ANC National Executive Committee member Tony Yengeni cannot serve as an MP due to his fraud conviction and sentence, according to both ANC and parliamentary criteria.

Candidates nominated for positions in both Parliament and provincial legislatures, according to the ANC, should not have a criminal record.

ANC spokesman Carl Niehaus said the ruling party's criteria is based on what is already stipulated in legislation.

Legislation stated that if one is sentenced to more than 12 months in prison without the option of a fine, they become ineligible.

"It refers to what is already legislation in terms of Parliament," he said.

When asked about Yengeni's eligibility he said: "In terms of ANC and government criteria, no [he is not legible]."

Head of the Wits University Law School Professor David Unterhalter confirmed this, saying the fact that Yengeni had served only four months of his four-year sentence was irrelevant. His sentence exceeded the 12-month period.

Yengeni's name has appeared on the Northern Cape and Gauteng provincial lists. The National List Conference will take place on Saturday and Sunday, and is a key process in determining future holders of government positions should the ANC win the elections.

The national list committee is tasked with screening nominated candidates to ensure that they meet the criteria.

At a press briefing on Wednesday ANC secretary general Gwede Mantashe was vague about the controversial former chief whip's eligibility.

"Now what will we do about Tony Yengeni? I don't know what you know about Tony Yengeni that we do not know about him being on the list... we can't talk about individuals, it can only be journalists who have the license of isolating individuals and talk about them.

"In the ANC we talk about principles and we will deal with this list on the basis of the principles."

Yengeni was elected to the party's leading structure in Polokwane at the end of 2007. He was found guilty in 2004 of fraud and corruption relating to the multi-billion rand arms deal, but entered jail only in 2006, after an unsuccessful appeal against his four-year sentence.

He was released on parole in January 2007, less than five months into the sentence.

ANC Stalwart and controversial former wife of Nelson Mandela, Winnie Madikizela-Mandela, also on the ANC NEC, gained a nomination from her home province.

She resigned from her first stint in Parliament after a fraud and theft conviction which was changed on appeal to just fraud. Her six-year sentence was reduced to a suspended three-and-a-half years.

Niehaus was uncertain about whether Madikizela-Mandela would be eligible or not. However, according to Unterhalter the fraud sentence would make her ineligible to serve in Parliament.