A conviction for drinking and driving in South Africa does not end when the fine is paid or the licence suspension lifts. The conviction is entered onto the criminal record maintained by the South African Police Service, and it stays there unless it is formally removed. For many motorists that record becomes the part of the sentence that hurts the longest, turning up in police clearances, employment checks, visa applications, and firearm licence applications years after the court matter has been finalised.
The legal mechanism for clearing an old conviction is called expungement. It is not a pardon and it is not an appeal; the conviction is not overturned. Instead, after a defined waiting period, and where the sentence meets certain conditions, the record of the conviction is removed from the SAPS Criminal Record Centre database. For drinking and driving convictions, expungement is sometimes available and sometimes not, depending on what sentence the court imposed.
This article explains the expungement process in South Africa, who qualifies, and how an application is made to the Department of Justice and Constitutional Development.
What Expungement Means Under the Criminal Procedure Act
Expungement in South Africa is governed by section 271B of the Criminal Procedure Act 51 of 1977, inserted by the Criminal Procedure Amendment Act 65 of 2008. The section allows for the removal of a conviction from the criminal record of a person where the prescribed period has passed and where the sentence was not one of direct imprisonment.
An expungement does not erase what happened at the trial or rewrite the court order. What it does is direct the Head of the Criminal Record Centre of the South African Police Service to initiate the record removal process, which involves removing the record of the conviction from the central database and, by extension, from the police clearance certificates that flow from it. After expungement the conviction should no longer appear when a prospective employer, a foreign embassy, or a licensing authority runs a criminal record check.
Importantly, expungement operates only on the criminal record. It does not undo a driver’s licence suspension, the endorsement of a licence, or any driving privilege consequence imposed under the National Road Traffic Act 93 of 1996. Those run on their own separate timelines and are administered by the relevant licensing authority.
Who Qualifies to Clear a Criminal Record
Section 271B sets two hard requirements, and both must be met before an application will be considered. The first is the waiting period: at least 10 years must have elapsed since the date on which the sentence was completed. The second is the nature of the sentence: the conviction must not have resulted in a sentence of direct imprisonment.
The 10-year period is counted from the date the sentence was completed, not the date of conviction or the date of sentencing. For a drinking and driving matter finalised by a fine, the clock generally starts when the fine is paid in full. Where the court imposed a wholly suspended sentence of imprisonment, the waiting period runs from the date the suspended period expires. Each case turns on the exact terms of the sentence order.
Because the bar on direct imprisonment is absolute, the following outcomes for a drinking and driving conviction usually sit on different sides of the line:
- Fine only. A sentence of a fine, with no imprisonment, is generally eligible for expungement once 10 years have passed since payment.
- Wholly suspended imprisonment. Where the court imposed imprisonment but suspended the whole of it on conditions, the conviction may be eligible after the suspension period lapses, provided the conditions were not breached.
- Partly suspended imprisonment. Where part of the sentence was served as direct imprisonment and part was suspended, the conviction does not qualify, because direct imprisonment was imposed.
- Direct imprisonment. Any sentence of direct imprisonment, even a short one, disqualifies the conviction from expungement under section 271B.
- Correctional supervision. Where the court imposed correctional supervision as a sentence of imprisonment, eligibility depends on how the court framed the order and should be assessed by an attorney.
Section 271B also lists specific offences that are excluded from expungement in all circumstances. Driving under the influence of alcohol, and driving with excessive blood or breath alcohol, are not on that excluded list. This means that, in principle, a drinking and driving conviction can be expunged, provided the sentence requirements are met.
How to Check What Is on Your Criminal Record
Before applying for an expungement, you need a clear picture of what the criminal record actually says. The conviction, the exact offence, the date of sentence, and the sentence imposed all appear on the SAPS criminal record, and an application that misstates any of these details will be delayed or refused.
The most reliable way to obtain the record is to apply for a police clearance certificate at any SAPS station. The application is made on a SAPS 91(a) form, with a set of fingerprints taken at the station and the prescribed fee. The criminal record certificate is issued by the Criminal Record Centre in Pretoria and sets out each conviction, the case number, the court, and the sentence.
- Apply for a police clearance certificate. Submit the SAPS 91(a) form and have your fingerprints taken at a police station.
- Read the certificate carefully. Note the exact offence, the date of conviction, the sentence, and the date the sentence was completed.
- Confirm the 10-year waiting period has passed. Count from the date the sentence was completed, not the date of conviction.
- Check for other convictions. An expungement application can cover more than one qualifying conviction, but each must meet the requirements on its own.
The Expungement Application to the Department of Justice
The expungement application is made to the Department of Justice and Constitutional Development. The Department, not the court, decides the application, and there is no court hearing in the ordinary course. The process is administrative, and the decision is taken on the papers.
The application is made on the prescribed expungement form, which must be completed in full and accompanied by a set of fingerprints, a copy of the police clearance certificate, and the supporting documents that confirm the waiting period has elapsed and the sentence was not one of direct imprisonment. Where the conviction resulted from an admission of guilt fine, the application must show that the fine was paid and that no imprisonment was imposed.
An attorney is not strictly required, but in practice the application is far easier to get right with one. Mistakes on the form, missing documents, or a wrong reading of the sentence are the most common reasons that applications stall. The Department will not chase the applicant for corrections; an incomplete file simply sits.
- Obtain the police clearance certificate and confirm the conviction details.
- Complete the expungement application form issued by the Department of Justice and Constitutional Development.
- Attach fingerprints and supporting documents, including proof of the sentence and the date it was completed.
- Submit to the DOJ&CD at the address listed on the form and keep proof of submission.
- Wait for the outcome. Processing times vary, and the Department will confirm in writing if the expungement is granted.
- Confirm the record has been removed. After notification, apply for a fresh police clearance certificate to verify the conviction no longer appears.
What Expungement Does Not Do
It is important to be honest about the limits of expungement. An expungement removes the record of the conviction from the SAPS criminal record database. It does not rewrite history. The court file, the docket, and the conviction itself remain on record with the court, the National Prosecuting Authority, and other state bodies that hold their own records.
Some institutions, particularly foreign embassies, ask applicants to disclose any conviction regardless of whether it has been expunged. Visa applications for the United States, for example, require disclosure of the underlying arrest and conviction even where a local expungement has been granted. Lying on such a form is treated as fraud and is far more damaging than the original conviction.
Expungement also does not affect any order made under the National Road Traffic Act. A licence suspension or endorsement runs its own course and is administered by the licensing authority, not by the Criminal Record Centre. The two systems run in parallel and clearing one does not clear the other.
Frequently Asked Questions
How do I clear my criminal record for drinking and driving in South Africa?
You apply for expungement under section 271B of the Criminal Procedure Act 51 of 1977, through the Department of Justice and Constitutional Development. The application is available 10 years after the sentence was completed, and only where the conviction did not result in a sentence of direct imprisonment. The form is supported by fingerprints and a police clearance certificate.
Can a drinking and driving conviction be expunged in South Africa?
Yes, in principle. Driving under the influence and driving with excessive blood or breath alcohol are not on the list of offences excluded from expungement. The conviction can be expunged if at least 10 years have passed since the sentence was completed and the sentence was not one of direct imprisonment. A fine or a wholly suspended sentence usually qualifies; direct imprisonment does not.
How long does expungement take in South Africa?
The waiting period is 10 years from the date the sentence was completed before you may even apply. Once the application is lodged with the Department of Justice and Constitutional Development, processing usually takes several weeks to a few months, depending on the workload of the Criminal Record Centre and whether the documents are complete.
Does an admission of guilt fine for drunk driving give you a criminal record?
Yes. Paying an admission of guilt fine for a drinking and driving offence generally results in a conviction and a criminal record, even though the matter never goes to court. The conviction is recorded at the SAPS Criminal Record Centre and will appear on police clearance certificates until it is expunged, subject to the same 10-year and no-direct-imprisonment requirements.
Can I clear a criminal record myself, or do I need an attorney?
You may submit the expungement application yourself, and many applicants do. An attorney is not legally required. In practice, however, an attorney helps by confirming eligibility before you apply, obtaining the police clearance certificate, completing the form correctly, and following up with the Department of Justice and Constitutional Development, which reduces the risk of the application stalling on a technicality.
Get help with an expungement. If you have an old drinking and driving conviction and you want to know whether it can be cleared, the Criminal Law department at Otrebski Attorneys can assess eligibility, prepare the application to the Department of Justice and Constitutional Development, and follow it through to completion. We are a 100% women-led firm with a Level 4 B-BBEE rating, rated 5 stars across 12 reviews, working from our single Sandton office, and our Director Nastasja Otrebski leads the team that assists clients across Gauteng and South Africa.
Call 060 500 3098 or book an appointment with our Criminal Law team.
Disclaimer. This article is general information about South African criminal procedure and expungement under section 271B of the Criminal Procedure Act 51 of 1977, not legal advice for a specific matter. Eligibility for expungement depends on the exact offence, the sentence imposed, and the date the sentence was completed, all of which must be confirmed from the police clearance certificate before any application is made. For advice on a particular conviction, consult a qualified attorney or Legal Aid South Africa.