Should South Africa Expunge Covid‑Era Criminal Records? A Return to Normality or an Unfair Reward?

What Is the South African Government Doing

Justice Minister Ronald Lamola has confirmed that South Africa will implement a policy to expunge criminal records for breaches of COVID lockdown rules. These offences include failing to comply with the nationwide curfew and attending unauthorised mass gatherings. All Covid regulations have since been repealed.

Authorities arrested more than 400,000 people in 2020 for contravening these laws. Unlike jurisdictions such as the United Kingdom, South Africa imposed criminal records rather than fines alone. Critics argued that this disproportionately harmed poorer communities who broke regulations out of necessity. The decision to reverse these records has generated significant debate.

Is Expungement the Right Decision

The impact of a criminal record

A criminal record can severely restrict a person’s life. It can prevent international travel, limit access to employment involving children and create barriers to entering the job market. Although employers in South Africa may not legally discriminate based on a criminal record, applicants must still disclose their history. This often creates stigma and reduces trust. Social consequences can also follow, with communities distancing themselves from individuals whose reputations have been damaged.

These long‑term consequences explain why criminal guilt must be proven beyond reasonable doubt. The state recognises that only serious wrongdoing justifies such a penalty.

Do Covid offences meet this threshold?

Covid regulations were legally binding at the time. They were revoked because the public health threat diminished, not because they lacked legitimacy. On this basis, those who broke them technically committed criminal offences. This suggests that expungement may undermine the principle that people must obey laws while they are in force.

However, the purpose of criminal records must also be considered.

What Are Criminal Records For

Criminal records serve three broad purposes:

• Public safety They allow employers to make informed decisions about candidates.
• Deterrence They discourage individuals from committing crime by imposing long‑term consequences.
• Punishment They recognise the harm caused to the state and restrict certain freedoms.

Do these purposes apply to COVID offences

Public safety COVID regulations no longer exist. The risk of reoffending is negligible. Retaining records does not protect the public. In fact, unemployment caused by discrimination may push individuals into more serious crimes of necessity. Expungement may therefore improve public safety.

Deterrence The laws are no longer in force, so deterrence is irrelevant. Even during the pandemic, many offenders acted out of desperation. Reports show people were arrested simply for trying to earn a living and feed their families. For those already struggling, the threat of a future criminal record was unlikely to influence behaviour.

Punishment From both utilitarian and natural law perspectives, punishing the most vulnerable is ethically questionable. Many offenders were low‑income workers whose livelihoods disappeared during lockdown. They may have disobeyed the state, but the state also failed them. Removing their records may help restore fairness and expand future opportunities.

If criminal records no longer serve their purposes, retaining them becomes unnecessary and potentially harmful.

Implications

The expungement process will not be automatic. Individuals must apply to have their records removed. This requires time, money and awareness of the policy. These barriers may prevent the most disadvantaged from benefiting.

Even so, the policy represents a meaningful step towards post‑pandemic normality. It acknowledges that COVID laws were exceptional and that those who broke them have already endured significant hardship. Expungement may help restore dignity and allow people to rebuild their lives.