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Criminal Record Expungement: Saving grace or lapse in judgement?

Should Mandla Mandela, Pistorious and other well-known names just be getting away with it all?

The news that Oscar Pistorius may serve the rest of his jail term for culpable homicide from the comfort of his home follows hot on the heels of attempts by Mandla Mandela to overturn his assault conviction.

Mandla Mandela who, assaulted a man in 2013 during a road rage incident was fined a mere R10 000 for a crime that sees others serving jail time. To date Mandela has not even paid this minor rap on the knuckles, due to the “sentence” being suspended for a year.

If the law has different rules for different people, then the news that there may be further amendments to the law when it comes to criminal record expungement, should have us all very deeply concerned.

Our justice system seems to hand a heavy blow to some while conveniently overlooking others. Last month, former police spokesperson, Vincent Mdunge was sentenced to five years imprisonment by the Durban Regional Court when he was caught red-handed in 2014 on two counts of fraud and one of forgery for using a fake matric certificate to further his studies at UNISA and gain promotion in the police.

While the Judge acknowledged that he was a first time offender, she still chucked the proverbial book at him during sentencing, simply stating that there was nothing respectable about a high-ranking officer committing white collar crime in an already corruption-rife society.

How then is it possible that the criminal record expungement debate has reared its head again, with the possibility of even further amendments to the law? In 2009, changes to sections 2 and 3 of the Criminal Procedure Amendment Act, allowed for the expungement of criminal records relating to certain criminal convictions. What this basically means is that if a person meets certain criteria, they can apply to have their name cleared. Any background checks performed on that individual in future will not show any trace of prior convictions.

One of the reasons cited for this change in the law at the time, was that it would be “helpful” to people needing a clean record when applying for employment. Indeed, there are thousands of unemployed job applicants citing their criminal records as the reason for them not getting any job offers.

It seems contradictory to allow for more criminal record expungement while we deliver a rightfully heavy blow to those that lie on their CVs to get the jobs that they aren’t qualified for.

We live in a country where almost 600 000 learners who entered the schooling system 12 years ago, dropped out, leaving them without a matric certificate. Add to that figure, some research done by the Council of Higher Education (CHE), which shows that well over 40% of students end up dropping out of university.
So there are already hundreds of thousands of individuals who do not meet the criteria for the jobs they want, and you can put money on the fact that many of these individuals, will eventually, in desperation, pretend to hold those qualifications they never received, in an effort to be employed.
If we’re terrified at the thought of an unqualified surgeon operating on our loved ones, we should be equally terrified of a convicted negligent driver behind the wheel of a 10-ton truck, or even a convicted rapist lurking in an office full of female co-workers.

Yes, these are extreme examples. But our question is this: How far will the criminal record expungement process go? How will we distinguish between people who have been rehabilitated by the justice system or not? No company needs the disastrous consequences of hiring a fraudster as a financial director, or the unimaginable, a sexual offender at an educational institution.

We are not saying that every single person with a criminal record is unemployable – not at all. There are thousands of excellent candidates around, who may have practiced poor judgement at some point in their lives, which lead to a criminal conviction. There are also thousands of people who have paid for their crimes, served their time, and have been successfully rehabilitated.

The point is this – an employer still has every right to be presented with all the facts before deciding if the candidate is the right choice for their organisation or not. A poorly thought out criminal record expungement process could have disastrous consequences. Let’s hope that this one gets handled carefully.

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