Last month, Ronald Lamola, South Africa’s justice minister, announced that the government is taking steps to clear the criminal records of individuals who violated Covid-19 restrictions. During the country’s lockdown, over 400,000 South Africans were arrested for trying to make a living and not adhering to the curfew. This is a positive development from the justice department and should be a top priority. People with criminal records often face discrimination when seeking employment, despite the fact that they should not legally be discriminated against. In 2008, South Africa amended its legislation to allow individuals with a history in the justice system to have their records expunged based on specific criteria. Having a criminal record can create barriers to movement across borders and restrict access to further education, severely limiting economic opportunities for individuals. This makes it difficult for them to positively contribute to society and the economy, as well as improve their own lives and the lives of their families. While there is no reliable data on reoffending rates in South Africa, a study conducted in one of the country’s provinces found that limited economic prospects were one of the biggest challenges faced by those with a criminal record. This is supported by evidence from other countries, which shows that excluding individuals from economic opportunities increases the risk of reoffending, perpetuating a cycle of conflict with the law that harms everyone. It is necessary to address the barriers posed by having a criminal record, not only those related to Covid-19 restrictions. The expungement of records would not only give individuals a second chance but also breathe life into the 2008 legislation and its intended purpose. There are several ways in which the state can do more to assist individuals in turning their lives around. First, the application process should be designed to minimize costs for applicants. Although the expungement process is free, applicants are required to have a police clearance certificate, which costs 170 rand (£7.40) – a fee that is unaffordable for those with limited resources and should be eliminated. Second, more individuals should be authorized to approve expungement applications. Currently, the completed application form and police clearance certificate must be submitted to the director general of the Department of Justice and Constitutional Development. The director general is the only official authorized to approve expungements, and the burden placed on a single official contributes to the backlog in processing applications. Third, local Department of Justice offices should be authorized to receive applications and issue receipts, saving applicants the financial costs and emotional distress of not knowing if their paperwork has been received. Fourth, and most importantly, the expungement process should be automated. Government-led expungement is the only way to ensure that all eligible individuals can access and benefit from the process. Many people simply do not have the knowledge of their eligibility status required to submit an application. All individuals whose records are expunged should be informed at no cost, including an explanation of what it means for their lives, so that they do not miss out unnecessarily. Fifth, the Department of Justice should reevaluate the time period before a criminal record can be expunged. Currently, the waiting period is 10 years, which is effectively an administrative sentence. There is insufficient evidence to suggest that this is the correct length of time. In addition to state efforts, non-profit organizations like Freedoms South Africa can help with this endeavor. Freedoms South Africa recently launched an app called Clear Me, which serves as South Africa’s first automated expungement guide. The app helps individuals determine if they have a criminal record and if they qualify for expungement, as well as guides them through the process. The app was designed to enable community organizations, librarians, and advice offices to assist individuals in their communities. Given South Africa’s high crime rates, particularly violent crime, the concept of second chances for those involved in the criminal justice system may not be welcomed by all. However, as a society that understands the harm caused by systemic discrimination and exclusion, we cannot believe that further discrimination and exclusion are the answer to South Africa’s violence problem. Excluding individuals who have been involved in the criminal justice system prevents them from making positive contributions to society and the economy, which has detrimental effects on individuals, families, communities, and society as a whole.
Koketso Moeti urges South Africa to view the cancellation of Covid criminal records as a stepping stone.
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