Disclosure: Webber Wentzel is representing the appellants in this matter. Duncan Wild, Greg Palmer and Ben Winks have been involved in the instruction. The author of this post is independent of Webber Wentzel and has not been involved in the matter.

By Michael Dafel on 29 April 2013.

In this matter, members of the media have called on the Constitutional Court to determine the constitutionality of section 21(5) of the Refugees Act 130 of 1998.  The provision states that ‘the confidentiality of asylum applications and the information contained therein must be ensured at all times’.  The media argue that the provision is unconstitutional in so far as it entails a blanket ban on media access to Refugee Appeal Board (“the RAB“) hearings.  They argue that the RAB must be vested with a discretion on whether, and on what conditions, to allow media access to an asylum hearing.  The state, on the other hand, argues that a blanket ban is necessary to ensure the safety of asylum applicants as well as their family and witnesses.

This case stems out of a decision of the RAB to refuse members of the media access to the asylum appeal of Radovan Krejcir.  Mr Krejcir is a fugitive from the Czech Republic, and since entering South Africa on a false passport in 2007 has been allegedly linked to crimes committed in South Africa.  Owing to the refusal, the media approached the High Court for an order reviewing the RAB’s decision on the grounds that it should have interpreted section 21(5) as affording it a discretion to permit media access, or alternatively declaring section 21(5) unconstitutional to the extent that it doesn’t afford such a discretion.  The North Gauteng High Court held that, although the provision limits the section 16 right to freedom of expression, this limitation is nonetheless reasonable and justifiable owing to the need to protect asylum applicants.  The media’s interest in access to the hearings was substantially outweighed by the privacy and dignity interests of asylum seekers, the safety of their witnesses, and the integrity of the asylum system as a whole.

Before the Constitutional Court, all parties agree that section 21(5) limits the right to freedom of expression; the dispute therefore revolves around the reasonableness and justifiability of the limitation in terms of section 36 of the Constitution.  Central to the arguments of the media is the importance of freedom of expression particularly in the context of ‘open justice’.  They argue that blanket bans on public access to the proceedings of courts and other public bodies are antagonistic to the democratic principles of transparency, accountability and fair process.  Although the limitation serves a legitimate purpose (integrity of the process and the protection of applicants and witnesses), the media argues that these interests will not be detrimentally affected if the RAB is entrusted with a discretion.  This discretion will allow the RAB to determine access on a case-by-case basis and will further allow the RAB to impose necessary conditions to protect these interests, like witnesses’ anonymity.  The media finally contend that, should the provision be found unconstitutional, the Court should ‘read in’ a discretion to permit media access in cases of exceptional public interest, and that they should be granted access to the hearing of Mr Krejcir in terms of this discretion.  The material aspects of Mr Krejcir’s story, which he contends is confidential, is already in the public domain largely owing to Mr Krejcir’s voluntary disclosures.

Mr Krejcir and the State (the Chairperson of the Refugee Appeal Board and the Minister of Home Affairs, jointly represented by the State Attorney) oppose the media’s application on substantially similar grounds.  They argue that the blanket ban is reasonable and justifiable as it serves to protect the confidentiality and security of the asylum seeker and witnesses.  For them, a less restrictive means of providing the RAB with a discretion is an unsuitable alternative, as it would deprive asylum seekers of an absolute assurance of confidentiality, which they contend is essential to the integrity of the asylum system.  In support of their arguments, they rely extensively on the United Nations High Commission on Refugee’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status.  In this handbook, states are encouraged to create a ‘climate of confidence’ during asylum application proceedings and to ensure that the ‘applicant’s statements must be treated as confidential’.  Doing so will ensure that potential asylum seekers will have confidence in the process, and that all relevant information is declared by them and their witnesses without fear of reprisals.  The confidentiality also ensures that relatives of the applicant will be protected particularly if they reside in the country from which the asylum applicant seeks refuge.  Mr Krejcir and the State submit that if the Court declares section 21(5) unconstitutional, the matter must be remitted to Parliament to remedy the defect.

This matter requires the Court to strike an appropriate balance between two substantially important interests, a task that is undoubtedly made more difficult owing to the state’s international law obligations to ensure the protection of refugees.

All the written submissions of the parties are available for download here.