M&G fights to access Krejcir hearing
Should this man – the Ferrari-driving, expletive-spouting, country-skipping, cash-toting, bouncer-trailing body magnet with about five dead associates so far that is Radovan Krejcir – be automatically granted the confidentiality accorded to so-called "vulnerable groups" simply by applying for refugee status?
This is the issue that was being tested in the North Gauteng High Court in Pretoria this week as the Mail & Guardian asked the court to grant media access to Krejcir's Refugee Appeal Board application.
Krejcir arrived in South Africa in 2007 on a passport bearing the name Egbert Jules Savy, but was picked up on an Interpol red notice because he was wanted for tax fraud and other offences in his native Czech Republic.
Five years and the best lawyers money can buy later and Krejcir is still here, despite hooking up with a series of local netherworld figures, including the late Lolly Jackson and Cyril Beeka, and becoming embroiled in fraud and other charges. His application for refugee status, based on allegations that the Czech authorities were persecuting him for political reasons, was rejected by his home affairs case officer, but Krejcir then appealed in terms of the Refugees Act.
On January 20 2011, the M&G wrote to the registrar of the Refugee Appeal Board, seeking permission to attend its hearing, which was scheduled for later that month.
Asylum applications are generally held behind closed doors, but the M&G believed that the public interest in this case justified giving the process greater transparency, especially given Krejcir's demonstrated ability to get close to senior law enforcement officials and politicians.
The registrar informed the M&G that, "in terms of the Refugee Appeal Board rules, 2003, those hearings are not open to the public due to the nature of their confidentiality".
In April 2011, the M&G went to court to interdict the board hearing until the issue of media access was decided.
It is this issue that is now to be decided by Judge Hans Fabricius, although the arguments put forward by both sides raise constitutional issues and the matter is likely to end up in the Constitutional Court whichever way the high court rules.
The board and Krejcir argue that it has no authority to grant access to Krejcir's appeal hearing.
They rely on section 21(5) of the Refugees Act, which states that asylum applications and the information relevant to them "must be kept confidential at all times".
The M&G, along with Independent Newspapers and Media24, argue that this cannot be interpreted as a blanket ban on access or disclosure.
Such a blackout on access to judicial or quasi-judicial tribunals would be contrary to constitutional precepts of accountability and openness, the media houses claim, particularly the requirement for "open justice".
"If the confidentiality provision of the Act means what the respondents say it does, there can never be any disclosure in any refugee case. That would be inconsistent with the Constitution," they say in court papers.
Advocate Alfred Cockrell told Judge Fabricius: "The state's argument that a blanket rule of no access is good balance between speech and privacy is like arguing that a bonsai is a tree. Even if customary international law says refugee hearings should be confidential, it can't override our Constitution."
However, the high-powered team assembled by Krejcir, led by the constitutional law heavyweight advocate Gilbert Marcus, claims that asylum tribunals are not courts and their "exceptional" function places them outside the bounds of public oversight.
"The constitutional challenge of the media rests substantially on the 'open justice' principle that has been developed primarily in the context of court proceedings, rather than in relation to statutory tribunals."
The principle cannot be uncritically transplanted to the realm of the tribunal, Krejcir's lawyers argue. They add that even courts will restrict access in the interests of justice or vulnerable groups such as children. Refugees are one such vulnerable group.
"Most of the cases relied on by the media … deal with whether the tribunal properly exercised a discretion to refuse media access in circumstances where the relevant statute was silent on the issue or expressly conferred such a discretion.
"This is not such a case. On the contrary, the statute expressly requires confidentiality. An extremely powerful case would have to be made for this court to conclude that Parliament's choice was not constitutionally permissible."
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.