ANC ELECTS 2022
How did Tony Yengeni’s criminal record get expunged? Legal experts dispute validity
ANC NEC member Tony Yengeni successfully appealed against his disqualification from election at the ANC’s leadership conference on the basis that his old criminal record had been expunged. But advocacy group Freedom Under Law says that this is legally impossible.
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Motlanthe accepted Yengeni’s argument, and rescinded the disqualification decision.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
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I would listen to Jeremy Gauntlett’s version of the law before I would give credence to Yengeni’s opinion.
Seriously 🤣😩
So once again the ANC is above the law. Every ANC member that is not a threat to the top eschelons is above the law
This clearing of Yengeni’s criminal record sounds to me like a typical nationalistic act to protect “cadres” against the law as happens in just about all nationalist governments – and exactly the same kind of thing that Fraser did so illegally with the sentence of Jacob Zuma.
So true, one criminal pardons another. How else can the ANC protect the cadres?
The levels to which these guys go, is just incredibly!
Is a criminal record no longer a prerequisite for high office in the ANC ?
For the sake of upholding the rule of law I encourage Freedom Under Law to pursue this matter to its logical legal conclusion.
I agree. I agree. I agree.
Tony Yengeni may not been in the eyes of the delegates or a factor and be considered for NEC. The electoral commission helped him by putting him on the spotlight as it was making rules as it was going to the Conference. How he has been in the NEC which Motlanthe served in for years and this was not raised then but it is raised now brings questions to the fore. It also raises question on whether rules made are retrospective with legal questions on the legality of the rules that it makes as it goes. They have helped Tony Yengeni to receive attention of delegates. What is the legal position to expunge a criminal record whether it matters is another without raising the legality of exclusion of long serving members of the NEC how repugnant they are. You have a lot of very questionable elements within that NEC. Thandi Modise was privately prosecuted and was acquitted but Afriforum has appealed the matter yet she is allowed to be nominated. She has never been asked to step aside. You have the Premier of the Eastern Cape with Mandela funeral funds hanging over his head and not cleared. We are being fed what is expedient and people that have been pigeon holed by some journalists. We need a balanced view of issues and facts not what a legal person disputes. The fact is that Tony Yengeni has his criminal record expunged the same thing that judges in the Eastern Cape change court decisions based on a mere letter. But we do not have Dail Maverick questionng this glaring legal anomaly.
When you catch a four year old with its hand in the cookie jar, it normally responds with “ but mommy, sister Sarah took a cookie yesterday”.
Fact is fact : Yengeni was convicted and imprisoned for corruption. He should be nowhere near the levers of power
Surely a presidential pardon should not undermine the rule of law?
So his second drunken drive charge was expunged to keep him out of jail for the second time and now his theiving conviction has been “lifted” and or expunged! The ANC gangsters certainly look after thier own!