Hi, i need some advice and direction. I ...

Asked by Francois Schoeman on 02-05-2022 11:43:37
Question posted in the Criminal Law category relating to Gauteng

Hi, i need some advice and direction. I work in the USA under the H2A program for the last 4 yrs now. I had a petty theft conviction 11yrs ago with a R300.00 fine. Eventhough it is expunged it will still be on there system. CBP has flagged my profile so every year i have to apply for a waiver. I am working with a very helpfull Consular now and he wants to remove the flag from my profile. What he needs is something specific that will indicate that if there is jailtime for the conviction it will be less than 1yr and he will be able to clear the flag and i will never have to do the waiver again. I have done alot of research and have found some stuff that i send him but he said it was based on case law. So he wants some specific that will indicate a sentence of less than one year. Regards Francois Schoeman ***BLOCKED-EMAIL-ADDRESS***

Information Requested by Lawyer

Posted by Att. Patrick on 02-05-2022 12:54:47

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 02-05-2022 13:01:17

If you have previously had a criminal conviction in South Africa, and you then were successful with an expungement application, then there should no longer be any record of that criminal conviction on your record. The expungement makes the conviction 'go away' forever. It is like the conviction never existed. 

CBP obviously has flagged your profile because you used to have the conviction on your record, so they know, every year, that you were convicted. That will never go away, because it is there, on the CBP system. The CBP system isn't linked to the SAPS system at all. So the fact that SAPS has expunged your criminal record won't automatically update the CBP system.

In terms of the criminal procedure act (CPA), criminal offences are separated out into different schedules of offences, and different schedules have different punishments. e.g. 3 years or R3000 fine.  I think what you will need to do is to look at the CPA and show how your previous conviction fits into the specific schedule, and then you can see the maximum punishment. Also, all of the punishments are 1 year or R1000 fine, or 5 years or R5000 fine. So you can see that a R300 fine would have resulted in a jail time of maybe 3 months.

But this is how you would go about it, especially if they won't accept examples from case law. 

Also remember that the punishment is at the behest of the court, and that the magistrate has a discretion in R100 or R300 or R1000, so it would actually be quite hard to explain, for 100% certainty, what jail sentence would equate to your R300 fine. 

Information provided by client

hi, thanks for the response. You are the first person that understands what I am looking for and understand that CBP and SAPS are not linked. I did have a look at the CPA but for the man on the street that is a large document. Will you be able to direct me to where in the act I will be able to find the correct information? I have a ONETIME opportunity to hit this out the ballpark and don't want to mess it up. Thanks FS

Answer to the Question

Posted by Att. Patrick on 03-05-2022 12:41:11

Here is a link to the criminal procedure act - https://www.justice.gov.za/legislation/acts/1977-051.pdf

I think that your theft conviction would fall under a Schedule 1 offence, but you should check what you were found guilty of. Also, I'm pretty sure that your actual conviction would have been along the lines of "R300 fine or 3 months in jail", so surely you could provide CBP with a copy of your criminal conviction as proof of how long you would have had to spend in jail if you didn't pay the fine?

Information provided by client

thanks for the link, i will go check that out. Where will i be able to get a copy of my criminal conviction? I have a Clearance Certificate and that only indicates the fine paid.

Answer to the Question

Posted by Att. Patrick on 06-05-2022 16:12:45

Where will i be able to get a copy of my criminal conviction? --> The only place that I can think of is with SAPS or the NPA. It would be the conviction which was handed down and recorded in the criminal case. It wouldn't be a public document.

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