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Concourt rules section of Refugee Act unconstitutional

Sam Sole

The Concourt has ruled partly in favour of media houses seeking to have the constitutionality of a section in the Refugee Act reviewed.

The Constitutional Court's ruling means media houses will have to apply to the Refugee Board of Appeals for access to Radovan Krejcir's extradition hearing. (M&G)

The Constitutional Court has ruled partly in favour of a joint application brought by the Mail & Guardian, Independent Newspapers and Media24 seeking leave to appeal a high court decision in December – on the constitutionality of a section in the Refugee Act.

The media initially made a request to the Refugee Appeals Board (RAB), to gain access to an appeal application hearing for Czech-fugitive Radovan Krejcir, who is seeking asylum in South Africa.

This request was refused and so the media companies launched a review application of the RAB's decision in the high court in Pretoria.

Krejcir faces charges of fraud and kidnapping in his home country. He fled to the Seychelles and arrived in South Africa in 2007 where he was granted a temporary asylum-seeker's permit.

In October 2008, Krejcir's asylum application was refused – a ruling he is currently appealing. The media companies have alleged that Krejcir has become, for the purposes of South African media law, a public figure – and he is a person who has "serious allegations of criminality" levelled against him.

Krejcir is fighting efforts to extradite him back to the Czech Republic. It is alleged that he fears persecution.

The high court review application was based on "whether it is appropriate for there to be a blanket ban on media coverage of all appeals before the Refugee Appeal Board".

In favour of the state
The Refugee Act states in section 21(5): "The confidentiality of asylum applications and the information contained therein must be ensured at all times."

On this basis, Pretoria high court judge Hans Fabricius dismissed the application in favour of the state and Krejcir – both had opposed the media's application.

The media houses approached the Constitutional Court earlier this year to appeal the judgment.

The central issue of the matter, as noted by Constitutional Court Justice Ray Zondo on Friday morning, was whether the requirement of absolute confidentiality is a reasonable and justifiable limitation to the right to freedom of expression in the Constitution.

Fabricius had held that a "blanket ban on access by the general public" is justified because an asylum seeker may choose not to present certain evidence if the proceedings are not confidential.

However, in Friday's judgment handed down at the Constitutional Court in Braamfontein, the court set aside Fabricius's ruling and found in favour of the media's application for leave to appeal.

The Constitutional Court found section 21 (5) of the Refugees Act to be invalid in that it allowed for no case in which media or public access to the information might be justified.

The court found that to the extent that the section of the Act does not allow "a discretion upon the Refugee Appeals Board to allow access to its proceedings in appropriate cases, the limitation on the right to freedom of expression is unreasonable, unjustifiable and accordingly invalid."

'Remedy the defect'
The court has suspended the declaration of invalidity for two years, during which time Parliament will have an opportunity to "remedy the defect".

While this is good news for the media, the court did however refuse its application to make an order that the Refugee Appeals Board permit access to Krejcir's appeal hearing.

Among the reasons for this ruling was that the judgment handed down on Friday will allow the appeals board the "discretion to relax the requirement of confidentiality".

The media will now have to seek permission from the RAB to attend Krejcir's hearing. This decision will be made based on criteria which include whether the asylum-seeker, in this case Krejcir, gives his consent to the media’s attendance and whether the RAB concludes that it is in the public's interest for the media to attend.

The argument for the media houses' attendance, as raised by their counsel, advocate Geoff Budlender, before the Constitutional Court in May, is that the RAB hearings are of public interest, as is whether Krejcir is granted refugee status and the process that led to the decision.

Public scrutiny of the process was significant, Budlender said, to ensure "proper process" was followed and that, if Krejcir did receive refugee status, it was not because of "favours" or "influential connections".

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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.


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