CONSTITUTIONAL COURT OF SOUTH AFRICA
Mail and Guardian Media Limited and Others v Chipu NO and Others Case No: CCT 136/12 Date of Hearing: 14 May 2013
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday 14 May 2013 at 10h00 the Constitutional Court will hear an application brought by the Mail and Guardian Media Limited and others (applicants) for leave to appeal against a decision of the North Gauteng High Court, Pretoria (High Court) concerning the constitutionality of a provision of the Refugees Act which provides that the “confidentiality of asylum applications and the information contained therein must be ensured at all times.”
The issue is whether absolute confidentiality is a justifiable limitation of the right to freedom of expression under the Constitution.
The second respondent, Mr Radovan Krejcir, left the Czech Republic and came to South Africa in 2007. His application for asylum was refused in October 2008. He appealed to the Refugee Appeal Board (RAB). The applicants made a request to the RAB to be allowed to have journalists present during Mr Krejcir’s appeal hearing and to report on the proceedings.
Their requests were turned down.
The applicants launched a review application in the High Court to have the decision of the RAB set aside. In addition, pending the finalisation of the review application, the applicants sought to interdict the RAB from continuing with the appeal hearing of Mr Krejcir. In the alternative, the applicants sought an order declaring section 21(5) of the Refugees Act unconstitutional to the extent that it absolutely precludes members of the public or the media from attending and reporting on asylum applications or appeals.
The High Court held that the relevant section of the Refugees Act constituted a limitation of the freedom of the press and other media, and the freedom to receive or impart information or ideas as provided for in the Constitution. However, the blanket ban on access by the public was held to be constitutionally justifiable. The Court therefore dismissed the application and declared section 21(5) of the Refugees Act to be constitutional.
Before the Constitutional Court the applicants argue against an inflexible rule of confidentiality, contending that it is an unjustifiable limitation of their right to receive and impart information. The applicants seek an order to read into the Refugees Act that the RAB has a discretion to allow any person or persons to attend a hearing and to publish a report or reports on the hearing, subject to any conditions determined by the Board. In the present case, the applicants argue that the information concerning Mr Krejcir is in the public domain and therefore not confidential and that the particular circumstances of this case would permit a departure from the rule of confidentiality.
The respondents submit that section 21(5) of the Refugees Act constitutes a reasonable and justifiable limitation on the right to freedom of expression.
The Southern Africa Litigation Centre (SALC) has been admitted as a friend of the Court.
SALC is concerned that an asylum system which sees confidentiality as absolute will render the asylum system vulnerable to abuse by placing its administration beyond the purview of constitutional safeguards and compromising South Africa’s obligations to ensure accountability for international crimes.
