Former president Kgalema Motlanthe. (Photo: Gallo Images / Nardus Engelbrecht) 
In advance of the ANC’s electoral conference, ANC NEC member Tony Yengeni was informed by the ANC’s election committee that he was disqualified in terms of standing for election due to his past criminal record.
Not so fast, said Yengeni — who wrote to committee chair Kgalema Motlanthe to argue that he was indeed eligible. More than 10 years after his prison time, Yengeni stated, he had applied to the Director General of the Justice and Constitutional Development Department for the expungement of his criminal record, which had been granted.
As such, wrote Yengeni, “I would like to make it clear that in the eyes of the law I have no previous conviction and/or sentence”.
Motlanthe accepted Yengeni’s argument, and rescinded the disqualification decision.
Former president Kgalema Motlanthe. (Photo: Gallo Images / Nardus Engelbrecht)
But legal advocacy group Freedom Under Law (FUL) is not convinced that what Yengeni argued is legitimate.
In a statement released on Friday, FUL pointed out that Section 271B(1) of the Criminal Procedure Act only allows for criminal convictions to be expunged if the person in question was sentenced with the option of a fine.
“Its terms do not include a conviction for which the applicant was sentenced (as Mr Yengeni was) to a term of imprisonment without the option of a fine.”
Yengeni was sentenced to four years in prison in 2003 for fraud relating to the arms deal. He eventually served four months, between August 2006 and January 2007.
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Yengeni did not respond to Daily Maverick’s request for comment on Friday afternoon.
Evidence suggests Yengeni’s record was expunged…
Whether Yengeni submitted documentary proof of his record expungement to Motlanthe’s committee is unclear, but the letter informing him of his successful appeal suggested as much.
“The electoral committee has duly decided to uphold your appeal based on the substantive reasons and proof of the expungement of your criminal records as furnished by yourself,” the letter, signed by Motlanthe, stated.
Separately, the committee’s secretary Chief Matsila told EWN that a “police record” had been received showing that Yengeni’s record was expunged.
Further corroboration was provided by News24’s reporting that the Criminal Record Centre “confirmed Yengeni’s record had been expunged, but could not share details about the application”.
…But how could this happen legitimately?
Daily Maverick spoke to advocate Jeremy Gauntlett SC, representing FUL, about the evidence suggesting that Yengeni’s record was indeed expunged.
Gauntlett said the matter was quite simple: “Were it to be shown that [Yengeni’s record] has been expunged, then it’s in conflict with the law.”
The advocate was adamant that there is no legal universe in which Yengeni could have lawfully been granted the expungement of his criminal record on the known facts.
A senior government official speaking to Daily Maverick on condition of anonymity said that he agreed with FUL’s interpretation.
The official raised the question of whether Yengeni could have surreptitiously received a presidential pardon from former president Jacob Zuma, leading to the expungement of the record. Daily Maverick is investigating.
As things stand, the issue may seem academic — as Yengeni has not been nominated to date for a spot on the ANC’s incoming National Executive Committee, let alone a position on the Top Six.
But the pre-conference nominations do not determine the final outcome. Having been cleared to stand for election, Yengeni is now eligible to be nominated by delegates from the conference floor. DM