Step 2, counts the waiting period from the real conviction date, and confirms the result on the calculator.

At Step 4 he realises the surname on the record differs from his current identity document, so he adds his marriage certificate to the bundle. He completes the form using only what the certificate says, has it commissioned, photocopies the bundle, and sends it by registered post, writing the tracking number into Step 6.

Eight months later the certificate of expungement arrives. He applies for a fresh clearance certificate anyway, and only when that comes back clean does he give it to the employer.

The mistakes that make an application like this fail

Applying before you have the clearance certificate. You fill the form in from memory, get the date or the case number wrong, and the file will not match.

Counting the waiting period from the wrong date. From arrest, or from the day the fine was paid, instead of from the date of conviction. This produces an application that is simply premature.

Uncertified copies, or a name mismatch with nothing to link the two. Both are free to fix and both guarantee a delay if you do not.

Sending your only copy. Applications get mislaid. With a photocopy, a resend takes an afternoon. Without one, you start again at Step 1.

Paying a company to do it for you. There is no charge by the Department for considering an application. Businesses advertising expungement services charge you for posting a form you can post yourself.

Stopping when the approval letter arrives. The approval is not the outcome. The clean certificate is.

How to submit the application and follow it up

Send it in a way you can prove. Registered post to the Director-General gives you a slip and a tracking number. By hand at a Department of Justice office is better if you can get there, because you can ask for your copy to be stamped and dated back to you. If you email, keep the sent copy and ask for written acknowledgement.

Then diarise a follow-up for three months, and again every three months after that. Follow up in writing, quoting your identity number, the case number and the date you sent the application, and keep the copy. A written enquiry produces a traceable response where a phone call produces nothing.

Plan on many months rather than weeks. The clearance certificate alone can take from several weeks to a few months. The Department then takes several months to consider the application, SAPS takes further weeks to remove the entry, and the fresh certificate you use to verify takes weeks to months again. If a job offer depends on this, tell the employer that the application has been submitted and offer your proof of submission.

Understand the limits. An expungement removes the conviction from the SAPS criminal record. It does not remove the court file, an entry on the National Register for Sex Offenders, a credit bureau listing, a professional body's finding, or a private employer's internal notes. And it does not fix a dishonest answer already given on a job application form.

If it does not work

Follow up in writing again, and resend the identical bundle if the Department has no record of receiving it. That is what the photocopy was for.

Ask a university law clinic or a community advice office to help you complete or chase the application. They assist at no charge and many do this work regularly. Our legal aid page sets out who qualifies for Legal Aid South Africa, which is on 0800 110 110 and deals mainly with criminal defence rather than expungement, though its offices can point you in the right direction.

If the application is refused, ask in writing for the reason. Refusals are usually about eligibility dates or a missing document, both fixable.

LawMatch is not a law firm and this article is not legal advice.

Frequently asked questions

Do I need an attorney to apply?

No. The application is designed to be made by the person whose record it is, and the Department does not charge to consider it.

When does the waiting period start?

On the date of conviction, which you take from the clearance certificate. Not the arrest date, and not the date a fine was paid. Check the result with our expungement eligibility calculator.

I paid an admission of guilt fine. Do I have a record?

Sometimes, yes. An admission of guilt fine can result in a conviction being recorded, and the clearance certificate is the only way to find out. That is why Step 1 comes first.

The approval arrived but my record still shows the conviction. What now?

That is exactly why Step 8 exists. Follow up in writing with your certificate of expungement attached, and apply for another clearance certificate once you have confirmation that SAPS has acted.