Covid Criminal Records – The Case of South Africa 

Disclaimer: This article is written by Jessica Williamson. Any views and opinions expressed in this article are those of the writers and do not necessarily reflect the views or positions of the team editor nor any entities they represent.

South Africans who incurred criminal records for breaking Covid regulations are soon to have these expunged. Will this enable citizens to move on with their lives, or unfairly reward those guilty of violating the law? 

What is the South African government doing?

After months of speculation, the Justice Minister of South Africa, Ronald Lamola, recently confirmed that the South African government is implementing a policy to expunge the criminal records of citizens who broke lockdown rules. Transgressions include a failure to adhere to the nationwide curfew, as well as the attendance of unauthorised mass gatherings. The laws broken have, since the end of the pandemic, been repealed. 

Official records show that more than 400,000 South Africans were arrested for contravening these laws in 2020. Unlike in other jurisdictions, such as the UK, offences resulted not just in the mandatory payment of a fine, but in a criminal record, a measure widely criticised as unjust and unduly targeted at the poorest in society, who, driven to desperate measures by the pandemic, found themselves in conflict with the new laws. Nonetheless, there has been equally vigorous controversy surrounding the unorthodox decision to reverse these criminal records, a debate explored below. 

Is this the right thing to do? 

In examining whether expunging criminal records is the correct course of action, it is firstly necessary to consider the grave impact a criminal record can have on an individual’s life. Typically, it prevents them from travelling abroad, from working with children and from entering the job market; though it is in South Africa illegal for employers to discriminate on the basis of a criminal record, it remains a requirement to disclose one’s criminal history, with the result being that many prospective employees with criminal records are viewed as intrinsically less trustworthy by those examining their applications. In some communities, it may also lead to social stigma, as former friends and neighbours no longer wish to associate with anyone whose reputation is in any way tarnished. This long-term impact is part of the reason why, in criminal cases, guilt must be proven ‘beyond reasonable doubt’, as opposed to on the ‘balance of probabilities’ necessary in civil cases; that is to say, the state recognises that an individual must have committed severe harm to warrant such a punishment. 

Does the transgression of Covid regulations meet this high bar? Arguably, the laws implemented during the pandemic, though overly paternalistic, were laws of equal status to any other. The reason they have now been revoked is that they are no longer necessary to ensure public safety, not because they were not essential in the climate of the global pandemic, when the government’s mandate to stay at home at specific hours in the day aimed to protect the people. Therefore, though the laws are no longer in force, those who broke them are still guilty of disobeying the law as it stood then, strongly suggesting their criminal records should not be removed. 

Nonetheless, it is necessary to consider the purpose of criminal records, which is broadly threefold. Firstly, they ensure public safety, allowing future employers to make sensible decisions with regards to the candidates they are appointing for jobs. Secondly, they compound the deterrent effect of the criminal law; the inability to travel or work in a number of professions is a significant disincentive for those on the verge of committing crime. Thirdly, the restrictions they entail are a further form of punishment for breaking the law and a recognition of the egregious harm this has caused to the state.

With regards to public safety, it is unclear how this is advanced in any way by the retention of criminal records for transgressing Covid regulations. The threat of Covid now no longer exists, meaning the chance of these rule-breakers reoffending is minimal. It might be maintained that the retention of a criminal record grants employers a useful insight into the character of their prospective employee. Nonetheless, this pales in comparison to the harms of discrimination towards that same employee, likely to be turned away from a number of jobs. It is the unemployment arising from this that is likely to push them into more serious crimes of necessity. Therefore, it might actually be safer for the public if these records are expunged. 

In terms of the deterrent effect, the laws are once again no longer in place, meaning this is largely extraneous. Yet, even if this were not the case, it is unlikely that the possibility of a criminal record would have been a significant deterrent even in 2020. This is because the vast majority of those who broke the Covid regulations did so out of desperation, evident in reports of South Africans being arrested simply for trying to earn a living, and feed their families. When one’s livelihood is at stake, it is unlikely that the possibility of having a criminal record in the future (when many of these people are too poor to travel or not sufficiently skilled to obtain white-collar jobs either way) would factor heavily into one’s decision-making calculus. 

Such analysis can also apply to the third purpose of punishment. Both from the perspective of utilitarianism and natural law ethics, it seems unjust to punish the most vulnerable in society: the people working in low-paid service roles that disappeared during the pandemic, whom we are thus led to believe have already been punished enough. They may have disobeyed the state, but they are also the people whom the state has failed the most. Expunging their criminal records may be a means of making amends, broadening the range of opportunities to which they will henceforth have access. 

If none of the purposes of a criminal record are truly fulfilled, retaining them seems otiose. Considered in conjunction with the harms of criminal records, it may in fact be positively harmful, rendering the government’s decision broadly justified. 

Implications 

There are still several barriers to the abolition of all Covid criminal records. For instance, the process is not set to be automatic; rather, it will be necessary to apply to have one’s criminal record expunged. This requires money, time and knowledge that the option is available, all likely to be in short supply among the most disadvantaged communities. 

Nevertheles, this must be regarded as a positive move on the part of the South African government and a recognition that, though Covid laws may have been necessary at the time, those who broke them have already suffered enough. The expungement of these criminal records can therefore be regarded as part of the larger movement back to normality, after the past few years of turbulence.