Criminal Rights
You Cannot Get the Job — You Have a Criminal Record From When You Were a Minor
An employer refuses to hire someone based on a criminal record for an offence committed while the person was under 18, without knowing the record is legally expunged or expungeable.
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The Fallacy
Treating a Legally Non-Existent Record as a Permanent Fact
The employer assumes that a record that appears on a database is a current and valid legal fact. This is false in two ways. First, the Child Justice Act provides for the expungement of many juvenile records after a defined period — once expunged, the record is legally deemed to have never existed. Second, even where expungement has not yet been formally processed, the Act creates an entitlement to expungement that the individual can and should exercise. Using an expunged or expungeable juvenile record to deny employment is treating a legal non-fact as a fact.
What the Law Says
Your Legal Foundation
Child Justice Act 75 of 2008
Section 87 — Expungement of records
“The Director-General: Justice and Constitutional Development must expunge a record of a diversion, sentence or order made in terms of this Act if the following criteria are met: in the case of a diversion order, one year has elapsed since the date of the diversion; in the case of a sentence or order not involving imprisonment, three years have elapsed; and in the case of a sentence involving imprisonment, ten years have elapsed — provided the child did not commit a scheduled offence during that period. Once expunged, the person is deemed in law not to have been convicted of the offence.”
Many young people who were convicted of offences as minors have a legal right to have those records expunged — and once expunged, those convictions are legally treated as if they never occurred. An employer who rejects an applicant on the basis of an expunged record is making a decision based on information that has no legal existence.
Employment Equity Act 55 of 1998
Section 6(1) — Prohibition of unfair discrimination
“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including... on any other arbitrary ground.”
Refusing employment on the basis of a juvenile criminal record that is legally expunged — and therefore does not exist in law — constitutes unfair discrimination on an arbitrary ground. The applicant can refer an unfair discrimination dispute to the CCMA.
Child Justice Act 75 of 2008
Section 87(10) — Effect of expungement
“A person whose record has been expunged in terms of this section may, for all purposes, deny or not disclose the existence of that conviction, and no evidence relating to such conviction shall be admissible in any proceedings.”
Once a juvenile record is expunged, the individual is legally entitled to answer 'no' when asked whether they have a criminal record for the relevant offence. They cannot be penalised for denying the conviction exists.
What Scripture Says
God's Word on This
Isaiah 43:18–19 (NET)
“Do not remember the former events, nor consider the things of long ago. I am about to do something new. Now it springs forth — do you not perceive it?”
Scripture speaks of a God who does not allow past failures to permanently define a person's future. The Child Justice Act reflects this principle in law: the acts of a child should not be permitted to follow them into adulthood when the law has established a path to a fresh start.
Psalm 103:12 (NET)
“As far as the eastern horizon is from the west, so he removes the guilt of our rebellious actions from us.”
The law's provision for expunging juvenile records mirrors the theological concept of removal and restoration. Once expungement has occurred, the law treats the record as non-existent — as removed — not merely as forgiven but still counted.
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What They'll Say Next
Common Counter-Arguments
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They might say: “Even if it is expungeable, you have not yet applied for expungement — the record still shows up.”
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They might say: “Our insurance or licence conditions require us to check all criminal records and we cannot make exceptions.”
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