Analysis of the criminal records expungement process in South Africa

The issue of criminal records and the expungement process is undoubtedly a complex one, attracting much debate, largely resulting from archaic understandings of criminality. For too long this discourse has been used to rationalise the collective marginalisation of people with criminal records from society, which has not only been a justification for systemic discrimination across various sectors, but also actively contributes to cycles of violence and inequality that have significantly impaired South Africa’s socio-economic development.

In South Africa, there are thousands of people who have been directly and indirectly impacted by the criminal records system. Irrespective of the type of crimes people have committed, the stigma of their criminal history creates barriers to employment, starting a business, accessing skills, learning opportunities, and generally engaging in the economy in a way that utilises their unique capabilities. Excluding people with criminal records from the economy in this way not only contributes to the country’s soaring unemployment rates, but also increases their risk of recidivism, thereby adversely affecting the safety and security of their families, community and society as a whole.

Sex workers are particularly vulnerable to the grips of the criminal legal system, with many of them experiencing police harassment and acquiring criminal records. Sex work is currently fully criminalised under South African law,1 effectively deeming anyone buying, selling and facilitating the sale of sex as criminals. However, since it is difficult to prosecute someone for engaging in sex work (unless caught in the act), authorities tend to rely on entrapment and municipal by- laws, such as loitering, to arrest sex workers. Criminal records simply serve to exacerbate the stigma that this highly marginalised group already experience on a daily basis.

Therefore, it becomes essential to consider the effectiveness of the current criminal record expungement process in South Africa. One needs to question what the intended purposes of criminal records are; whether these purposes are met in practice; and whether they are in fact legitimate and proportionate in relation to the associated negative impact on people in society. It is in this light that the present report will provide an overview and critical analysis of the governing criminal records expungement process in South Africa, and make practical recommendations to improve the status quo. Ultimately, the aim is to restore the dignity of people with criminal records by challenging the legitimacy of the narratives that have been used to justify their exclusion from society; curating spaces for their experiences to be validated; and creating opportunities to elevate their potential both as individuals and as a collective.

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