The main issue was the constitutionality of section 21(5) of the Refugees Act. That section provided that the “confidentiality of asylum
applications and the information contained therein must be ensured at all times”, thus preventing any member of the public or the media from attending asylum application proceedings. The applicants argued that this provision constituted a limitation on the freedom of the press and other media, as well as the freedom to receive or impart information or ideas, and that it was thus unconstitutional.
The court a quo recognised the limitation, but the limitation was held to be justifiable given the importance of confidentiality to the integrity of the asylum process, and was thus not unconstitutional. The appellants argued that the limitation was not justified, and the respondents contended that a rule of absolute confidentiality is required in order to maintain an effective asylum system, and therefore that section 21(5) constitutes a reasonable and justifiable limitation on the right to freedom of expression.
The Southern Africa Litigation Centre (SALC) was admitted as an amicus curiae. SALC’s concern was that the requirement of absolute confidentiality in asylum proceedings renders the asylum system vulnerable to abuse, compromising South Africa’s obligations to ensure accountability for international crimes.
The Constitutional Court held that, to the extent that section 21(5) does not confer a discretion upon the RAB to allow access to its proceedings in appropriate cases, the limitation on the right to freedom of expression is unreasonable, unjustifiable and accordingly invalid. The Court suspended the declaration of invalidity for a period of two years to allow Parliament an opportunity to remedy the defect. The Court crafted a temporary reading-in order, conferring a discretion on the RAB, on application and on conditions it deems fit, to allow any person to attend and report on its hearings. This discretion must be exercised with due regard to relevant factors, such as whether the asylum seeker consents to the third party’s access or whether it is in the public interest to allow such attendance.
Constitutional law; constitutional validity of national legislation; asylum proceedings; confidentiality of asylum proceedings; media freedom; freedom of expression
Section 21(5) of the Refugees Act provided that asylum applications were to be treated as confidential and could not be attended by members of the public or media. There was some media attention on the application of Mr Radovan Krejcir, a Czech national who had been tied to organised crime in South Africa. Three newspaper companies requested permission from the Refugee Appeal Board (RAB) to have journalists present during Mr Krejcir’s appeal hearing in order to report on the proceedings, and were refused. They challenged the lawfulness of the RAB's decision and the constitutionality of the provision.
The appeal succeeds. To the extent that section 21(5) does not confer a discretion on the Refugee Appeals Board to allow access to its proceedings, it is inconsistent with the Constitution and invalid. The court set out factors to be considered in the exercise of this discretion.
The court opted to invalidate the section only in part, insofar as it does not confer a discretion on the RAB. This solution was as a less restrictive means by which the purpose of the limitation may be achieved than the one contained in section 21(5). They submit that the Appeal Board should be given a discretion to allow the media and the public access in appropriate cases on such conditions as the Appeal Board may impose and to refuse access in those cases in which it would not be appropriate to allow the public or media access to the information. The court referred to the laws of other countries and noted that other jurisdictions had not adopted absolute confidentiality as a requirement as has been done by South Africa in the form of section 21(5). The discretion granted by this order to the RAB is also not unfettered, as it is limited by other laws around confidentiality of judicial or quasi-judicial proceedings.