Former Czech national and businessman Radovan Krejcir.
The Mail & Guardian along with other media houses had sought leave to appeal a previous North Gauteng High Court judgment that held that a section of the Refugees Act that permits for the "confidentiality of asylum applications and the information contained therein must be ensured at all times", did not allow the media access to Krejcir's refugee appeal hearing.
Acting for the media, advocate Geoff Budlender on Tuesday argued that section 25(1) of the Refugees Act, which ensures such confidentiality, was "in tension" with the right to freedom of expression guaranteed by the Constitution.
Budlender argued that the Constitution and constitutional jurisprudence had established that "there is no hierarchy of rights" and that "when rights are in tension with each other [as in this case], they must be balanced by each other … One [right] can't obliterate the other." He said this was especially so because of the "commitment in the Constitution" to accountability, openness and transparency – whether for civil and criminal proceedings, or in public administration.
The M&G, Independent Newspapers and Media 24 maintain that it is in the public interest that Krejcir's appeal to the board for refugee status, and how and why it is granted, if it is, is reported upon.
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.
Krejcir's 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. Krejcir however appealed in terms of the Refugees Act.
Krejcir embroiled in fraud
AmaBhungane, the M&G's investigative unit, has detailed Krejcir's relationship with a series of local netherworld figures, including the late strip-club boss Lolly Jackson, and his becoming embroiled in fraud and other charges. Jackson is one of five associates of Krejcir who have turned up dead, along with the likes of Cyril Beeka.
Highlighting the "ugly history of secrecy in apartheid South Africa" which led to abuse of power and corruption, Budlender maintained the importance of transparency and openness in democracies. "Openness", he said in his attack on the "total blanket protection" of confidentiality that the Refugees Act ensures, is "basic to our constitutional order, not an optional extra … There can be no accountability without openness".
Deputy Chief Justice Dikgang Moseneke – noting that society ensured confidentiality "protection for a particular class of vulnerable people", including female survivors of sexual offences, children and the HIV status of individuals – wondered whether there was a need to "calibrate the exception" to section 25(1) of the Refugees Act. Budlender agreed, saying that the act "doesn't allow calibration at all".
Responding to Budlender's remarks that Krejcir "doesn't have a good public reputation", Moseneke pressed the advocate on whether this was not an "irrelevant consideration" in a "constitutionality attack".
Budlender responded saying it was relevant in so far as that the public had a right to know – considering the various allegations swirling around the Czech national – whether proper process had been followed and that if Krejcir was granted refugee status, whether it was not because of improper conduct, that "favours" were given; or because of an "influential connection".
Advocate Susannah Cowen, acting for amicus curie, the South African Litigation Centre, had then argued that "truth finding" was prevented by the confidentiality provisions in the Refugees Act.
Cowen argued that the "open justice principle" required the discretionary opening and closing of cases to the public for both judicial and quasi-judicial hearings. She also raised concerns about Krejcir's lawyers "wholly blinkered" approach to section 25(1) and the assertion that its reach was "very extensive".
Constitutional law heavyweight Gilbert Marcus, acting for Krejcir, had argued that the rights to "dignity" and "freedom of the person" had to be equally considered when the Constitutional Court was balancing the rights in tension – and that it was "impermissible" to focus on freedom of expression over other equal rights.
Applicants protected by confidentiality
Marcus has also sought to emphasise that the public airing of refugees' information could lead to the "risk of retaliation" against asylum seekers' families in the country of origin.
When quizzed by Moseneke on whether the "absolutism" of Refugees Act confidentiality provision was justified, Marcus responded that the "efficacy of the asylum system" required that applicants were protected by confidentiality.
"It is essential that [asylum seekers] know in advance that confidentiality is protected at all times," said Marcus, who maintained that this would ensure full disclosure of personal information by asylum seekers.
Responding to questions by Moseneke and Chief Justice Mogoeng Mogoeng about reading in a discretion to the confidentiality regime, Marcus argued that the "very purpose" of the confidentiality regime "will be negated by discretion".
"If discretion existed, it would be a disincentive to disclose fully," said Marcus.
The Refugees Appeal Board had, in the lower courts, argued that the Refugees Act did not allow it discretionary powers to decide whether cases it hears should be opened or not.
The Constitutional Court will now have to decide on whether the Refugees Act does actually allow for discretion on the part of the board, or not. It must also decide whether section 25(1) is constitutional and if not, whether it is required to send it back to Parliament to address.
The court will also mull over whether it can fill (if it considers there is one) any hole in the act around confidentiality and exceptions to the provision of the Refugees Act in the interim. – Additional reporting by amaBhungane.