Last year Radovan Krejcir was charged with armed robbery but the charge was withdrawn.
The Constitutional Court must grapple with how to balance several fundamental rights, following the application by three media houses to have it review whether there should be blanket confidentiality for asylum seekers who want refugee status in South Africa.
The matter was heard by 10 judges of the court in Braamfontein, Johannesburg, on Tuesday after the Mail & Guardian, Independent Newspapers and Media 24 sought leave to appeal a North Gauteng High Court judgment that held that section 25(1) of the Refugees Act, which allows that the "confidentiality of asylum applications and the information contained therein must be ensured at all times", did not allow the media to have access to Czech national Radovan Krejcir's refugee appeal hearing.
The counsel for the media, advocate Geoff Budlender, noted that there was a tension between the rights to access information and freedom of expression and that of confidentiality, which was protected by section 25(1) of the Act. He noted, too, that the "commitment in the Constitution to openness and transparency" and, subsequently, accountability in the functioning of the state and the decisions it made required that exceptional hearings such as Krejcir's be open to public scrutiny.
He advanced the position that introducing a discretionary element for exceptional cases to the current blanket ban on public airing of these hearings would remedy the apparent unconstitutionality of section 25(1).
Krejcir, who arrived in South Africa in 2007 on a passport bearing the name Egbert Jules Savy, is a controversial character. He was picked up on an Interpol red notice by South African authorities because he was wanted for tax fraud and other offences in his native Czech Republic. He has since been convicted in absentia on some of these charges.
His associates, including bouncer boss Cyril Beeka and strip-club owner Lolly Jackson, also have the nasty, Sopranoesque habit of turning up dead.
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.
Proper process
It is the refugee appeal board hearings that the media argue are of public interest, as is whether refugee status is granted to Krejcir, and the process that led to the decision.
Public scrutiny of the process was significant, Budlender maintained, to ensure "proper process" was followed and that, if Krejcir did receive refugee status, it was not because of "favours" or "influential connections".
Representing Krejcir, advocate Gilbert Marcus advanced the position that his client's rights to "dignity" and "freedom of the person" had to be considered equally 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.
Marcus also emphasised that the public airing of refugees' information could lead to the "risk of retaliation" against asylum seekers' families in the country of origin.
When asked by Deputy Chief Justice Dikganag Moseneke whether the "absolutism" of the Refugees Act's 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.
Some of South Africa's decisions to grant refugee status to individuals have caused controversy. The Southern African Litigation Centre has challenged government's decision to grant refugee status to a former Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa.
Increasing pressure
Nyamwasa, who is the subject of an arrest warrant and extradition request from Spain, is alleged to have ordered war crimes – committed on displaced Hutus on the border between Rwanda and the Democratic Republic Congo while he serving in the Rwandan army between 1994 and 1998.
The matter was set down for final argument in the South Gauteng High Court on May 17.
Applications for refugee status are becoming increasingly controversial around the world, especially as there is increasing pressure from civil society groups for adjudication processes and government attitudes to move away from criminal-based to human rights approaches.
But there are nettles. The British authorities were criticised when, in 2011, the immigration and asylum tribunal in Wales granted refugee status to Phillip Machemedze, a Zimbabwean national who had worked at the notorious Central Intelligence Organisation (CIO).
Machemedze admitted to smashing the jaw of a Movement for Democratic Change supporter and using pliers to pull out his teeth. He also admitted to kidnapping and torturing several MDC activists, including a farmer thought to be funding the party, electrocuting and beating him until he lost consciousness.
Machemedze was granted asylum by the tribunal after it ruled that Machemedze, who had since left the CIO and fled Zimbabwe with his wife, who claimed to be an MDC activist, would be in mortal danger if he was returned to Zimbabwe.