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B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)

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    Expungement | Criminal record? Wipe it clean

    Make a fresh start

    Expungement of criminal record

    If you have a criminal record, no matter how minor the offence, your chances of getting a job are slim. But there is good news. If it’s been 10 years or more since the conviction, you can apply to have your criminal record wiped clean. This is known as “expungement”.

    What is expungement of a criminal record?

    Expungement of a criminal record is a legal process through which you can apply to the Department of Justice to remove any record of previous minor criminal offences from the criminal record database of the South African Police Service (SAPS).

    This process came into effect in 2009 as a result of changes to the Criminal Procedure Act, 1977 (Act 51 of 1997) which made it easier for people to clear their name of a minor offence so that the past was no longer an obstacle to future employment opportunities. The Act was also designed to assist anyone convicted of apartheid era crimes.

    Note that expungement of criminal records differs from restorative justice.

    Are you eligible to have your criminal record wiped clean?

    According to Section 217B(1) of the Criminal Procedure Act, you can apply to have your criminal record expunged if:

    • It has been 10 years since the date of your conviction (if you were 18 or younger when you were convicted you can apply after five years).
    • It was a minor offence, such as petty theft or shoplifting.
    • You were not convicted of any other offence and were given the option of a fine rather than imprisonment.
    • You were told that by paying a fine you would not receive a criminal record and you’ve subsequently discovered that you indeed have a record.
    • You were fined less than R20 000.
    • You received a suspended sentence.
    • Your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

    You do not qualify for expungement if:

    • It has not been 10 years since the conviction.
    • Your name is either listed in or has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
    • You were sentenced to prison without the option of a fine.
    • You received a fine of more than R20 000.
    • You were convicted of a serious crime such as murder, rape other sexual offences, or violent crimes.

    Getting the ball rolling – steps in the expungement process

    1. First obtain a clearance certificate from the Criminal Record Centre of the SAPS proving that 10 years has elapsed since your conviction. This certificate must be attached to your application.
    2. Complete the expungement application forms (Part II and Part III) and, together with the clearance certificate, post or hand deliver them to the Department of Justice and Constitutional Development in Pretoria.
    3. If you meet the requirements set out in section 271B(1) of the Act, you will be notified in writing that your application was successful and that your crime has been expunged. You will likewise receive written notification if your application is denied together with the reasons for this decision. The process usually takes about three months.

    The employment landscape

    One of the biggest challenges facing South Africa is high unemployment, coupled with widespread poverty, high inequality and poor economic growth. The country’s official unemployment rate for job-seekers is 27.2% (Stats SA), but if we accept the broad definition, which includes those who have given up trying to find a job, the true level of unemployment is probably closer to 50%.

    Finding a job is hard enough without the added barrier of a criminal record. Since more and more employers are running background checks on potential employees and are entitled to refuse or terminate employment because of a previous crime, even a minor one, it makes sense to apply for expungement. Any future background checks will not reflect prior convictions.

    Given the gloomy landscape, job seekers must be able to “put their best foot forward”. Don’t let a past mistake determine your future.

    Let our Bail attorneys Cape Town  help you

    Cape Town Lawyers, SD Law & Associates Inc are criminal and bail law experts. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Cape Town Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

    Original article published on SDLaw.co.za

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    DUI – Road safety tips in the festive season

    Government cracks down on drunk driving / DUI

    DUI Road Safety Tips

    DUI – You may have heard Blade Nzimande’s festive season message from the Department of Transport on the radio recently, entreating all of us to stay safe on the roads this month and next. This follows on from the launch of the festive season road safety campaign on November 16th (read the full speech here).

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    DUI? ‘Tis the season for roadblocks

    DUI? A police officer waits on his motorcycle during a roadblock

    The holiday season is almost upon us, bringing with it quality time with family and friends, good food, parties and, of course, the inevitable roadblocks. While these are mostly an inconvenience, they do conjure up fear and anxiety, especially if we’ve contravened the rules – like DUI, driving under the influence of alcohol.
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    Roadblocks? Don’t panic!

    Roadblocks Cape Town - DUI
    Roadblocks may be set up for a variety of reasons, and many daytime roadblocks are designed to check drivers’ licences, examine the roadworthiness of vehicles, and chase up unpaid fines for motoring offences. But it’s the ones at night that set our hearts racing when we see the blue lights up ahead. Continue reading

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    Medical marijuana South Africa – a licensed affair

    Medical Marijuana South Africa

    Medical Marijuana

    As we covered previously, on 31 March the Western Cape High Court ruled that marijuana (dagga or cannabis) can be used by adults in the privacy of their own homes, and may be cultivated for private use. Even before that groundbreaking verdict, South Africans were using marijuana privately for medicinal use, and were doing so legally. So has anything changed as a result of the High Court decision?

     

    Medical uses of cannabinoids

    It has been known for some years that cannabinoids can provide relief for sufferers of a number of conditions. The evidence base is stronger for some therapeutic applications than for others, but that does not mean a lack of efficacy, merely a lack of formal evidence. Research has demonstrated medical benefits for nausea and vomiting associated with cancer chemotherapy, anorexia and cachexia (weight loss) in HIV/AIDS, chronic pain, spasticity in multiple sclerosis and spinal cord injury. Other indications, such as epilepsy, pruritus and depression, are less researched but anecdotal evidence suggests some therapeutic benefits.

     

    Cannabinoids vs. cannabis

    At this point you may be a bit confused by the terminology, and it is worth taking a look at what is meant by ‘cannabinoids’ and what the implications are for their legal use. Cannabinoids are the chemical compounds secreted by cannabis flowers that provide relief to symptoms such as pain, nausea, anxiety and inflammation. They do this by activating specific receptors in the body to produce pharmacologic effects, particularly in the central nervous system and the immune system (source).

    The most common cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD). THC is psychotropic and provides the ‘high’ when cannabis is smoked. It is used in a therapeutic context for its analgesic properties. CBD is non-psychoactive and, in addition to its analgesic qualities, has been shown to be anti-spasmodic and a muscle relaxant.

    Cannabinoids can be administered through the conventional method of smoking cannabis, but this is not necessary and many medical indications for cannabinoids specifically do not use ‘whole plant’ preparations, partly because it is impossible to accurately measure dosage. Cannabinoids can be extracted and prepared in tablet form where the dose can be calculated, and they can also be synthetically produced. In the USA, commercially available cannabinoids, such as dronabinol and nabilone, are approved drugs for the treatment of cancer-related side effects.

    While the legal position regarding the use of cannabis and cannabinoids for medical use varies from jurisdiction to jurisdiction, making it impossible to generalise, it is not uncommon for the use of specific cannabinoids in a pharmacological preparation to be legally approved for therapeutic purposes while use of the whole plant (e.g. smoking cannabis in a joint or pipe) is still prohibited.

    Therefore it is important to fully understand the law and not assume that ‘medicinal use’ is a legitimate defence if caught possessing or distributing marijuana.

     

    The medical marijuana situation in South Africa

    We covered this briefly in the article entitled, A Joint Account – Just How Legal Is Marijuana Following The High Court Ruling?, but let us look at the circumstances surrounding use and supply of medical marijuana in more detail. Cannabis for medically approved therapeutic reasons is permitted within the provisions of the Medicines and Related Substances Act, 1965. Under the Act, “…medical practitioners can apply to the Council for permission to access and prescribe unregistered medicines – including cannabis – for their patients in certain exceptional circumstances. Medicinal cannabis products may thus be made available to specific patients under medical supervision. Only registered medical practitioners may apply for authorisation to prescribe a controlled medicine for a specific patient. Authorisation from Council is dependent on the submission of an appropriate dosage regimen and acceptable justification for the proposed use, and regular reporting to the MCC.” (Source)

    In layperson’s terms, only a qualified medical practitioner (usually a doctor and a few other permitted healthcare professionals) can prescribe cannabis and the treatment must be justifiable and justified by a legitimate complaint and backed up with instructions for use.

    Furthermore, the regulations specifically govern medicines containing cannabis, cannabis extracts, and cannabis-derived substances such as cannabinoids, which have been registered with the MCC, hence our explanation of the distinction between cannabis and cannabinoids. These substances are rescheduled and listed in Schedule 6 to bring them into line with the scheduling status of other restricted medicines, thus allowing patients to access medicinal cannabis products by prescription at a pharmacy. Any cannabis products not registered by the MCC remain in Schedule 7 and technically still illegal, though of course the recent High Court ruling has provided the defence of the right to privacy if one is caught cultivating or using cannabis for one’s own enjoyment.

     

    Sale and distribution of medical marijuana

    It is still against the law to cultivate marijuana for distribution or to distribute it, regardless of its intended use. However, the Medicines Act allows the MCC to issue a licence to manufacture either a medicine or a Scheduled substance (Active Pharmaceutical Ingredient/API), on condition of MCC oversight. Therefore cannabis growers can be licensed if they can prove that cultivation is for medicinal use.

    So, if you succeed in securing a licence to cultivate marijuana from the MCC, don’t hope you can supply the neighbourhood with dagga and get away with it. You will be monitored very closely! According to the regulations: “Cannabis is a prohibited narcotic substance in South Africa, and cultivation for any purpose other than that explicitly allowed for through the licence and permit system under the Medicines Act, is a criminal offence. Likewise, cultivation by non-licensees remains a criminal offense under this legislation.” If you are a legitimate grower of medical marijuana, make sure your licence is valid.

     

    Are you affected by this legislation?

    If you have any questions about the recent High Court ruling or the distribution of medical marijuana, or if you have been charged with an offence concerning cannabis, contact us. Call us now on 087 550 2740 or contact us if you have any questions regarding possession or use of cannabis.

    Posted in Marijuana Legalisation, Medical Marijuana | Tagged , , , , , , , | Leave a comment