Mail and Guardian Media Limited and Others v Chipu N.O. and Others Case CCT 136/12 -  ZACC 32 (27 September 2013)
The Constitutional Court of South Africa has upheld a challenge to the constitutionality of section 21(5) of the Refugees Act, which provides for the absolute confidentiality of asylum applications in South Africa. The Court declared that the absolute confidentiality of asylum applications was an unjustifiable limitation on the constitutional right to freedom of expression and gave Parliament two years to remedy the defect in the legislation. In the interim, the Refugee Appeal Board (RAB) has been given a discretion to allow third parties access to hearings in particular circumstances.
Mr Krejcir, a Czech national, applied for asylum in South Africa in 2007. After arriving from the Seychelles on a fake passport, Mr Krejcir was initially granted a temporary asylum seeker's permit. His subsequent application for asylum was, however, refused. Mr Krejcir appealed to the RAB for a review of that decision.
Mr Krejcir's arrival and presence in South Africa has been of great interest to the media. Various allegations have been raised, including that he obtained his asylum seeker permit fraudulently, has been involved in organised crime in both the Czech Republic and while in South Africa and has been linked to a number of murders and other fraudulent activity.
The applicants in this case, Mail and Guardian Media Limited, Independent Newspapers (PTY) Limited and Media 24 Limited, requested the RAB’s permission to have journalists attend Mr Krejcir’s appeal hearing, in order to report on the proceedings. Their requests were refused by the RAB on the basis that section 21(5) of the Refugees Act provides that "confidentiality of asylum applications and the information contained therein must be ensured at all times". The applicants sought to have the RAB's decision set aside in the High Court on the basis that the RAB had discretion to allow access to its proceedings. In the alternative, the applicant's sought to have section 21(5) of the Act declared inconsistent with the right to freedom of expression contained in section 16 of the Constitution.
In his decision, Fabricius J of the High Court determined that section 21(5) of the Act did constitute a limitation on the constitutional right to freedom of expression, particularly on the "freedom of the press and other media" and "the freedom to impart information or ideas". Emphasising the importance of confidentiality to the integrity of the asylum process however, Fabricius J held that this limitation was "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom", as contemplated by section 36 of the Constitution. Accordingly he dismissed the appeal.
The applicants appealed this decision to the Constitutional Court. The main issue on appeal was whether the requirement of absolute confidentiality in RAB proceedings was a justifiable limit on the right to freedom of expression under the Constitution. The Southern Africa Litigation Centre (SALC) was permitted to make submissions as amicus curiae.
The unanimous judgment of the Constitutional Court was delivered by Zondo J. Zondo J held that as a blanket proscription against access to the proceedings of the RAB, section 21(5) of the Act was an unreasonable and unjustifiable limitation on the right to freedom of expression and was invalid.
In arriving at this decision Zondo J emphasised the importance of the right to freedom of expression, and in particular freedom of the press, in a functioning democracy. Zondo J also acknowledged the importance of confidentiality to the integrity of the asylum process, particularly the importance of protecting asylum applicants and their families from retribution should information of their application be disclosed.
As required to do by section 36(1)(e) of the Constitution, Zondo J also investigated whether there might be a less restrictive way in which the right could be limited to achieve the purpose of the Act. After considering relevant international jurisprudence, Zondo J found that a less restrictive limitation on the right to freedom of speech could be achieved by providing the RAB with a discretion to allow access to its appeals in particular circumstances. On that basis Zondo J found section 21(5) of the act to be invalid.
While counsel for the applicant submitted that the appropriate remedy would be to read-in an amendment to the Act, Zondo J declined to do so on the basis that such an amendment to the Act was most appropriately the responsibility of parliament. Instead, Zondo J suspended the declaration of invalidity for a period of two years to allow Parliament an opportunity to remedy the defect. For the intervening period, Zondo J crafted a temporary reading-in order, conferring a discretion on the RAB to allow any person to attend and report on its hearings, only upon application and on only under certain conditions. The reading-in order provides that the discretion must be exercised with due regard to relevant factors, such as whether the asylum seeker consents to the third party’s access and whether it is in the public interest to allow such attendance.
While it remains to be seen whether the RAB will exercise the discretion given to them to allow media access to Mr Krejcir's asylum application appeal, this case demonstrates the tensions in balancing competing rights and individual protections. As Zondo J recognised, the confidentiality of the majority of asylum applications is crucial to ensuring the integrity of the asylum process and ensuring that those seeking protection from persecution in their home countries feel safe to do so. On the other hand, transparent and open justice is a fundamental democratic principle and having media and public scrutiny of a judicial process can assist in maintaining the integrity of the process itself.
A copy of the decision is available here: http://www.saflii.org/za/cases/ZACC/2013/32.html
Daniel Wiseman is a Graduate at Lander & Rogers