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Legal and General Implications of Having a Criminal Record

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Published Date: June 10, 2021

In a country with a high rate of crime like ours, the issue of a criminal records is pertinent and requires the necessary attention. With Covid-19 forcing constant law amendments, it is even more necessary for people to be aware of the ramifications of criminal records as they can easily and unknowingly find themselves on the wrong side of the law. Having a criminal record can have severe and far-reaching long-term implications and, as such, can complicate a person’s life in various ways. Whilst most people have a vague idea of the hinderances that may be caused by having a criminal record, very few people distinctly understand the various implications of having a criminal record; when can one have a criminal record; whether the nature and extent of the criminal offence concerned is pertinent in the question of a criminal record; whether same can be “cured” after serving the necessary sentence and, if so, how do you go about “curing” same. These are all the questions that this piece intends to clarify, to a certain degree.

Effects of a Criminal Record

A criminal record can have serious effects on a person’s life – legally and otherwise. Crucially, to attract a criminal record, the nature of the offence is not a factor of consideration. Therefore, a question of whether the crime is serious or not does not matter. Although there is no exhaustive list of instances/situations where having a criminal record will serve as a stumbling block in a person’s life, there are generally prominent instances. These include:

Career-limitations – many employers are hesitant to employ people who have previously been convicted of criminal offence. Whilst some may want to scrutinise the context, nature and the extent of the offence, most will bypass a person the moment they realise she/he has a criminal record.  The law may also specifically preclude people from holding a public office, for example, Section 47(1)(e) of the Constitution of the Republic of South Africa imposes restrictions on Members of Parliament. This provisions states, “ anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.”

Aggravating factor – if you are subsequently found guilty of another criminal offence in future, your previous criminal record will serve as an aggravating factor i.e. it will worsen your sentence in a criminal case that is not connected to your previous offence.

Potential travel limitations – various States have control over who they allow in their countries and, some, do not allow people who have criminal records. This limitation, to a large extent, is intertwined with the abovementioned limitation “career-limitations”.

When Do You Get a Criminal Record?

Firstly, one can get a criminal record by pleading guilty to the offence with which she/he is charged. Secondly, when, after having pleaded not guilty, but subsequently found to be guilty. Thirdly, when you pay an admission of guilt fine. When you are found guilty, there is little to nothing that you, as an accused, can do with getting a criminal record. The position is slightly different with an instance where you immediately plead guilty, or you immediately pay an admission of guilt fine. Whilst these 2 options may seem like “an easy way out”, they do attract a criminal record which will have severe ramifications in a person’s life. As such, it is critical that you seek proper legal advice before you plead guilty or pay admission of guilt fine.

Expungement of a Criminal Record

The law, specifically the Criminal Procedure Amendment Act, does provide for the expungement of a criminal record – albeit under certain instances and conditions. The Criminal Procedure Act delineates the application process for the expungement of criminal records and who is eligible to have their records expunged. The Act provides that a person may only apply to have their criminal record cleared if 10 years has lapsed after the date of the conviction of the offence, and if the person has not been convicted of any other offence and sentenced to a period of imprisonment without the option of a fine during those 10 years.

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