In 2007, notorious Czech national, Mr Radovan Krejcir, applied for asylum in South Africa. His application was refused in October 2008. Thereafter, Mr Krejcir appealed to the RAB. The applicants, three national media houses, requested the RAB’s permission to have journalists present at this appeal application hearing in order to report on the proceedings. Their requests were refused based on the Refugees Act.

The applicants initially launched review proceedings in the North Gauteng High Court to have the RAB decision to refuse media access set aside and, in the alternative, an order declaring section 21(5) of the Refugees Act unconstitutional to the extent that it precludes members of the public or the media from attending and reporting on RAB proceedings in any circumstances. The High Court found that section 21(5) of the Refugees Act is a reasonable and justifiable limitation on the right to freedom of expression and dismissed the application.

The Constitutional Court disagreed. The main issue that the court faced was whether the requirement of absolute confidentiality in proceedings before the RAB is a justifiable limitation of the constitutional right to freedom of expression. The applicants argued that absolute confidentiality was an unjustifiable limitation of the right to freedom of expression and requested that the court read provisions into the Refugees Act which conferred a discretion on the RAB to allow the media or the public to attend and report on certain hearings if appropriate.

The respondents argued that absolute confidentiality was necessary to maintain an effective asylum system, and to protect the security and dignity of asylum applicants in particular, and that this constituted a reasonable and justifiable limitation on the right to freedom of expression.

The Constitutional Court upheld the appeal, set aside the decision of the North Gauteng High Court and declared section 21(5) inconsistent with the right to freedom of expression as guaranteed by the Constitution “to the extent that it does not confer a discretion upon the [RAB] to allow access to its proceedings in appropriate cases”.

This declaration of invalidity was suspended for a period of two years to enable Parliament to correct the constitutional defect. Pending the correction of the defect, or the expiry of the two year period, whichever comes first, section 21(5) of the Refugees Act is to be read as empowering the RAB to allow media access to its hearings if either the asylum seeker consents or it is in the public interest for them to do so. Various factors set out in the judgment need to be taken into consideration including the risk of harm to asylum seekers and whether the information is already in the public domain.

Webber Wentzel acted for the applicants, M&G Media Ltd, Independent Newspapers (Pty) Ltd and Media 24 (Pty) Ltd in this matter.