‘In violation of the rule of law and invalid’: FUL questions Yengeni’s claims of ‘erased’ criminal records

tony yengeni

• ANC NEC member Tony Yengeni successfully appealed his disqualification from competing in the ANC elective conference, on the grounds that his criminal record had been “cleared”.
• Your expungement certificate is now under scrutiny.
• Freedom claims under law the expungement may be invalid and violate the rule of law.

Legal advocacy group Freedom Under Law (FUL) has questioned the validity of ANC member Tony Yengeni’s claims about the expungement of his criminal records.

FUL noted that Section 271B(1) of the Criminal Procedure Act only allows criminal convictions to be expunged if the person in question was sentenced with the option of a fine.

Yengeni was sentenced to four years in prison in 2003 for fraud related to the arms deal, but only served four months.

This week, the ANC member NEC fought for his exclusion from disputed leadership posts, after being told by the party’s electoral committee that he was ineligible to run due to his criminal conviction.

Yengeni chose to fight his exclusion, successfully appealing his disqualification from the ANC leadership race, despite the fact that he was not nominated for a leadership position on the ANC’s national executive committee (NEC).

Questioning Yengeni’s expungement claims, FUL said Section 271B(1) of the Criminal Procedure Act allowed certain misdemeanor convictions to be expunged upon application to the Director General of Justice.

“Its terms do not include a conviction for which the applicant was sentenced, as Yengeni was, to imprisonment without the option of a fine,” it said in a statement.

“FUL is not aware of Yengeni presenting any evidence that his criminal conviction, for which he served a prison term, has been expunged. FUL invites Yengeni, by stating that it has been expunged, or the Director General of the Department of Justice, to produce it”.

FUL maintains that, had such a decision to expunge been made, it would be contrary to section 271B(1), and “in violation of the rule of law, and invalid”.

READ | ‘I have no prior conviction’: Tony Yengeni fights ANC voter exclusion

By law, the CEO is responsible for approving such requests.

Once approved by the DG, the request is forwarded to the Police Criminal Records Center to issue a confirmation of removal.

The Criminal Procedure Act provides that, where a court has imposed any of the following sentences or issued any of the following orders in respect of a person convicted of an offence, the criminal record of that person, containing the conviction and sentence or order in question, must be expunged 10 years after the date of the conviction for that crime, unless during that period the person in question has been convicted of a crime and has been sentenced to imprisonment without option to fine

Police spokesperson Brigadier Athlenda Mathe said the Department of Justice had submitted a certificate of cancellation, signed by the Director General, on May 12, 2014.

“The South African Police Service Crime Scene and Records Management received the Certificate of Expungement on 13 May 2014. The expungement process was followed in accordance with the process determined by regulation and the department’s Standard Operating Procedures .

“The cancellation letter was issued on June 4, 2014 to confirm that the conviction was removed. The criminal records were erased under the terms of Section 271B of the Criminal Procedures Law, No 51 of 1977, as amended,” Mathe said.

When asked for comment, the justice department declined to comment on the matter this week, referring News24 to Tony Yengeni. This is despite cancellation requests being a matter for the DG of the department.